Tanzania Law Reports - 2005

Civil Practice and Procedure — Proving or establishing a case -Parties grante leave to make submissions on points of law only instead of calling witnesses - Court orders counsel to first draw up and file a joint memorandum of facts not disputed — Whether court order was tenable — Order XIV, rule 2, Order XII, rule 3 of the Civil Procedure Code 1966
Civil Practice and Procedure — Proof of matters of both fact and law — Counsel pray for and are granted leave to submit on points of law only instead of calling witnesses — Court orders Counsel to first draw up and file a joint memorandum of facts not disputed followed by written submissions - Joint memorandum not filed but all facts disputed in the written submissions — Whether proceedings were regular

Intellectual Property - Trademark - Infringement of trade trademark - Cumulative effect ofsections 31 and 32(l)(a) ofthe Trade and Service Marks Act 1986.
Intellectual Property - Trademark - Infringement of trademark - Whether trade mark so resembling a registered trademark as likely to deceive or cause confusion — Duty of the trial judge to decide whether the trade Mark complained ofso resembles a registered trademark as to be likely to deceive or cause confusion.
Evidence - Burden of proof— Burden of satisfying the court that there has been Infringement of trademark - The party that alleges has the burden to prove.

Evidence - Facts in issue -Need to prove all facts in issue by evidence - Section 7 of the Evidence Act 1967.
Evidence - Judicial notice — Facts not requiring proof- Section 58 of the Evidence Act 1967.
Evidence - Foreign Law - Proof of foreign law - Foreign law needs to be proved by evidence by an expert in such law - Section 47(1) of the Evidence Act 1967.

Criminal Practice and Procedure — Delay — Delay in criminal trials - Whether  delay in criminal trial may be basis of acquittal of an accused person.
Criminal Practice and Procedure — Discharge of accused person - Rationale for such discharge - Section 225(5) of the Criminal Procedure Act 1985.
Criminal Practice and Procedure — Inherent powers of the court - When such powers may be invoked.

Evidence - Hearsay evidence - Hearsay evidence in Primary Courts - Whether  hearsay evidence is admissible in Primary Courts.
Civil Practice and Procedure -Representation in Primary Courts - Representation by a relative or member of the family - Person representing the other adduces hearsay evidence - Proper course of action to be taken by the court
 

Criminal Practice and Procedure - Security to appear in the Court of Appeal - High Court allows criminal appeal by an accused person - Whether the High Court can order a person whose appeal it has allowed to provide security to appear in the Court of Appeal at the instance of the DPP — Section 358(2) of the [Zanzibar] Criminal Procedure Act Number 7 of 2004.

Evidence - Exhibits - Mishandling of exhibits - Effect thereof Criminal Practice and Procedure - Drugs - Analysis of sample by Government Chemist “as soon as practicable ”— whether one month and a half is a reasonable time ofdelay - Section 61(1) Dangerous Drugs Act Number 6 of 1986.

Civil Practice and Procedure — Lodging of Pleadings — Time Prescribed for lodging - written statement of defense - Application for extension of time to file written statement of defence not made before the expiry of the period prescribed for lodging written statement of defence - Whether the application is competent - Proviso to rule 2 of Order 8 of the Civil Procedure Code.

Civil Practice and Procedure - Jurisdiction of courts to entertain suits - Objection to pecuniary jurisdiction - Stage at which the objection may be taken.
Civil Practice and Procedure - Appeals from decisions of Resident Magistrate Court - Whether appeal lies from ex-parte judgement - Order 19, rule13(2) of the Civil Procedure Code.

Criminal Practice and Procedure - Bail - Cancellation ofBail - Court grants bail and subsequently cancels it without giving reasons for the cancellation - Whether proper.
Natural Justice - Right to be heard - Court granted bail to the appellant but Subsequently cancelled it without hearing the appellant before the cancellation - A breach of natural justice.

Taxation - Whether judge of the High Court can tax the fees of an advocate - Advocates (Remuneration and Taxation Costs) Rules 1991.

Civil Practice and Procedure - Decrees - Signing of decrees Who may sign a decree for purposes of appeal - Order XX, rule 7 and Order XXXIX, rule (l)(d) of the Civil Procedure Code.
Civil Practice and Procedure - Decrees - Signing of decree - Decree is not signed by the judge who made the decision - Effect thereof Statutory interpretation - Meaning of “judge” and "magistrate”

Insurance -Doctrine of utmost good faith (uberrimae fidei) - Disclosure of material facts — Misrepresentation or non-disclosure of material facts - Consequences of failure to disclose material facts.

Terrorism - Conspiracy to commit murder -Accused had no knowledge of plans and activities of conspirators - Whether there is a basis for inferring guilt of accused.
Criminal law - Terrorism - Conspiracy to commit murder - Accused had no knowledge of plans and activities of conspirators - Whether there is a basis for inferring guilt of accused.
Evidence - Circumstantial evidence - Accused was a friend of conspirators — Accused had no knowledge and activities of conspirators - Whether accused guilty of conspiracy to commit murder.

Banking law - Loan facility - Loan Agreement not stating whether interest to be charged is “simple interest” but the bank charges “compound interest” - Whether the charging of compound interest is lawful.
Banking — Loan facility — Compound interest charged on loan facility — Compound interest defined.

Civil Practice and Procedure - Applications - Application for review - Order L, rules 1 and 2 of the Civil Procedure Decree.
Civil Practice and Procedure - Review — Application for review - Jurisdiction for review by a judge who made original decision sought to be reviewed - Order L, rule 5 of the Civil Procedure Decree.

Criminal Practice and Procedure -Assessors - Failure of trial judge to sum up the case to the assessors before obtaining their opinion — Effect of such failure — Section 256(1) Criminal Procedure Decree Chapter 14 of the Laws of Zanzibar.

Civil Practice and Procedure — Exhibits -Handling of Exhibits  Exhibits handled  in a way that makes tampering with them possible — Effect thereof.
Civil Practice and Procedure — Search — Mandatory conditions to observe in conducting a search - Section 114 (1) and (2) of the Criminal Procedure Decree Chapter 14 of the Laws of Zanzibar.
Civil Practice and Procedure - Functus officio - When a judge becomes functus officio.

Islamic Law - Jurisdiction of the Court of Appeal - Question of inheritance among Muslims coming within the jurisdiction of Kadhis' Courts - Whether Court of Appeal of Tanzania has jurisdiction over the matter — Article 96(2) of the Constitution of Zanzibar 1984.
Islamic Law - Jurisdiction — Respondent claims inheritance of a house under Islamic law - Applicant claims right of ownership of the house under Contract of Sale - Whether Kadhi's Court has jurisdiction to determine the question of sale.
Constitutional Law - Revision of decisions originating from and determined in Kadhis ’ Courts - Matter may entail interpretation of a provision of the Constitution of Zanzibar 1984 - Whether the Court of Appeal of Tanzania has jurisdiction to do so - Article 96(2) ofthe Constitution of Zanzibar.

Criminal Practice and Procedure - Appeal - Summary dismissal of appeal - Whether the High Court has power to summarily dismiss an appeal.
Criminal Practice and Procedure — Appeal - Power of the High Court to summarily dismiss an appeal - Whether the court may dismiss an appeal summarily after it has allowed the parties to argue the appeal on merit — Section 328 of the Criminal Procedure Decree.

Civil Practice and Procedure - Leave to appeal to Court of Appeal - Whether there was a legal point worth consideration of the Court of Appeal.

Damages - Fatal accidents - Assessment of damages - Basis for assessment of damages to dependants must be present - Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Chapter 360.

Damages - Award of damages to dependants after fatal accident - Damages awarded to several dependants calculated as a lump sum - Whether court must also apportion the damages among the dependants - Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Chapter 360.

Civil Practice and Procedure - Reference - Application for reference — Amendment of the letter applying for reference - Whether it is necessary to obtain leave of the court before making the amendment - Rule 47(1) and (2) of the Tanzania Court of Appeal Rules 1979.

Civil Practice and Procedure - Stay of execution - Whether leave to appeal is a e condition precedent for grant of stay of execution — Rule 9(2 (b) of the Court of Appeal Rules 1979.

Limitation of Time - Court Vacation - Application filed 3 days beyond the limitation period but during a time when the court is on vacation - Whether the application is time barred.

Primary Court - Jurisdiction - Territorial jurisdiction of Primary Court — Whether the Moshi Urban Primary Court has jurisdiction over land situated in the rural part ofMoshi District - Sections 3(1) and (2) and 19(1) of the Magistrates’ Courts Act 1984 and paragraph 1(a) of the Fourth Schedule thereto.
Primary Court - Assessors - Opinion of Assessors - Whether assessors are required to give to or to have their opinions recorded by the magistrate - Rule 3 of the Magistrates’ Courts’ (Primary Courts)(Judgment of Courts) Rules 1987, G.N. 2 of 1988.

Criminal Practice and Procedure - Identification - Case depending on  Identification of accused - Such identification must be watertight.
Evidence — Grave suspicion against an accused — Whether such suspicion may ground a conviction.

Civil Practice and Procedure -Issues — Framed issues — Issue not framed at the commencement of the hearing but pleaded in the plaint and evidence adduced on it in court - Whether court should not make decision on it.
Natural Justice - Right to be heard - Appellant engaged on secondment to the respondent — Respondent refuses to confirm the appellant’s engagement at the end of the secondment period - Whether the appellant had a right to be heard before the refusal.

Criminal Practice and Procedure - Preliminary hearing — Whether failure to hold a preliminary hearing vitiates proceedings in a case - Section 192 of  the Criminal Procedure Act 1985 and rule 3 of the Accelerated Trial and Disposal of Cases Rules 1988.

Civil Practice and Procedure - Bill of Costs - Judge orders bill of costs to be presented before a Taxing Officer for taxation - Taxing officer refuses to Conduct taxation of the bill of costs - Whether proper.
Civil Practice and Procedure - Bill of Costs — Instruction fees — Whether or not an advocate has been instructed to be determined during taxation.

Criminal Practice and Procedure — Sentencing — Sentence for armed robbery — Appellant condemned to a sentence higher than the law provided when the offence was committed - Sentence imposed is unlawful.
Statute - Retrospective Effect — Penal statute amended to enhance sentence a prescribed for armed robbery - Whether the enhanced sentence may apply to offence committed before the amendment - Section 5 of the Minimum Sentences Act 1972 as amended, section 49 of the Interpretation of Laws and General Clauses Act 1972, and article 13(6)(a) of the Constitution.

Police Officers - Termination of Service - Termination of Service in the Public interest - Services of Senior Police Officers abruptly terminated by the President by retirement in the Public interest - Whether the termination was lawful - Article 36(2) of the Constitution of the United Republic of Tanzania 1977 (1995 Edition) and section 3(2) of the Police Force and Prisons Services Commission Act 1990.
President - Powers of the President - Constitutional Powers of the President to remove a person from office - Whether the President may use those Powers  to terminate service of police officers —Article 36(2) of the Constitution (1995 Edition), and section 3(3) of the Police Force and Prisons Services Commission Act 1990.
Damages - Damages for unlawful termination of employment — Terminated officers claiming to be paid statutory salaries up to the date of compulsory retirement - Whether the claim is awardable.

Limitation of time - Computation of time for appeals to the High Court in matters originating in Primary Courts - Running of time - Whether time begins to run from the date of the decision or from the date of getting a certified copy of the decision.

Limitation of time-Limitation of time for appeals to the High Court in matters originating in Primary Couirts-Law applicable-Whether section 25(I) and (3) of the magistrates' Courts Act 1984 or sections 2. 19(2), 43(f) and 46 of the Law of Limitation Act 1971 are applicable.

Civil Practice and Procedure - Appeals - Appeals to the High Court in matters originating in Primary Courts - Computation of time - Law applicable.

Criminal Practice and Procedure - Sentence - Sentence of twenty years imprisonment where accused pleaded guilty to the offence of manslaughter, was outrageously provoked by misconduct of his infidel spouse - Whether sentence imposed was excessive.
Criminal Practice and Procedure - Sentencing - Whether appellate court may alter a sentence imposed by trial court.
 

Criminal Practice and Procedure - Sentence - Sentence of thirty years imprisonment - where the accused pleaded guilty to the offence of
manslaughter - Whether the sentence imposed was excessive.
Criminal Practice and Procedure - Sentenceing - Whether the Appellate Court may alter a sentence imposed by the trial court.

Criminal Law — Murder - Plea of Provocation - When a plea of provocation may be sustained - Section 202 of the Penal Code.
Criminal Law — Provocation - Appellant enraged by husband and kills co-wife - Whether the defence of provocation is available to the appellant.

Criminal Practice and Procedure - Appeals - Appeal by the Director of Public Prosecutions — Appeal to the High Court filed out of the prescribed limitation period—Discretion of the High Court to admit such appeal- Whether the High Court can invoke its discretion suo motu - Section 379(b)(Ui) of the Criminal Procedure Act 1985.

Local Government - Establishment of local government authorities - Whether establishment of district council and appointment of district executive director may be clandestine or merely implied - Law and procedure of establishing district council and appointment of executive director - Sections 5, 6, 7, 8 and 9 of the Local Government (District Authorities) Act 1982, and section 5 of the Public Service Act 2002.
Local Government — Suits against local government authorities - Whether a district council or its executive director may be sued upon transactions that occurred before the district council came into existence.

Courts — Constitution of a court- Case filed in a Court of Resident Magistrate but assigned to and presided over by a district magistrate - Whether the court is duly constituted.
Civil Practice and Procedure - Reference - Reference to the High Court- Matter referred to the High Court by resident magistrate without any opinion by the magistrate on any doubtful question of law - Whether the matter is correctly referred to the High Court — Section 77 and Order XLI of the Civil Procedure Code 1966.

Criminal Law - Murder-Defence of provocation -Killing occurring in a quarrel following rude and abusive utterances by the deceased - Whether the accused may be convicted of murder — Section 202 of the Penal Code Chapter 16.
Criminal Practice and Procedure - Conviction - Conviction for Murder - Appellant killed the deceased in reaction to rude utterances by the deceased - Whether the court may convict of murder without requiring the assessors to make a finding whether the words uttered were provocative.

Labour law — Suit instituted by a trade union branch of TUICO which is not a legal entity - Whether union branch has locus standi - Whether union branch can represent dead, retrenched or retired members.
Contract law - Privity of Contract - Action is based on trust deed - Whether plaintiff can sue on trust deed to which he is not a party - Whether trust rules applicable.
Arbitration - Parties agree to submit matter to arbitration —Whether court bound to refer matter to arbitration in case of dispute -Whether submission of a suit to arbitration can be taken and decided as a preliminary objection.
Civil Practice and Procedure - Written submissions - Annexures attached to written submissions - Whether documents constituting evidence of facts may be attached to written submissions.

Constitutional Law - Basic Rights and Duties - Petition for enforcement of basic right — Petition against the Government — Whether Notice to Government is necessary before instituting Petition - Basic Rights and Duties Enforcement Act 1994 and section 6(2) of the Government Proceedings Act 1967.

Criminal Law - Robbery with violence - Evidence of use or threat of actual use of violence to steal or retain stolen property is essential - Section 285 of  the Penal Code.
Criminal Practice and Procedure - Conviction — Substitution of conviction - Charge of robbery with violence but evidence supports assault occasioning bodily harm and no theft - Power of court to substitute conviction for lesser offence.

Statute - Retrospective Effect - Statute is amended to take away right of appeal - Whether the amendment has effect on an appeal that was already pending - Section 5(2)(d) of the Appellate Jurisdiction Act 1979, as amended by Act Number 25 of 2002.
Appeal — Court of Appeal Rules - Notice of Appeal signed for and on behalf of The Registrar.
Whether the notice is valid - Rules 15 and 76 of the Tanzania Court of Appeal Rules 1979.

Banking - Banking facility - Loan advanced to the first defendant secured by a guarantee and a mortgage, both executed by the second defendant - Second defendant denies the extent of the loan he guaranteed and executed a mortgage for — Whether the second defendant is liable.
Banking - Banking facility - Second defendant is shareholder and Managing Director of first defendant who is given a loan by the Plaintiff- The second defendant, also an employee of the Plaintiff blames the Plaintiff or acting negligently and unprofessionally in disbursing loan to the first defendant - Whether the blames by the second defendant are sustainable in law.

Civil Practice and Procedure - Appeals - Appeals to the Court of Appeal — Lodging the Record and Memorandum of Appeal- Record and Memorandum of Appeal not endorsed by the Registrar to signify their lodgment - Effect thereof- Rules 15, 83(1) and 86(3) of the Court of Appeal Rules 1979.