Tanzania Law Reports - 2004

Probate and Administration -Intestate succession - Appointment of Administrator or Administratrix - Necessary considerations for appointment.

Banking — Securities against advances - Value ofproperty offered as security being far higher than the facility given — Whether such security is acceptable.

Civil Practice and Procedure - Pleadings - Final submissions not confined to pleadings — Whether proper.

Civil Practice and Procedure — Pleadings - Claim for compensation not pleaded at the trial- Whether it is competent to raise it on appeal- Order VII, rule p 8 of the Civil Procedure Decree Chapter 8 (Zanzibar).

Civil Practice and Procedure - Judgment - Contents of a judgment — Order XLVI, rule 31 of Civil Procedure Decree (Zanzibar).

Land Law - Land tenure - All natural land declared public land vested in the President - Effect thereof- Land Tenure Act 1992.

Land law - Right of occupancy - Power of minister to grant or terminate occupancy - Section 3(4) of the - Land Tenure Act 1992.

Civil Practice and Procedure - Appeals -Appealfrom the LART Tribunal to the Court of Appeal - Enabling and applicable legal provisions.

Statute - Interpretation ofstatutes - Meaning of “Registrar" - Whether the Registrar of the LART Tribunal is also “Registrar" under the Court of Appeal Rules - Rule 76 of the Tanzania Court ofAppeal Rules 1979.

Constitutional Law - Right of appeal as a constitutional right - Appeal from the LART Tribunal to the Court ofAppeal - Relevant laws not providing for the procedure applicable in such appeals - Whether appellant may for a that reason be denied the right to appeal - Article 13(6)(a) of the Constitution, section 20(1) of the Loans and Advances Realization Trust Act 1991, section 4(1) of the Appellate Jurisdiction Act 1979, and rules 76(1) and 3(2)(a) of the Tanzania Court of Appeal Rules 1979.

Civil Practice and Procedure - Appeals - Notice of Appeal - Notice of appeal and signature of the Registrar -Notice of appeal not signed by the Registrar - Validity and effect of such notice - Rule 76 of the Court of Appeal Rules 1979.

Appeals — Powers of appellate Court — Power to re-evaluate evidence taken by Trial Court and to make factual findings there from — Whether appellate Court can make factual findings based on a document not adduced at the trial.

Evidence — Public Documents - Report of Principal Secretary — Whether the report is a public document of which judicial notice can be taken — Sections 3(1), 59(1) and 83(a)(iii) of the Evidence Act 1967.

Civil Practice and Procedure - Jurisdiction - High Court - Jurisdiction of the High Court when a matter is in the Court of Appeal - Application of the provisions of the Civil Procedure Code.

Contract—Loan agreement - Default to pay consecutive installments — Whether  the failure constitutes breach of contract. Contract — Loan agreement — Power of sale of mortgaged property securing the loan - When the power ofsale is exercisable.

Torts - Defamation - Advertisement of sale of mortgaged property over the radio — Whether the advertisement is defamatory of the defaulting borrower.

Civil Practice and Procedure — Arbitration -Application for stay of proceedings pending reference to arbitration - Application to be made before filing a written statement ofdefence or taking any other step in the proceedings.
Civil Practice and Procedure — Applications -Application for stay of proceedings pending reference to arbitration - Application for stay is followed by an oral application by the other party - Whether Court may entertain the
oral application.

Natural Justice - Application for stay of proceedings is followed by an oral application by the respondent — Appellant constrained from effectively taking part in the oral application by respondent — Effect of participation by appellant in the oral application made by respondent.

Criminal Practice and Procedure — Appeal - Summary dismissal of appeal by the High Court - Whether High Court may summarily dismiss an appeal - Section 364 of the Criminal Procedure Act.

Criminal Practice and Procedure — Appeal - Summary Dismissal of appeal by the Court — Whether the Court may summarily dismiss the appeal without giving reasons.

Criminal Practice and Procedure - Appeal - Appeal dismissed summarily by the High Court- Whether Court of Appeal may step into the shoes of the High Court and hear and determine that appeal - Section 4 of the Appellate Jurisdiction Act 1979.

Civil Practice and Procedure - Case instituted by numerous plaintiffs — Whether only a few ofthem may testify on behalf of the others

Labour law - Payment of subsistence allowance — Appellants paid transport costs to places of domicile — Whether respondent also obliged to pay subsistence allowance to appellants. 

Civil Practice and Procedure — Court process - Party pursuing two different avenues in different Courts at the same time — An abuse of the Court process.

Civil Practice and Procedure - Applications - Application to Court of Appeal - Notice of motion citing a wrong or non-existent provision of law - Whether valid. Court of Appeal -

Court of Appeal Rules - Application for revision - Form prescribed for application - Notice of Motion not substantially conforming to prescribed form -Whether Court can properly be moved - Rule 45(2) of the Court of Appeal Rules 1979.

Banking - Securities for bank advances - Mortgage over house - Whether mortgage is a simple mortgage - Preconditions for realization of a simple mortgage - Section 58(3) of the Transfer of Property Decree Chapter 150 of the Laws of Zanzibar.
Mortgages — Mortgage over a house - Whether the mortgage is a simple mortgage - Conditionsfor realization of a simple mortgage.
Land Law - Sale ofmortgagedproperty - Sale by auction.- No evidence of foul play - Whether price obtained is the market price at the auction.

Labour law - Terminal benefits - Assessment of terminal benefits - Assessment done by Labour Officer but disputed by the appellants — Whether assessment by Labour Office was reliable.
Labour law — Respondent had given money for purchase of motor cycle as means for transport for the first appellant while working for respondent - Whether the motor cycle belonged to the respondent on termination of the contract of employment.
Civil Practice and Procedure - Judgment - Judgment too scanty and contained in only two sentences - Whether meeting the requirements of a judgment - Order XLVI, rule 31 of the Civil Procedure Decree Chapter 8 of the Laws of Zanzibar.

Probate and Administration - Sale of the estate under administration - Court orders sale by auction at a given price - Whether the sale may be conducted at variance with the orders of the Court.
Probate and Administration - Sale of the estate under administration - Requirement of Notice before effecting the order for sale - Rules governing execution proceedings in Primary Courts - The Magistrates’ Courts (Civil Procedure in Primary Courts) Rules 1964.

Civil Practice and Procedure - Objection proceedings — Duty of the Court in objection proceedings - Order XLVII, rule 1(i) and Order XXIV, rule 53 of the Civil Procedure Decree Chapter 8 and section 5(1)(c) of the Appellate Jurisdiction Act 1979.

Criminal Practice and Procedure — Appeals - Second appeal - Duty of an appellate Court on a second appeal - Section 276(1) of the Criminal Procedure Decree of Zanzibar.

Evidence - Misdirection or non-direction on the evidence - Duty of appellate Court when there have been mis-directions or non-directions by the Court(s) below.

Criminal Practice and Procedure - Judgment - What a judgment should contain - Section 276(1) ofthe Criminal Procedure Decree Zanzibar.

Administrative Law - Delegation of Powers — Power to issue clove export permit - Power vested in a Sheha - Whether that power may be exercised by a shehia councillor - Regional Administration Authority Act Number 1 of 1998, Interpretation of Laws and General Provisions Act 1984, and the Cloves Act 1985.

Company Law — Winding Up - Company’s inability to pay its debts — Repeated demands made in vain to the respondent to pay the appellant TZS. 240.5 million - Whether the respondent was unable to pay its debts - Section 167(e) of the Companies Ordinance Chapter 212.

Company Law - Winding Up - Petition for winding up - Appellant filed a verifying affidavit together with the petition on 29 March 2000 and the respondent filed an answer to the petition on 30 May 2000 - Whether the respondent legally filed a proper reply to the petition - Rule 35(1) of the Companies (Winding-up) Rules 1929.

Company Law - Winding Up - Petition for winding up - Locus standi of the petitioner - Petitioner not being a shareholder of the company — Whether may have locus standi to petition.

Civil Practice and Procedure -Bias — Test to be applied where there is allegation of bias.

Civil Practice and Procedure - Disqualification of a Judge from hearing a case —Grounds for invoking such a step.

Civil Practice and Procedure - Injunction — Distinction between an injunction "ad interim ” and a temporary injunction..

Adoption - Adoption order - Effect of the adoption order on the relationship between infant and parent.

Adoption - Purpose of adoption - Purpose of adoption must be to promote the welfare of the child better than the existing arrangement.

Criminal Practice and Procedure - Cautioned statement - Admissibility in evidence - May be admitted in evidence when voluntarily made.

Criminal Practice and Procedure — Summing up to assessors - Trial judge disclosing his views to the assessors — Whether the assessors are thereby influenced.

Criminal Law - Common intention - Hiring or procuring another person to commit an offence - Whether a common intention is thereby formed - Common interest and counseling or procuring distinguished - Sections 22 and 23 of the Penal Code.

Labour Law - Contract of Employment - Termination of contract of employment - Termination of employment contract entered into for specified period Whether Employer may terminate it before expiry ofthe specified period.

Labour Law - Contract of Employment - Termination of contract of employment - Whether employer may decide to terminate it without giving reasons - Article 13(6) of the Constitution.

Basic Rights - Right to Work - Whether termination of employment by employer is violative ofthe employee's constitutional right to work — Article 22(1) of the Constitution.

Natural justice - Right to be heard - Plaintiff expelled from her political party without a hearing or notice - Breach of natural justice.
Natural justice — Likelihood of bias - Madaraka branch of the CUF Party interested in depriving plaintiff of her party membership - CUF Headquarters had made up its mind as to the guilt of the plaintiff-Breach of the rule against bias.

Constitutional law - Right to attend Parliamentary sessions - Party directs its members who are members of Parliament not to attend Parliamentary sessions - Legality of such directive - Section 71(1)(c) of the Constitution of the United Republic of Tanzania.

Criminal Practice and Procedure - Review - Exercise of Review Powers by the Court of Appeal — Circumstances under which the powers may be invoked.

Civil Practice and Procedure — Appeals — Leave to appeal to the Court of Appeal— Application for leave to appeal - Formal application for leave to appeal made to the High Court- Whether it is necessary to attach copy of judgment and decree of the High Court against which it is intended to appeal - Rule 43(a) of the Court of Appeal Rules 1979.

Criminal Practice and Procedure - Prosecutions - Private prosecutions - Principles governing private prosecutions.

Courts - Jurisdiction - Case instituted in a Court of Resident Magistrate but heard by a District Magistrate - Whether the Court had jurisdiction - Section 6(l)(c) of the Magistrates’ Courts Act 1984.

Civil Practice and Procedure - Pleadings - Principles of pleadings.
Civil Practice and Procedure - Pleadings - Pleaded case was on wrongful retirement while appellant was under interdiction  - Appellant gave evidence without amending pleadings and - issues drawn by Trial Court - Whether departure from the pleaded case and drawn issues was proper - Whether
departure is curable by Article 107(A)(2) ofthe Constitution of the United Republic of Tanzania, 1977.

Tort - Malicious prosecution - Tort based on a distinct cause of action which arose on a different date and place - Whether tort can be joined with a case ofpremature retirement.

Tort - Malicious prosecution - Meaning of Proof of Whether necessary to identify the primary tortfeasor for the purpose of proving malice — Section 3 of the Government Proceedings Act 1967.

Tort - Malicious prosecution - Meaning of reasonable and probable cause.

Criminal Procedure and Practice -Appeal - Power of the Court of Appeal on a second appeal - Whether the Court of Appeal may decide a matter not raised in and decided by the High Court on first appeal — Section 4(2) of ® the Appellate Jurisdiction Act 1979.

Criminal Practice and Procedure - Rape - Appropriate sentence for the offence of rape -Age of the victim of rape is important in determining appropriate sentence — Section 131 of the Penal Code.

Civil Practice and Procedure - Review - Whether a trial judge can review and quash his own judgment and proceedings - Order XLII, rule 1 of the Civil Procedure Code 1966 .

Civil Practice and Procedure - Amendment of pleadings - Whether amendment can be allowed after delivery of judgment ~ Order VI, rule 17 of the Civil Procedure Code 1966.

Limitation - Limitation of Time — Arbitration — Whether there is a period of limitation for a petition to set aside arbitration award — Section 21 of the Law of Limitation Act 1971, or Item 21 of Part III of the First A Schedule there to.

Arbitration — Awards - Petition to set aside an award - Whether such petition is a suit or an application - Section 15 of the Arbitration Ordinance Chapter 15, and rules 5 and 6 of the Arbitration Rules 1957.

Civil Practice and Procedure - Appeals - Matter not canvassed in the trial High Court - Whether competent to raise the matter on appeal.

Admiralty — Matters constituting admiralty — Contract for rendering services to a ship - Whether an admiralty matter.

Admiralty - Jurisdiction - Matters presented before the District Court concerned contract to render services to a ship - Whether District Court has jurisdiction to try the case - East African Merchant Shipping (Consequential Provisions) Act 1966, second Schedule.

Admiralty matters — Pecuniary jurisdiction — Services rendered amounting to USD 273 355.43 - Whether District Court had jurisdiction to hear the case - Section 6 ofthe Civil Procedure Code Act 1966.

Civil Practice and Procedure - Ex parte order — Interim ex parte Order - Pleadings not showing sufficient grounds for dispensing with the law - Whether Order issued in abuse of process of the law - Order XXXVII, rule 3 of the Civil Procedure Code Act 1966.
Civil Practice and Procedure — Interim ex parte order — Order issued on 12 July 2002 but served on the Applicant on 21 August 2002 - Whether Order is ® compliant with the law — Order XXXVII, rule 3 of the Civil Procedure Code Act 1966.

Civil Practice and Procedure - Revisional proceedings - Whether High Court can revise an interlocutory ex-parte order granted by the District Court - Section 44(l)(a) of the Magistrates' Courts Act 1984.

Family law - Divorce - Spouse being no longer in love - Whether a sufficient ground for the Court to grant divorce - Section 107(1) and (2) of the Law of Marriage Act 1971.
Family law - Divorce - Grant of divorce - Whether the Court may summarily grant divorce.
Family Law - Matrimonial causes - Party establishes that a matrimonial offence  has been committed — Whether that fact entitles the party to an automatic right to a divorce decree. Civil Practice and Procedure - Matrimonial causes — Parties not at issue on their marriage being broken down irreparably - Whether the Court may on that basis summarily pronounce judgment - Rule 29(2) of the Law of Marriage (Matrimonial Proceedings) Rules 1971, Order XV, rule 1 of the Civil Procedure Code 1966 and section 107 of the Law of Marriage Act 1971.

Civil Practice and Procedure - Courts - Hierarchy of the Courts in Mainland Tanzania and Tanzania Zanzibar - [Mainland] Magistrates ’ Courts Act 1984 and [Zanzibar] Magistrates’ Courts Act 1985.
Civil Practice and Procedure - Appeals - Appeals from the High Court to the Court of Appeal - Certificate on a point of law - When a certificate on a point of law is necessary - Rule 89(2) of the Court of Appeal Rules 1979, section 5(2)(c) of the Appellate Jurisdiction Act 1979 and the Constitution A (Consequential, Transitional and Temporary Provisions) Act Number 16 of 1984.
Court of Appeal - Appeals - Appeals from the High Court to the Court of Appeal
- Certificate on a point of law - Purpose of requiring a certificate on a point of law - Conflicting decisions of the Court - Court of Appeal Rules 1979 _ The People's Courts Decree 1969.

Criminal Practice and Procedure - Charges — Duplicity — Person charged with "Being in possession of property suspected of having been unlawfully acquired” in one count and “Retaining stolen property ” in another count, both counts referring to the same property — Whether proper - Section 312(1)(b) and 311(4) of the Penal Code.

Criminal Practice and Procedure — Order of forfeiture — Whether court can order distribution of forfeited property to beneficiaries.

Courts - Jurisdiction - Jurisdiction of Courts in suits by the Government - Whether a suit by the Government may be instituted in a Court other than the High Court - Section 7A of the Government Proceedings Act 1967 and section 13 of the Civil Procedure Code 1966.

Government Proceedings - Suits by the Government - Government files a suit for recovery of TZS. 8 million in the High Court — Whether the suit is properly before the High Court- Section 7A ofthe Government Proceedings Act 1967, section 13 ofthe Civil Procedure Code 1966.

Contract - Validity and enforceability - Agreement entered into in a foreign jurisdiction — Whether the agreement is valid and enforceable in Zanzibar.

Family Law - Marriage Settlement agreement - Marriage settlement agreement executed in Denmark and not registered in Zanzibar but giving a spouse an interest in the other spouse's landed properties in Zanzibar - Whether the marriage settlement is valid and enforceable in Zanzibar.

_ Conflict of Laws — Right to property - Right to own land in Zanzibar - Whether a Tanzanian who is not a Zanzibari may own land in Zanzibar — Section 24 of the Constitution of the United Republic of Tanzania and section 8(1) of the [Zanzibar] Land Tenure Act 1992 Number 12 of 1992.

In the premises, I do hereby strike out with costs Commercial Case Number 287 of 2001. This Court has no jurisdiction to entertain this suit. It is accordingly ordered. 

Constitutional law – Elections – Election petitions – Security for costs – Parliamentary lawmaking powers – Equality before the law – Right of access to courts – Constitutionality of mandatory deposit as security for costs – Judicial discretion – Discrimination against indigent litigants.

Criminal Practice and Procedure - Charges - Charge alleging an offence against
a statutory provision that does not exist — Proceedings null and void.
Immigration - Charges - Person charged with and convicted ofan immigration
offence that does not exist under the law - Proceedings null and void.

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.