Tanzania Law Reports - 1998

Civil Practice and Procedure - Applications -Application made under wrong provisions of law - Application incompetent

Land Law - Joint ownership of land - Brother inviting fellow brother to jointly develop property belonging to the former - Whether joint ownership is thereby established
Land Law - Joint ownership of landed property - Owner of property invites a brother to jointly develop the property - Whether the children of the invited brother have any right in the property

Criminal Law — Theft-Defences-Defence of Bona Fide claim of right -Whether the defence is available to a wife charged with stealing husband’s property

Civil Practice and Procedure -Appeals - Essential steps to institute an appeal - Appeal not instituted one year after obtaining copy of record of trial court proceedings - Whether essential step not taken
Civil Practice and Procedure - Court record - Presumption that court record represents what happened - Whether court record can be impeached

Civil Practice and Procedure -Appearance -Appearance by persons holding powers ofattorney - Whether a person resident in Tanzania may appear by such attorney
 Civil Practice and Procedure - Pleadings - Signing of pleadings -Written Statement of Defence not properly signed - Consequences thereof
Civil Practice and Procedure - Appeals - Record of Appeal -Document not placed before the trial court but included in the record ofappeal - Effect thereof
Civil Practice and Procedure - Award of interest - Rate of interest that the  court may award- Whetherthe interestrate applicable is the rate prevailing at the time of judgment
Civil Practice andProcedure - Relief -Relief not pleaded at the trial- Whether appellate court can consider reliefnotpleaded at the trial Labour Law - Unlawful termination - Employee unlawfully terminatedfrom employment - Whether employee is entitled to leave or payment in lieu of leave during the period under unlawful termination

Court of Appeal - Revisional Powers - Decision oftrial courtfalls under the provisions of s.5(2)(a)(i) of the Appellate Jurisdiction Act 1979 - Whether powers of revision and not an appeal may be invoked to challenge the decision
Civil Practice and Procedure - Change ofAdvocates - Whether change of advocates in handling case constitutes sufficient cause amounting to special circumstances under s.3(4) of the Appellate Jurisdiction Act 1979 as amended by Act No. 17 of 1993
Civil Practice and Procedure - Appeal - Right to appeal - Decision made under order XV rule 1 of the Civil Procedure Code 1966 -Whether the decision is appellable 
Civil Practice and Procedure - Limitation oftime - Application for revision filed 14 months after decision - Whether or not the application is time barred 

Civil Practice and Procedure - Appearance - Non-appearance by the Plaintiff  - Suit dismissed for non-appearance of the plaintiff - Application to set aside the order of dismissal - Whether the Court should consider the merit of the suit dismissed
Civil Practice and Procedure - Counter claim - Counter claim for damages granted ex-parte -without proof - Whether proper in law

Natural Justice - The right to be heard-Initiating procedure and the right to be heard - Advocate suspended from practice pending reference to the High
Court- Whether the advocate was entitledto a hearing before beings uspended — Section 22(2)(b) of the Advocates Ordinance and art,13(6)(b) of the Constitution ofthe United Republic 
Basic Rights -Forced Labour- Prohibition offorced labour - Statutory legal aid scheme imposing a requirement upon advocate to provide legalservices - Whether the scheme amounts toforced labour - Section 3 of the LegalAid  (Criminal Proceedings) Act 1969 (No. 21 of 1969) and art. 25(2) of the Constitution of the United Republic
Basic Rights - The right to a just return for one’s work - Statute prescribing TShs 500/- as the maximum fee payable to an advocate for acting in a proceeding or representing an accused person - Whether a denial of the basic right to a just return for one’s work - Section 4(2) ofthe Legal Aid (Criminal Proceedings) Act 1969 (No.21 of 1969), and art. 23(2) of the Constitution of the United Republic
Constitution - Separation ofPowers and Functions - Legislative powers and processes - Whetherthe executive has any role or duty to influence orinitiate legislation -Article 59(3) ofthe Constitution of the United Republic and s. 5 of the Constitution (Consequential, Transitional and Temporary Provisions) Act 1984, Act No. 16 of 1984
Statute—Applicability ofstatutoryprovision -Provision of an Act of Parliament requiring the High Court not to declare unconstitutional a statutory provision that offends the Constitution - Applicability thereof - Section 13(2)(a) of the Basic Rights and Duties Enforcement Act 1994, Act No. 33 of1994
Bill of Rights - Breach of Bill of Rights - Damages for breach of constitutional right - Whether damages may be awardedfor contravention of the Bill of
Rights - Article 30(3) of the Constitution of the United Republic Damages - Special Damages - Special damages not specifically pleaded but evidence and arguments heard on them - Whether the court may award such damages

Criminal Practice and Procedure - Appeals - Appeal against a ruling -Petition of Appeal accompanied by a copy of the ruling and not a copy of the order - Whether appeal is competent
Statute - Interpretation of Statute - Order - Whether meaning of the word "order" includes a ruling -Section 362(1) of the Criminal Procedure Act 1985

Civil Practice and Procedure - Joinder and Misjoinder of parties -Directors joined as co-defendants in a suit against their company -Whether the D directors are proper or necessary parties - Order I rule 10(2) of the Civil Procedure Code 1966
Civil Practice and Procedure - Pleadings - Verification of pleadings - Written statement of defence signed by advocate only and without express authorization by the defendants - Whether the verification is valid
Civil Practice and Procedure - Pleadings — Verification of pleadings - Purpose of verification - Requirements governing verification of pleadings - Order VI rules 14 and 15 of the Civil Procedure Code 1966

Civil Practice and Procedure - Government Proceedings - Suits against the Government - Application for leave to file a representative suit against the Government - Whether application requires a 90 days ’ prior notice like a suit - Section 6(2) ofthe Government Proceedings Act 1967 Civil Practice and Procedure -Representative suit -Application for leave to file a representative suit- Whether applicant may seek leave without first establishing existence of numerous persons interested and willing to join in the suit- Order Irule 8 ofthe Civil Procedure Code 1966

Civil Practice and Procedure -Representative suits - Application for leave to file a representative suit- Whether leave to file a representative suit may be sought after the representative suit has been filed - OrderIRule 8 of the Civil Procedure Code 1966
Civil Practice and Procedure -Representative suit-Application for leave to file a representative suit- Whether application for such leave may befiled as an interlocutory application
Some 34 persons filed a suit in court and itwas registered as Civil Case No. 297 of 1997. Twenty days later the 1st Plaintiff in that case brought this application seeking leave to represent the 33 others in that suit. The defendants objected to the course taken by the applicant as unprocedural.

Civil Practice and Procedure -Extension of time to file document -Application for extension oftime to file document made after the document is already filed out oftime - Whether application for extension oftime proper and competent
Civil Practice and Procedure -Extension oftime -Extension sought in order to cover a delay that is not excessive and not causing injustice or prejudice to the other party - Principles to be considered by court in determining applications for extension of time
Administrative Law - Application for prerogative orders - Intervention by a party against whom no remedy is sought - Party not cited as respondent but the orders sought will affect its proprietary interests - Whether may intervene and oppose application for the orders

Natural Justice - The right to be heard - Goods ordered from abroad by applicant knowing that the Minister has granted tax and import duty exemption on them -Minister changes his mind and revokes the exemptions - Whether the applicant was entitled to a hearing before revocations
Estoppel Representation relating to an event promised for the future - Whether giving rise to estoppel
Administrative Law-Exemption orders-Orders exempting customs duty and sales tax - Whether the orders have legislative effect -Sections 3(1) and 26 of the Interpretation of Laws and General Clauses Act 1972
Administrative Law - Exemption orders - Publication in the Gazette -Whether customs duty and sales tax exemption orders must be published in the Gazette to be valid - Section 7(1) of the Customs Tariff Act 1976 and s.28(l) of the Sales Tax Act 1976

Criminal Law — Doctrine of Recent Possession - Link between commission of offence andpossession by appellant interrupted by intervening possession - Whether doctrine ofrecent possession can apply
Criminal Practice and Procedure - Sentencing - Imposition of consecutive sentences - Trial court magistrate imposing consecutive sentences of 30 years ’ imprisonment and 12 strokes ofcorporal punishment making it 60 years and 24 strokes - Whether practically significant and justifiable

Criminal Law - Obtaining credit by false pretence - Money obtained for use in a proposed business partnership which then fails to progress - Whether that amounts to obtaining credit by false pretences - Section 305(1) of the Penal Code 
Criminal Practice and Procedure - Charges - Charge not disclosing any offence - What the court should do - Section 129 of the Criminal Procedure Act 1985 
Criminal Practice and Procedure - Adduction of facts after plea of guilty - Prosecution ordered to adducefacts in the absence of the accused - Whether proper - Section 226(1) ofthe Criminal Procedure Act 1985
Criminal Practice and Procedure - Discharge of accused person -Accused person reaching a compromise with the complainant -Whether the accused is thereby discharged

Land Law — Mortgages — Mortgagee‘s remedies — Mortgagee right of sale of mortgaged property - When the right accrues
Land Law - Mortgages - Mortgagee's right to sell mortgaged property - Whether right to sell may be exercised without proof of lawful demand to pay being served on the mortgagor- Section 110 of the Land Registration Ordinance 
Banking - Mortgages - Mortgagee’s remedies - Right to sell mortgaged property - Right to sell exercisable only when the money is due - When the money on the mortgage may be said to have become due

Criminal procedure – Bail – Forfeiture of surety bond – Requirements for ascertaining genuineness of accused’s absence – Unlawful forfeiture without proper inquiry – Procedure where accused claims illness.

Elections - Election petitions - Meaning of election petition - Elections Act
1985
Elections - Election petitions - Jurisdiction to hear election petitions under
the ElectionsAct 1985 - Whetherresident magistrate's court hasjurisdiction

Criminal Practice and Procedure -Burden of proof - Accused raises a defence - Whether the accused is under a duty to prove his defence
Criminal Practice and Procedure -Exhibits in criminalproceedings -Exhibit taken from the accused being different from the exhibit tendered in evidence against that accused person - Duty to explain the difference is on the prosecution

Advocates - Professional Ethics - Advocate acting as an arbitrator and subsequently acting as counselfor one ofthe parties in court in the same dispute - The Rules of Professional Conduct and Etiquette of the Tanganyika Law Society

Judicial Review - Practice and Procedure -Applicationfor leave to apply for prohibition and mandamus - Whether affidavit supporting the application for leave mustfully andfrankly disclose all material particulars
Prerogative Orders - Locus Standi - Application for leave to apply for prohibition and mandamus - Locus standi where the objective of application is to defend the applicants ’ interest in land to be acquired for road expansition - Whether all applicants have to establish their titles to the parcels ofland they claim
Prohibition and Mandamus - Locus Standi - Meaning of locus standi - Whether and when locus standi can be raised as an issue in proceedings for prerogative remedies
Prerogative Orders - Prohibition and mandamus - Purpose and essence thereof- Whether prerogative orders can be granted in cases where civil remedies in the nature of civil process are available
Civil Practice and Procedure - Security for Costs - Resident applicants ordered to deposit security for costs - Whether proper

Contract - Failure of Performance - Contract to supply a bull to do farm work - Bull supplied not capable offarm work and storms back to supplier - Whether contract performed and consideration furnished
Civil Practice and Procedure - Adjournment - Trial court refusing an adjournment and proceeding with trial in the absence of defendant’s advocate - Whether proper
Contract - Damagesfor breach ofcontract - Damages awarded for loss of expected harvests without evidence of the extent ofsuch loss Whether properly awarded

Labour Law - Disciplinary authorites - Employees on secondment - Disciplinary authority in respect of seconded employee
Natural Justice - Right to be heard - Employee given right of hearing by institution to which he isseconded and not heard by the employer seconding the employee - Whether employee denied the right to be heard
Tort - Defamation - Defences - Qualified privilege — Communication of statement to a professional body of the employee at the request of such body - Whether defence of qualified privilege is sustainable

Civil Practice and Procedure - Appeals - Appeal against decision overruling preliminary objection - When maintainable
Landlord and Tenant - Vacantpossession and public interest- Granting vacant possession in order to accommodate a public library - Whether in the public interest

Civil Practice and Procedure - Summary Procedure - Limitation of time to institute summary proceedings
Civil Practice and Procedure - Summary Procedure - Limitation of time to institute summary proceedings - Whether an admission in the Written Statement of Defence waives the limitation period to institute summary proceedings - OrderXLII rule 9 ofthe Civil Procedure Decree  Law of Limitation -Summary Procedure - Whether limitation is waived by an admission in the. Written Statement of Defence - Order XLII rule 9 of the Civil Procedure Decree

Land Law - Acquisition of Title to Land - Offer of a right of occupancy accepted within the prescribed time - Description of the land in the accepted offer being differentfrom description ofthe same land in the certificate of occupancy - Whether the title is valid
Judicial Notice - Explanatory Notes to subsidiary legislation -whether court should takejudicial notice of such notes
Land Law - Possession ofland - Owner of land situated in Dar es Salaam being away in Moshi - Whether that owner is in possession
Trespass - Trespass to land -Entry into land whose owner is away -Whether it is intrusion upon land in the possession of another
Trespass - Trespass to land - Entry into land not knowing that it is another person s land - Whether the entry constitutes trespass
Damages - Damages for trespass - Damages payable without proofofactual loss or damage

Local Government - Suits against local government authorities -Notice of intention to sue localgovernment authority - Whether requirement of notice to sue seeks to exempt local government authorities from suits - Section 183(1) ofthe Local Government (District Authorities) Act 1982
Local Government- Suits against localgovernment authorities -Requirement of notice to sue local government authority - Whether non-compliance with the requirement of notice deprives court the power to entertain the suit
Local Government - Suits against local government authorities -Suit instituted without prior notice under s. 183(1) of the Local Government (District Authorities) Act 1982 - Hearing of the suit proceeds with local government
authority's acquiescence -Effect thereof

Customary Law - Sambaa customary law - Wills - Requirements for validity of an oral will under customary law -Local Customary Law (Declaration) Order 1963, GN 436/1963
Islamic Law - Wills under Islamic Law - Whether special formalities required in making a will under Islamic Law

Criminal Practice and Procedure - Conviction in Absentia - Procedure of handling convict after conviction and sentence in absentia - Section 226 of Criminal Procedure Act 1985

Licence - Revocation ofLicence -Notice to revoke Bureau de Change licence -Letter demanding explanation why a cheque has not been paid - Whether constituting a Notice to Revoke -Regulation 11(3) of the Foreign Exchange (Bureau de Change) Regulations 1992, GN 51/1992
Civil Practice and Procedure - Proceedingfor prerogative remedies - Giving evidence in proceedingsforprerogative remedies - Evidence given through affidavits
Evidence -Evidence in proceedingsforprerogative remedies - Facts given in submissions by counsel but not contained in affidavits - Whether the facts amount to evidence
Licence - Revocation of Licence - Reasons for revocation of licence - Regulations requiring notice ofrevocation to be given before revocation - Whether it is necessary to give reasons for revoking licence

Evidence -Confessions - Confession made to a Police Officer - Whether admissible - Section 31 ofthe Evidence Act 1967
CriminalPractice and Procedure -Interrogation of suspects-Suspect detained for interrogation going on beyond a period of 4 hours - Whether permissible - Section 50 of the Criminal Procedure Act 1985
Criminal Practice and Procedure - Trial within a trial- Obtaining practice
Criminal Practice and Procedure - Sentencing - Concurrent sentences - Whether concurrent sentence can be ordered to run with any other term a person is undergoing for related offences - Section 36 of the Penal Code

Criminal Practice and Procedure - Bail- Denial ofBail- Whether denial of
bail amounts to treating an accused person like a convicted person
E Criminal Practice and Procedure - Bail- Statutory provision prohibiting the
grant ofbail to accusedpersons - Whether theprohibition is constitutional
- Section 35(3)(g) ofthe Economic and Organised Crime Control Act 1984

Civil Practice and Procedure - Appeals - Appeals to the Court of Appeal - Appeals originating from primary courts-Need for Certificate that appeal involves a point of law - Time frame in which to apply for the certificate - Section 5 of the Appellate Jurisdiction Act 1979

Civil Practice and Procedure - Legal Representation - Attorney General and law officers there under - Whether state attorneys may appear in court to represent a parastatal corporation that is not a government department - Legal Practitioners Decree and rr. 4 and 2 of the Legal Practitioners Rules (Z)
 

Civil Practice and Procedure - Interlocutory Proceedings - Meaning of interlocutory proceeding - "Interlocutory proceedings defined"
Civil Practice and Procedure - Preliminary Objection - Preliminary Objections under the Court of AppealRules - Preliminary Objections to Applications - Rule 100 not applicable.

Criminal Law - Murder - Defence ofInsanity - Medical evidence of insanity - Utility ofdoctor's evidence of insanity
Criminal Law -Insanity - Test ofthe defence of insanity 
Criminal Law - Murder - Diminished responsibility - Whether diminished responsibility is recognized as a defence under the law of Tanzania

Civil Practice and Procedure - Arbitration -Reference to arbitration - Claim for money admitted but theparty admitting refuses to pay - Whether there is a dispute to refer to arbitration .
Civil Practice andProcedure - Reference to arbitration -High Court dismisses suit and refers parties to arbitration without establishing that the party opting for arbitration is ready and willing to arbitrate - Whether proper — Section 6 ofthe Arbitration Ordinance, Cap 15

Criminal Practice and Procedure - Appeal - Appeal against conviction and sentence upon a plea of guilty — Whether appeal is competent - Section 360 (1) ofthe Criminal Procedure Act 1985
Criminal Practice and Procedure - Pleas - Plea ofguilty - Extra judicial statements tended in court as exhibits without their contents being read out to the accused persons - Accused persons not objecting to tendering them - Whether it amounts to unequivocal admission of the contents of the exhibits
Criminal Practice and Procedure - Pleas - Plea of guilty - Recording of plea of guilty - Three accused persons recorded as collectively having no
objection to the tendering of exhibits - Whether it amounts to admission of the exhibits as evidence against them

Elections - Election petitions - Meaning of election petition - Elections Act 1985
Elections - Election petitions - Jurisdiction to hear election petitions under the ElectionsAct 1985 - Whether resident magistrate  court has jurisdiction

Evidence - Corroboration - Evidence needing corroboration - In a trial for murder: evidence for the prosecution given by a brother of the deceased - Whether needing corroboration
Criminal Practice and Procedure -Final submissions in criminal trials - Right of reply by the prosecution -Sections 296 and 201 of the Criminal Procedure Act 1985
Criminal Law - Murder - Malice aforethought - Death from injuries inflicted in the course ofa squabble at the end ofa drinking session and in which no lethal weapon is used - Whether malice aforethought is established

Civil Practice and Procedure - Execution - Stay of execution pending appeal - Applicationfor stay ofexecution where there are no prospects of the intended appeal taking off
Civil Practice and Procedure -Execution - Stay of execution pending appeal - Stay of execution sought 8 years after judgment was entered and time to take essential steps to prosecute the appeal has expired -Whether grant of stay of execution fair and just

Court ofAppeal- Jurisdiction -Reviewpowers - Whether the Court of Appeal has jurisdiction to review its own decisions
Jurisdiction — Inherent jurisdiction - Whether the Court of Appeal has inherent jurisdiction -Inherentjurisdiction defined

Torts - Tort and customary law - Cattle trespass - Whether cattle trespass and crop destruction is a tort known to customary law

Civil Practice and Procedure -Limitation of time -Power of the High Court to extend time tofile appeal- CivilAppealfrom the District Court filed in time but erroneously filed in the High Court instead of the District Court as required under the law - Whether High Court may extend time to file the appeal in the proper court - Sections 25(1) and (3) of the Magistrates Courts Act 1984 and 21(1) of the Law of Limitation Act 1971

Criminal Practice and Procedure - Sentencing - Orders of compensation in criminal cases - Court orderspayment of compensationfor values not proved - Whether proper
Evidence - Proof of guilt in criminal cases - Appellant convicted upon uncorroborated evidence that was not water tight and was tendered by accomplices and persons with particular interests oftheir own -Whether the case was proved beyond reasonable doubt

Subsidiary legislation - Staff Regulations for Cooperative Unions -Staff Regulations to apply for all cooperative unions in the country not yet made by the competent authority - Respondent union makes own staff regulations for itself - Whetherthe regulations made are valid -Sections 20(2)(c) and 165(2)(h) of the Cooperative Societies Act 1982
Human Rights - Basic rights and duties under the Constitution - The right to work - Whether the right to work imposes a duty to employ or to continue employing a person - Article 22 of the Constitution of the United Republic of Tanzania 1977

Civil Practice and Procedure -Parties to a suit-Partyjoined to a suit by trial court acting suo motu - Whether proper
Civil Practice and Procedure - Misjoinder ofparties - Party irregularly joined by trial court order and not objected throughout the trial — Consequences thereof— Order 1 rule 13 ofthe Civil Procedure Code 1966
Land Law — Customary land rights — District Commissioner sets village boundaries and excludesfrom the village boundary land held by some village residents under customary law - Whether their right to that land is thereby extinguished - Land Ordinance, Cap 113
CivilPractice and Procedure - Liability ofvillage chairman — Village chairman ordering his villagers to implement decision of village meeting - Whether the village chairman is personally liable

Criminal Practice and Procedure -Bail- Forfeiture ofbail bond - Trial court ordering forfeiture ofbail bond without first ascertaining genuineness of the reasons givenfor thefailure ofthe accused to attend court- Whether proper

Evidence -Identification Parade - Identification ofaccusedperson by way of identification parade — Value of identification parade proceedings where the identifying witness is not called to testify in court - Sections 164(c) and166 of the Evidence Act 1967