Tanzania Law Reports - 2000

Electoral law – Avoidance of election – Statements during campaign exploiting tribal differences – Section 108(2)(a) Elections Act, 1985 – Whether prejudicial statements suffice to void election irrespective of effect – Standard of proof for corrupt practices and other electoral misconduct – Duty of trial court to consider and weigh all material evidence.

Criminal Law -Defilement - Ingredients of the offence - Section 119 of the Penal Decree Chapter 13.

Evidence -Circumstantial evidence -Definition of circumstantial evidence -When circumstantial evidence may support a conviction.

Evidence - Corroborative evidence - When to be applied — Meaning and function of corroborative evidence.

Evidence — Expert evidence - when and how expert evidence is applicable.

Registry — Misconduct — Exchequer receipt issuedfraudulentlly -Exchequer receipt with a forged date.

Advocates — Misconduct committed on instructions of advocate -Advocate’s misconduct- Advocate’s deceit calculated to mislead court to make a wrong  finding of fact is an attempt to pervert the course of justice.

Tort - Tortious liability of a retailer - Whether instances of such liability are limited.
Tort - Negligence - Instead ofsupplying battery acid appellant supplied JIK and gratuitously topped up the battery with JIK -Battery damaged - Whether appellant tortuously liable.
Tort - Vicarious liability - Servants of appellant acted negligently during the course of employment - Appellant vicariously liable.
Tort - Damages - Special damages in tort - Special damages must be specifically pleaded and strictly proved.
Damages - Special damages - Special damages must be specifically pleaded and strictly proved.

Civil Practice and Procedure - Leave to defend a summary suit- Oral application to file a supplementary affidavit made by an advocate recently instructed — Order XXXV, rule 3 and Order XII, rule 2 of the Civil Procedure Code and sections 68(e) and 95 ofthe Civil Procedure Code.
Civil practice andprocedure -Inherent jurisdiction - Statute containing specific provision under which the court may be moved to take a particular action - Inherent powers of the court should not be invoked for such action.

Elections - Votes ofregistered voters who did not vote - Pro-rata apportionment of
Elections — Free andfair elections — Chaos during elections -Whether elections can be said to be free and Fair.
Elections - Nullification of- Racist statements - Whether sufficient to nullify elections - Section 108(2)(a) Elections Act 1985.

Civil practice and procedure - Judgment - Foreign judgment - Regard given to a foreign judgment on a matter adjudicated upon between the same parties - Section 8 of the Civil Procedure Decree Chapter 8.

Civil practice and procedure - Judgment - Foreign judgment -Presumption that a foreign judgment was made by a Court of competent jurisdiction - Section 9 of the Civil Procedure Decree Chapter 8.

Criminal Law — Cognate offences - Appellant charged with but acquitted of the offence ofsoliciting the commission of an offence c/s 390 ofthe Penal
Code - Appellant convicted ofcontempt ofcourt instead - Whether proper.

Criminal Law - Contempt of Court — Person convicted of Contempt of Courtfor an act not committed in the face ofthe court - Whether conviction proper - Section 114 the Penal Code.

Civil Practice and Procedure - Framing of issues - Issue not pleaded -Whether the court has power to decide a case on an issue not pleaded.
Civil Practice and Procedure - Framing of Issues - Issue not argued — Court decides case on an issue not argued - Whether it is proper.
Civil Practice and Procedure - Framing of Issues - Power ofCourt to frame additional issue — Duty of the court to inform the parties.

Civil Practice and Procedure - Execution - Stay of execution of High Court order — Power ofCourt ofAppeal — Rule 9(2)(b) of the Court of Appeal Rules 1979
Civil Practice and Procedure - Jurisdiction — Jurisdiction of the court- Whether parties may, by agreement, conferjurisdiction on a court.

Civil Practice and Procedure - Discretion - Exercise of discretion-Principles underlying exercise ofsuch discretion - Order XLII, rule 2, sections 68(e) and 95 ofthe Civil Procedure Code 1966 and section 2(2) of the Judicature and Application of Laws Ordinance.
Civil Practice and Procedure - Orders - Preservatory measures -Whether may be made in the absence of a suit.
Civil Practice and Procedure - Balance ofconvenience - Guiding principles.
Civil Practice and Procedure - Preservatory measures - Whether judgment for monetary payments is a preservatory measure.

Civil practice and procedure — Natural justice — Leave co defendant not given opportunity to cross examine witnesses and to defend himself against the suit - A denial of justice.
Civil practice andprocedure — Appeals - Leave to appeal to the Court ofAppeal - Leave granted by the High Court outside prescribed period - Rule 43 (a) of the Tanzania Court of Appeal Rules 1979.
Court ofAppeal — Revisional powers - Serious irregularities in the three courts below — Section 4(3) ofthe Appellate Jurisdiction Act 1979 as amended by Appellate Jurisdiction (Amendment) Act 1993.

Criminal Practice and Procedure — Conviction - Conviction on a plea of guilty - Appellant convicted on own plea of guilty of manslaughter while the facts narrated revealed accidental killing - Whether the appellant was properly convicted.

Criminal Practice and Procedure - Sentencing - Sentence for manslaughter. Appellant sentenced to seven years ’ imprisonment -Whether the sentence is proper.

Administrative Law - Prerogative orders -Interim relief-Application for interim relief pending intended appeal against refusal of application for leave to apply for Judicial Review - Whether the High Court may entertain such an application for interim relief.

Court of Appeal - Full bench — An ordinary Court referring a matter of law for decision of the same Court sitting as full bench of five justices - Basis therefore.

Contract - Sanctity of contract - English principle of sanctity of contract not excluded in the Law of Contract Ordinance Chapter 433 - Part of the law of contract of this country.

Contract law - Interpretation of expression “shall not be operative” under the Land Regulations 1948 and 1960 - Section 2(2) of the Law of Contract Ordinance Chapter 433.

Land law - Land Regulations, 1948 and 1960 — Interpretation of expression “shall not be operative" under the Land Regulations 1948 and 1960 — Section 2(2) of the Law of Contract Ordinance Chapter 433.

Statute - Interpretation of statute - Meaning of the expression “shall not be operative” - Land Regulations 1948 and 1968 and section 2(2) of the Law of Contract Ordinance Chapter 433.

Criminal Practice and Procedure - Preliminary hearing - Section 192(3) of the Criminal Procedure Act 1985 — Contents of Memorandum of Matters agreed not read over and explained to accused - Effect thereof- Section 192(3) of the Criminal Procedure Act 1985.

Criminal Practice and Procedure — Preliminary hearing - Contents of Memorandum of Matters agreed — Cautioned and extra-judicial statements made and admitted by accused must be incorporated - Section 192(3) of the Criminal Procedure Act 1985.

Criminal Practice and Procedure - Restitution - Restitution of property in revisional proceedings - Section 353(3) of the Criminal Procedure Act 1985.

Criminal Practice and Procedure - Charges - Charge not disclosing any offence - Whether proper to put charge to the accused- Section 129 of the Criminal Procedure Act 1985.

Criminal Practice and Procedure - Revision - Power of Court to revise irregular proceedings - Section 4(2) of the Appellate Jurisdiction Act 1979.

Evidence — Presumption of existence off act - Whether person found in possession of property of murdered person at the time of the murder may be presumed to have taken part in his murder - Section 122 of the Evidence Act 1967.

Evidence - Lies - When lies by an accused person can be considered in determining his guilt.

Civil Practice and Procedure - Revisional powers of the High Court under section 79(1) of the Civil Procedure Code 1966 -Application raising matters proper in an appeal — When an application for revision should be made.

Criminal Practice and Procedure - Plea - Change of plea - Accused pleaded guilty and then requests to change plea - Whether the court may reject the request.

Labour Law — Appointment in subsidiary companies — Subsidiary company only recommends appointment but actual appointment is made by the Holding Corporation - Whether contract of employment was made with the subsidiary company.

Labour Law - Holding Corporation which is the appointing authority transfers an employee from its one subsidiary company to another — Whether transfer is implicit - Whether transfer constituted breach of contract of employment.

Labour Law - Damages arising out of termination of contract of employment - Whether payable by a subsidiary company with which employee worked.

Civil Practice and Procedure - Stay of Execution of a decree - Application for stay of execution in Court of Appeal — Time within which to apply for stay of execution.

Civil Practice and Procedure - Limitation - Limitation period in respect of application for stay of execution in Court of Appeal - Reasonable time within which to apply.

Civil Practice and Procedure - Appeals - Appeals to the Court of Appeal - Case originating from Primary Court - A certificate on a point of law obtained - Whether Leave to Appeal is necessary.

Civil Practice and Procedure - Appeals - Court of Appeal Rules  Appeals from decisions of High Court in its appellate jurisdiction - Matter originating from Primary Court — Whether a decree of the High Court required - Court of Appeal Rules.

Civil Practice and Procedure — Decrees — High Court exercising appellate jurisdiction - Decree signed by the Registrar - Whether valid - rule 89(a) of the Court of Appeal Rules 1979.

Probate and administration - Will- Validity of a will - Will prepared by a testator alleged to be physically and mentally incapacitated and not able to understand the contents of the will - Whether the will is valid.

Probate and Administration — Will - Validity of a will - Burden of proving the validity of a will - Burden on the party propounding it.

Will- Capacity of testator - Expert evidence on capacity of the testator- Whether evidence is conclusive.

Criminal Practice and Procedure - Legal Representation -- Right of accused to legal representation — Accused showed intention to be represented - whether trial court may proceed without giving chance to the accused to get legal representation - Section 310 of the Criminal Procedure Act, 1985.

Criminal Practice and Procedure - Change ofmagistrate-Magistrate withdrew/disqualified himselffrom hearing the case — Whether the same magistrate may continue to hear the same case.

Criminal Practice and Procedure — Retrial- Retrial not to be ordered where it is likely to cause injustice to the accussed.

Criminal practice and procedure - Exhibits - Disposal of exhibits after closing prosecution case — Effect thereof - Section 353(1) ofthe Criminal Procedure Act 1985.

Evidence — Confessions - Confession made in consequence of a temporal inducement resulting from violence - Whether proper.

Evidence - Confessions - Appellant forced to make admission of guilt in his cautioned statement - trial court must give due consideration to the matter.

Judgment — Judgment does not meet the statutory requirements -Judgment bad in law.

Company law - Appointment of Receiver and Manager - Effect of such appointment on tax liability of the company.

Tax law - Sales tax - Penalty on sales tax - Penalty due after appointment of Receiver - Whether such penalty collectable as preferential debt - Section 26(2) of the Sales Tax Act 1976 and sections 78 and 259(2) of the Companies Ordinance Chapter 212.

Administrative Law - Disciplinary Committee of Parastatal Organ - Decision of, on merits and substance — Whether appellable.

Civil Practice and Procedure - Mediation process - Order for costs may be made against defaulting or unprepared party unless exceptional circumstances exist —Instance of exceptional circumstances. Order 8A, rule - Civil Procedure Code 1966.

Criminal Practice and Procedure - Death of Accused - Accused person dies before completion of the case against him — What the court should do.

Customary law - Waarusha Customary Law -Dispute over ownership of a piece of land - Directive of clan council — Consequences of failure to comply with directive of clan council.

Land law - Customary land law - Dispute over ownership of a piece of land - A Haarusha Customary Law - Directive of clan council - Consequences of failure to comply with directive of clan council.

Civil Practice and Procedure -Jurisdiction - Whether a magistrate with Extended Jurisdiction can preside over the High Court — Section 45 of the Magistrates’ Courts Act 1984 as amended by Acts Number 2 and 17 of 1996.

Jurisdiction - Whether a magistrate with Extended Jurisdiction can preside over the High Court- Section 45 of the Magistrates ' Courts Act 1984 as amended by Acts Numbers 2 and 17 of 1996.

Evidence - Documentary evidence - Admissibility of document required to be stamped but not stamped - Contract of sale of a house not stamped - Whether the contract may be admitted in evidence - Sections 5 and 46(1) of the Stamp Duty Act 1972 and section 73 of the Civil Procedure Code.

Stamp Duty - Failure to affix stamp duty on an instrument - Effect thereof - Sections 5 and 46(1) of the Stamp Duty Act 1972.

Constitutional Law – Court of Appeal powers – Revisional jurisdiction and legislative powers. Company Law – Provisional liquidators – Procedural requirements in winding up proceedings.

Criminal Practice and Procedure - Recording of evidence - Trial Magistrate failed to sign the evidence of every witness contrary to section 210(1) of the Criminal Procedure Act 1985 - Whether the failure is curable - Section 388 ofthe Criminal Procedure Act 1985.

Criminal Practice and Procedure - Trial Magistrate failed to inform the appellant of his rights to call witnesses in his defence and also to request the court to assist him to compel their attendance by a court order — Section 231(4) of the Criminal Procedure Act 1985 - Whether the failure was fatal.

Court of Appeal Rules - Appeals - Decisions and decrees of the High Court resulting from proceedings under the Probate and Administration Ordinance Application for stay of execution Whether Leave to Appeal is a pre-requisite.
Court of Appeal Rules References Procedure for filing Whether a written application must be supported by affidavit.

Probate and Administration Ordinance Chapter 352 - Probate, and Administration Proceedings - Where section 53(b) applied - Whether nature of proceedings changes into suit.

Criminal Practice and Procedure - Substituted charge - Charge read over the accused then substituted and re-read - Whether conviction on substituted charge was proper.

Criminal Law - Sentencing — Court imposed sentence - Sentence as provided by the Minimum Sentence Decree.

Criminal Law —Minimum Sentence — First offender sentenced under Minimum Sentence Decree - Whether the sentence was severe.

Natural Justice - rule against bias - Labour Conciliation Board chaired by a labour officer who had deliberated on the same matter before its reference to the board - Whether the board was not biased.

Islamic Law - Administration of Estates - Deceased professed Islam until he died intestate - Law applicable in distributing his estate.

Islamic Law - Inheritance - Children born out of wedlock - Whether a child born out of wedlock can inherit deceasedfather s estate.

Islamic Law - Administration of Estates - Assessment ofthe widows “thumni ” — Whether the court should take into consideration the extent of the widows active participation in running the deceased’s shop.

Court of Appeal Rules - Applications - Duty to serve Notice of Motion and accompanying affidavits - Whether the duty to serve is on the Court Registry or on the applicant - Rules 52(1) and 53(1) of the Tanzania Court of Appeal Rules 1979.
Court of Appeal Rules - Notice of Motion-Failure to serve Notice of Motion on  the respondent two clear days before the hearing - Effect thereof

Judicial Review — Grounds for Judicial Review of an administrative decision - Power to terminate an employee vested in the Permanent Secretary - Decision to terminate made on the basis of a report submitted by a committee set up to enquire into the allegations made against the applicant - Whether the decision was intra vires.
Natural justice Right to be heard Applicant given 7 days to give his explanations about allegations against him Applicant gives explanations and is subsequently questioned about the same by a committee of inquiry before submitting its report - Whether the applicant's right to be heard was breached.

Trade Marks - Registration Procedure in opposing registration of trademark - rules 46 to 58 of the Trade Mark rules. Government Notice Number 256 of 1958.

Civil Practice and Procedure Appeal - Appeal from decision of the Registrar to the High Court - Whether Order XXXIX. rule 1(i) of the Civil Procedure Code 1966, applies.

Civil Practice and Procedure - Appeal - Appeal to the High Court from proceedings before the Registrar on trademark proceedings - Law applicable - Section 116 of the Trade Mark Ordinance and rule 116 of the Trade Mark Rules 1958.

Trade Mark - Oral evidence heard by the Registrar after final submissions by counsel - Whether proper - Section 54 of the Trade Mark Ordinance.

Trade Mark - Proceedings — Counter statement - Contents ofa counterstatement- Section 21(4) of the Trade Mark Ordinance and Form TM7 rule and 48 of the Trade Mark Rules 1958.

Trade Mark - Registration - Evidence as to registrability of a trade mark - Restrictions — Sections 12(1)(e) and 12(2) of the Trade Mark Ordinance.

Court of Appeal Rules - Rules 83(1)(a), 89(1)(e) and 90(1) Effect of non-compliance with.

Civil Practice and Procedure - Appeal Appeal to the Court of Appeal - Appeal lodged out of time - Whether the Court of Appeal may invoke the provision of rule 3 and proceed to entertain an appeal lodged out of time - Rules 3 and 83(1) and (2) of the Court of Appeal Rules 1979.

Civil Practice and Procedure - Res Judicata - Application for certiorari and mandamus dismissed because of availability of alternative remedy by way of temporary injunction - Application for temporary injunction is subsequently made - Whether the subject matter of the application is res judicata.
Civil Practice and Procedure - Inherent jurisdiction of the court - Situations in which the inherent powers of the court may be invoked section 95 of the Civil Procedure Code.