LAW

MATERIAL
-A Quick Handout-

June 2022 (Final Revision Oct.2023)

 DISCLAIMER
This work is issued for general information purposes and does not in any way
constitute a legal opinion of the authors, also whenever there is any advice(s)
by the author in this work shall not be constituted neither considered as binding
but must be opted in a personal wish. The authors shall not be liable for any
injury and/or loss arising from relying from this work.

LAW MATERIAL- A Quick Handout: By Providence M. Simbila, Esq & Izack A.

Mollel, Esq Page 1
 PROVIDENCE M. SIMBILA, Esq

Phone: 0688 531 666

Email: providencesimbila2020@[Link]

&

IZACK A. MOLLEL, Esq

Phone: 0765 606 234

Email: izackmollel86@[Link]

-I will never LEAVE you nor FORSAKE you-

- Deuteronomy 31:6 -

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Mollel, Esq Page 2
 TABLE OF CONTENTS
DISCLAIMER ............................................................................................................................ 1

LAND TITTLE ............................................................................................................................ 10

PLACE OF SUING .................................................................................................................. 11

BILL OF COSTS Vs. EXECUTION .......................................................................................... 13

Time Limit for an application for Taxation .................................................................. 13

Complexity and time taken to research the matter whether to be considered

in awarding bill of costs.................................................................................................. 14

Failure to file Bill of cost in time ..................................................................................... 15

EFD in Bill of Cost .............................................................................................................. 16

Aggrieved by decision of Taxing Master.................................................................... 17

Whether a copy of decree is necessary in application of Bill of Costs ............... 18

EXECUTION (SYAT OF EXECUTION) AND PENDING APPEAL OF THE SAME MATTER . 19

Stay of Execution and reasons for grant of stay ....................................................... 20

The manner of giving security in stay of execution ................................................. 20

The rationale behind seeking stay of execution ...................................................... 21

Whether hearing of bill of cost should stay hearing of appeal............................. 22

Format of Bill of Cost ....................................................................................................... 23

CONTRACTS .......................................................................................................................... 23

Implied contracts ............................................................................................................ 23

Sanctity to contract ........................................................................................................ 24

Privity of contract ............................................................................................................ 24

Formation of a contract ................................................................................................ 24

Breach of contract.......................................................................................................... 24

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MODES OF EXECUTION ....................................................................................................... 26

By arrest ............................................................................................................................. 26

Execution of decree against the government ......................................................... 26

WARD TRIBUNAL ................................................................................................................... 26

Composition of Ward Tribunal ...................................................................................... 26

Examination and cross examination of witness. ....................................................... 30

THEFT ....................................................................................................................................... 30

How to prove theft .......................................................................................................... 30

Banker-Customer Theft ................................................................................................... 33

Theft vs. admission of fact ............................................................................................. 34

ADVERSE POSSESSION & INVITEE/LICENSEE .................................................................... 35

DETERMINATION OF EVIDENCE FROM BOTH THE PARTIES ............................................ 36

NON JOINDER OF PARTIES, NECESSARY PARTY.............................................................. 37

Ingredients of Necessary Party ..................................................................................... 38

Attorney General as Necessary Party ......................................................................... 40

Necessary party, Buyer vs. Seller .................................................................................. 41

EXTENSION OF TIME ............................................................................................................. 41

Appeal out of time.......................................................................................................... 42

WRITING ERRORS/ MISTAKES (name, year etc.) ........................................................... 42

APPELLATE COURT CANNOT CONSIDER OR DEAL WITH THE ISSUE THAT WERE NOT
RAISED AT THE LOWER COURT ........................................................................................... 43

CAVEAT EMPTOR .................................................................................................................. 43

CRO Vs. URBANIZATION ( Whether ownership will be extinguished) ...................... 43

PROVING HAND WRITING OF A PERSON ......................................................................... 44

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PRELIMINARY OBJECTION .................................................................................................. 44

Jurisdiction ........................................................................................................................ 45

Improper rising of preliminary objection..................................................................... 46

Omission to cite a provision in a notice of P.O ......................................................... 46

Priority in determination of preliminary objection .................................................... 46

LOCUS STANDI- Board Resolution ................................................................................. 47

Board resolution and Preliminary objection. ............................................................. 48

No P.O on existence or non-existence of Resolution of The Board Of Directors48

FAILURE TO FILE COUNTER AFFIDAVIT............................................................................... 50

ADMINISTATOR ESTATE CAN REPRESENT DECEASE IN THE COURT ONLY WITH

APPLICATION. ( In court of appeal) ................................................................................ 51

ADMINISTRATOR OF ESTATE ............................................................................................... 52

Powers of administrator of estate rise upon appointment..................................... 52

Limitation of time for the application of letters of administration ........................ 52

RIGHT TO BE HEARD/ FREEDOM OF RELIGION AND ITS GUIDING PRINCIPLE ............ 52

OMISSION TO FRAME ISSUES.............................................................................................. 54

Parties to be bound and guided by issues raised .................................................... 54

REQUIRENMENT OF CAVEAT TO BE ATTESTED AND NOT AFFIRMED ............................ 54

OVERRIDING OBJECTIVE PRINCIPLE / OXYGEN PRINCIPLE.......................................... 55

MEANING OF PUBLIC SERVANT ......................................................................................... 55

CORPORATE .......................................................................................................................... 55

Pleadings of companies have to be verified by the secretary or director of the

company........................................................................................................................... 56

Lifting corporate veil ....................................................................................................... 56

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CORPORATIVE SOCIETIES ................................................................................................... 57

Jurisdiction and settlement of dispute ........................................................................ 57

LIMITATION OF TIME............................................................................................................. 58

Remedy for the Time barred case is to dismiss it. ..................................................... 58

Delaying of an application before the court of law due to the lack of legal
assistance is not acceptable........................................................................................ 58

BREACH OF CONTRACT-compensation as remedies .................................................. 59

RES JUDICATA ....................................................................................................................... 59

PLEADINGS ............................................................................................................................ 61

Function of pleading- is to give notice of the case to the party and that, the
opponent will not be taken by surprise ...................................................................... 61

Verification in the Pleadings ......................................................................................... 61

AFFIDAVIT .............................................................................................................................. 67

Defective affidavit .......................................................................................................... 68

IDENTIFICATION OF ACCUSED .......................................................................................... 69

Identification of accused by the voice and giving evidence by unsworn

statement .......................................................................................................................... 69

ABANDONMENT ................................................................................................................... 69

Procedure to declare land as abandonment land ................................................ 69

RECENT POSSESSION ........................................................................................................... 70

Recent possession of property can be applied not only in an offence related

to theft but cannot be applied in murder when the property stolen owned by
deceased. ........................................................................................................................ 70

LAST PERSON SEEN WITH DECEASED ................................................................................. 70

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ORAL CONFESSION ............................................................................................................. 71

Oral confession made by a suspect before witnesses may be sufficient to find

conviction ......................................................................................................................... 71

CHARGE................................................................................................................................. 71

Charge which did not dis-close any offence in particulars of offence is wrong
and cannot curable ....................................................................................................... 72

SPECIFIC DAMAGES ............................................................................................................ 72

Special damages must be specifically pleaded and proved by evidence. .... 72

GENERAL DAMAGES ........................................................................................................... 73

General damages awarded under discretion of the court. ................................. 73

CITING ENABLING PROVISION IN APPLLICATIONS ........................................................ 74

Failure to cite enabling provision is NOT FATAL......................................................... 74

Failure to cite enabling provision is FATAL. Case to be strucked out .................. 75

CONFLICT OF DECISION OR PRECEDENTS ....................................................................... 76

RES-SUB JUDICE .................................................................................................................... 76

EXPARTE ................................................................................................................................. 76

Appeal is not an alternative for an application to set aside exparte

order/judgment ............................................................................................................... 76

Procedure to set aside an ex parte judgment ......................................................... 78

THE PROCEDURE FOR CRIMINAL APPEALS FROM SUBORDINATE COURTS TO THE

HIGH COURT OF TANZANIA ............................................................................................... 78

STEPS TO TAKE ....................................................................................................................... 79

APPEAL COURSE UNDER COURT OF APPEAL RULES ....................................................... 80

NEW OR ADDITIONAL ISSUE RAISED ................................................................................. 81

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RESOLUTION OF THE BOARD OF DIRECTORS ................................................................... 82

A VISIT OF THE LOCUS IN QUO .......................................................................................... 88

TENDERING EXHIBITS............................................................................................................ 88

Tendering original evidence and capacity to tender ............................................ 88

ESTOPPEL................................................................................................................................ 89

STATUTORY RAPE-PROOF OF AGE IS MANDATORY ....................................................... 89

ADVERSE INFERENCE ........................................................................................................... 91

BURDEN OF PROOF IN CIVIL CASES.................................................................................. 92

CONVICTION IN ABSENTIA ................................................................................................ 92

LEAVE TO CAT / 1ST BITE TO THE HC .................................................................................. 93

PROBATE CASES ................................................................................................................... 94

Divorce does not ipso facto revoke a will ................................................................. 99

Lodging a caveat ........................................................................................................... 99

FAIR AND COMPETITION TRIBUNAL vs. HIGH COURT .................................................. 101

DIVORCE, SEPARATION, MAINTENANCE OF THE CHILDREN, DIVISION OF

MATRIMONIAL ASSETS AND CUSTODY OF CHILDREN ................................................. 103

ADULTERY UNDER PRESUMPTION OF MARRRIAGE........................................................ 104

TEMPOLARY INJUNCTION ................................................................................................. 105

CIVIL PRISONER .................................................................................................................. 105

POWER OF ATTORNEY ....................................................................................................... 107

Whether a person can represent another person without Power of Attorney or

clear authorization ........................................................................................................ 107

Representation in law suit vs Administration of Estates ......................................... 109

CAUSE OF ACTION ............................................................................................................ 111

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 Remedy of plaint which did not disclose cause of action .................................. 111

Amended plaint/WSD .................................................................................................. 112

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LAND TITTLE

Seller must have tittle to pass, either under GRO, CRO or DRO. If seller doesn‟t
have tittle, sale can‟t be carried out. Case of Farah Mohamed Vs. Fatuma
Aballah [1992] TLR 205.

(i) “He who doesn‟t have legal tittle to land cannot pass good tittle
over the same to another”
(ii) “Documents purporting to transfer ownership of right of occupancy
must be registered otherwise those documents are invalid and
ineffectual”
(iii) “Transfer of right of occupancy without consent of the President is
ineffective and unenforceable”

In Tom Morio Vs Athumani Hassan and 3 Others, Civil Appeal No. 179 of 2019
(unreported) CAT at Arusha “…it is a settled legal principle that no one can give
title which he does not have to another person (Nemo dat quod non habet
rule).” At page 24.

In Mwinyihatibu Juma Hatibu v. Ridhiwani Juma Hatibu, Civil Appeal No.70 of

2020(unreported) CAT at Tanga, the court was of the affirmed view in settled
position of law that; “unless established to the contrary, when the question as to
who is the rightful owner of the land, the certificate of tittle is a vital and
conclusive evidence to prove ownership” page 13-14

In the case of Melchiades John Mwenda v. Gizelle Mbaga and 2 Others, Civil
Appeal No.57 of 2018, CAT @DSM Reported in Media Neutral Citation [2020] TZCA
1856, page 31; the court in line with Section 38 of The Land Registration Act
considered appropriate for a person who lost the original title Deed to make a
follow up from police and obtaining loss report and following procedure for the
re-issuance.

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PLACE OF SUING

Section 18 of the CPC provides; “Subject to the limitations aforesaid, every suit
shall be instituted in a court within the local limits of whose jurisdiction:-

i. the defendant, or each of the defendants where there are more than
one, at the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for gain;

ii. any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the
leave of the court is given or the defendants who do not reside or carryon
business, or personally work for gain, as aforesaid, acquiesce in such
institution; or
iii. The cause of action, wholly or part, arises

Section 18 of the CPC must be read together with Section 17 of the same CPC,
where Section 17 of the CPC, provides as follows:- “Where a suit is for
compensation for wrong done to the person or to movable property, if the
wrong was done within the local limits of the jurisdiction of one court and the
defendant resides, or carries on business, or personally works for gain, within the
local limits of the jurisdiction of another court, the suit may be instituted at the
option of the plaintiff in either of the said courts.”

The Court of Appeal of Tanzania in the case of Abdallah Ally Selemani t/a
Ottawa Enterprises (1987) Vs. Tabata Petrol Station Co. Ltd, Civil Appeal No.89 of
2017,(unreported), Kitusi J.A at page.18 settled already this matter that: “We
think that only suits for immovable property were meant to be filed within the

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local limits in which such properties are situated. Any other suits as provided
under Section 18 of The Civil Procedure Code, are to be filed where the cause
of action arose or where the defendant resides or works for gain.”

In the case of Kabyesiza Mwebesa v. Khalif Mashid and Another, Civil Appeal
No.26 of 2020 HC, (unreported), the Court at page.6 upon settling the matter of
territorial jurisdiction provided that: “On the issue as to whether or not the trial
court had jurisdiction, what is to be looked at is the place where cause of action
arose to determine whether or not it arose within the geographical area in
which the trial court is situated”
In the case of Mantrac (T) Limited Vs. Summer Communication Company
Limited, Civil Appeal No.279 of 2018 HC (unreported) the court viewed that:
“In the instant case, the appellant‟s case is that the cause of action arose in
Njombe region and the contract forming part of the suit was executed at
Mbeya, thus, impliedly, the suit ought to have been instituted in Njombe or
Mbeya not in Dar es Salaam”

Further; section 18 of CPC is a replica and exact copy of Rule 1(b) of The Forth
Schedule to The Magistrate‟s Court Act Cap. 11 R.E 2019 (MCA). A person can
ask the court to borrow wisdom from the said Rule 1 (b) of The Forth Schedule to
the MCA. This is because The MCA, provides for similar guideline as in which
primary Court to institute the case within the District. The Section provides that;
“Subject to the provisions of this Act, proceedings of civil nature shall be heard
and determined- If they relate to immovable property, by a court within the
local jurisdiction of which the property is situated;
In any other case, by a court within the local jurisdiction of which the cause of
action arose or the defendant is ordinarily resident, or by a court to which
proceedings have been transferred under, or by an order made under Part V of
this Act”
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Provided that, nothing in this paragraph shall be construed as conferring
jurisdiction on primary courts to the exclusions of the court other category of
magistrate's court or any tribunal established by law.”

Moreover, In Kabyesiza Mwebesa v. Khalif Mashid and Another, Civil Appeal

No.26 of 2020 HC, (unreported) the court provided as follows:- “………therefore,
the matter can be instituted in Mwanza because most of the evidence can be
found in Mwanza not in Dar es Salaam”

BILL OF COSTS Vs. EXECUTION

Time Limit for an application for Taxation

Taxation is the legal term given to the process of the Court of assessing the costs
that the successful litigant incurs in prosecuting the suit. Taxing master, normally
the registrar or deputy registrar or the resident magistrate in charge in case of
the lower Courts, is the officer of the Court responsible for taxation. The whole
process starts by the successful litigant, if awarded costs, presenting in Court a
list of costs in a tabulation form commonly known as bill of costs, of amounts he
or she has spent in prosecuting the suit.

This should be done in a time not exceeding 60 days from the date of judgment
as provided under ORDER 4 of the Advocates Remuneration Order, G.N No. 264
of 2015. The bill of costs has to normally be supported by receipts and vouchers
for all disbursements together with any documents, drafts or copies thereof to
be relied upon during taxation and must be reasonable. What is reasonable
depends on the judicial discretion of the taxing master who after considering
the facts, complexity, public importance amongst other surrounding
circumstances of the case at the trial, decides on what figure the bill of costs

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should be taxed at. Unless the taxing master erred in these principles in which
case the aggrieved party can refer the matter to a Judge of the High Court, the
decision of the taxing master on the quantum is final.

Time Limit for an application for Taxation can be supported in the case Of Ks
Builders Limited Vs. Permanent Secretary Ministry Of Justice And Legal Affairs
And Hon. Attorney General, Miscellaneous Commercial Application No. 32 Of
2020 Where NANGELA, J was of the view that, “….Immediately afterwards, the
60 days rule within which he should have filed the application commenced...”
page 7 and 13.

In the case of Ally Ngumba Vs. Jackson Kayanda, Civil Reference No. 12 of 2018
MASABO, J cited Order 4 of The Advocates Remuneration Order, as it provides;
“A decree holder may within sixty days from the date of an order awarding
costs, lodge an application for taxation by filling a bill of costs prepared in a
manner provided under Order 55” page 4.

Section 53(1) of The Interpretation of Laws Act,[Cap 1 R.E 2020] states that,
“Where in a written law “may” is used in conferring a power, such word shall be
interpreted to imply that the power so conferred may be exercised or not, at
discretion” page 4 in the above case.

Complexity and time taken to research the matter whether to be considered in

awarding bill of costs

It is a reasonable and matter of fairness to compensate adequately an

Advocate for the work done in preparation and conduct of a case and not to
enrich him as stipulated in the Predecessor decision to the Court of Appeal in
Premchard Raichand Ltd And Another Vs. Quarry Services Of East Africa Ltd &
Others, [1972] 1 EA 162. Although, “Charges on instruction fees requires to

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confer the complexity or simplicity of the case itself. Example time taken by an
Advocate on arguments or Preliminary Objections” This have been stated in the
Court of Appeal case of Tanzania Rent A Car Ltd Vs. Peter Kimuhu, Civil
Reference No.09 Of 2020,CAT. KEREFU,J. A. Page No.14 (last paragraph) and
page NO.15 (1st paragraph).

Also Hon. KEREFU cited the aforementioned Premchard case to reflect the issue
as stated particularly in Page No.12. (2nd paragraph). also stipulated clearly
Criteria for determination of quantum of an instruction fee,( Page No.9) ( 2nd
paragraph) as they have been also shown in the case of National Commercial
Limited Vs. Mm Worldwide Trading Co. Ltd And 2others, Miscellaneous
Commercial Cause No. 217 of 2015, in page 2 and 3.

This argument was also pre stated in the case of Vijay Shantilal Chohan Vs.
Abdul Shakoor Halday Reference No. 14 Of 2019 Where MLYAMBINA,J stated “ I
further agree with the respondent that there is no good reason to fault the
taxing master decision on lack of certification only. It is my found view that the
taxed 1,000,000/= for each Advocate as instruction fee is reasonable in terms of
time and energy spent.”

Failure to file Bill of cost in time

As the general rule requires a Bill of cost to be filled within statutory requisite of 60
days from the day of Judgment, Failure to file within such prescribed time an
application shall be dismissed by the Taxing Master.

This can be supported in the case of Samuel Joel Makundi Vs. Dr. Wilberforce
Emanuel Meena And Babuel Emmanuel Meena, Misc. Commercial Application
No. 337 of 2017. Where an application for Bill of cost was previously dismissed for
not being lodged within prescribed time as stipulated under Order 4 of the
Advocates Remuneration Orders.

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In pari materia this was stipulated in the case of Vijay Shantilal Chohan Vs.
Abdul Shakoor Halday, Reference No. 14 of 2019 Where the reference was
dismissed by the Court for being time bared.( Page 6 ( 2nd paragraph))

The remedy upon it, is to file an application for an order for extension of time
under Section 14 (1) of the Law of Limitation Act, and Section 30 of The Civil
Procedure Code. The application shall be supported by an affidavit of
applicant himself with sufficient cause(s) of delay, as supported in the case of
Samuel Joel Makundi Vs. Dr. Wilberforce Emanuel Meena And Babuel
Emmanuel Meena, Misc. Commercial Application No. 337 Of 2017. Page 2(4 th
Paragraph), Page 5 (4th Paragraph)

EFD in Bill of Cost

In Vijay Shantilal Chohan Vs. Abdul Shakoor Halday, Reference No. 14 of 2019
MLYAMBINA,J referred the case of M/S Buckreef Gold Company Lt Vs. Tax Plan
Associates Ltd And Another, H.C Commercial Division, Misc. Commercial
Reference No. 3 of 2017, at page 6 which defined EFD as, “On the EFD‟S
receipts, I would like to define what EFD is. (Electronic Fiscal Device) is a
machine designed for the use in business for efficient management control in
area of sales analysis and stock control system and which conforms to
requirements specified by the law. As correctly observed by The Taxing officer,
EFD receipts are relevant in tax matters. There is no provision in Advocates
Remuneration Order, 2015 GN No. 264 of 2015 which requires proof of payment
by production of EFD receipts may be relevant when there is dispute as to
whether one pays taxes or government or not. That was not the issue here.”

On the aforementioned Vijay Shantilal case, [Link],J after considering

submission of both parties with the legal and logics viewed that, “I have taken
enough time to analyze Advocates Remuneration Order, 2015. I must admit and

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align with my brethren Mruma, J and my learned sister Makani, J. EFD receipts
are required on tax matters alone.”

Cases referred to support the issue were, M/S Buckreef Gold Company Lt Vs. Tax
Plan Associates Ltd And Another, H.C Commercial Division, Misc. Commercial
Reference No. 3 of 2017, at page 6 MRUMA,J and in Salehe Habib Salehe Vs.
Manjit Gurmkh And Another, Reference No. 7 of 2019 Makani,J, Where they
provides “ Production of EFD receipts or any other receipts is not requirement of
Advocates Remuneration Order, 2015 unless required to be supplied by the
Taxing officer during taxation”

In parimateria to the aforementioned grounds, The CAT arguments on Bill of

costs as far as EFD is concerned, is as follows. In Tanzania Rent A Car Ltd Vs.
Peter Kimuhu, Civil Reference No.09 of 2020. CAT Kerefu,J.A provided, “ In
taxation of Bill of Costs there is no need of proof of instruction fees by
presentation of receipts, vouchers and/or remuneration agreements.” In
support of this contention KEREFU,J.A Cited;

I. Paragraph 9(2), (3) and (4) of the third schedule to the Tanzania Court of
Appeal Rules, 2009.
II. Predecessor decision to the Court of Appeal, Premchard Raichand Ltd
And Another Vs. Quarry Services Of East Africa Ltd & Others, [1972] 1 EA
162 “It is trite law that instruction fees is supposed to compensate
adequately an Advocate for the work done in preparation and conduct
of a case and not to enrich him”

Aggrieved by decision of Taxing Master

A person aggrieved with a decision of taxing master whenever erred in

principles such as an assessment of costs an aggrieved party can refer the
matter to a Judge of the High Court through REFERENCE.

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Reference to the Judge made by Chamber Application supported by an
Affidavit within 21 days after the issuance of the certified copy of the taxing
master‟s decision. Also in case an aggrieved party is out of time can apply for
an extension of time showing a good cause.

These facts can be supported in the case of Charles Marco Naibala Vs. Thomas
Marco Naibala, Civil Reference No. 08 of 2017. Where an applicant field an
application for reference against decision of the taxing master for among the
many, striking out an application for settling aside a dismissal order for the
reason of being preferred under a wrong party. In the case of Maximilian
Rwabulala Vs. Emilian Kalugala,(1987) TZHC 46. An applicant filled an
application for reference to the High Court against an assessment of costs by
the Taxing master.

Whether a copy of decree is necessary in application of Bill of Costs

A decree holder within the period of 60 days has to apply for Bill of Cost, that on
which matter of attaching judgment, decree and court proceeding should be
settled whether required. In Samuel Joel Makundi Vs. Dr. Wilberforce Emmanuel
Meena And Another, Misc. commercial Application No. 337 of 2017. settles this
matter, where SONGIRO,J was of the view that, “I have consider the point and
find that, possession and filling of judgment, decree and court proceedings are
necessary for the preparation, and filling of bill of cost. So, if there was delay in
securing copies of the said documents, that, is sufficient reason for the delay in
filling application, and may be basis of extension of time” Page 3(4 th paragraph)

In Fastjet Airlines Limited Vs. John Mnaku Mhozya, Misc. Civil Application No. 210
of 2017. MWANDAMBO,J was of the view that “having examined that decision,
it seems to be logical that a copy of the decisions in the applications of bills of

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cots must be attached to the bill so as to enable the taxing officer performs his
duties within the four corners of the decision” Page 17 (1 st paragraph).

EXECUTION (SYAT OF EXECUTION) AND PENDING APPEAL OF THE SAME MATTER

The judgment debtor, who wants to appeal the decision and orders of the lower
court, must apply to the court for stay of execution, in a matter that an appeal
shall be determined first before to execute a decree. Execution of decree may
be stayed either by the court to which the decree has been sent for execution
in accordance with Order. XXI rule 24 of the Civil procedure Code, or by the
court itself which passed the decree or an appellate court under Order .XXXIX
rule. 5 of The Civil procedure Code.

In Haruna Mpangaos And Another Vs. Tanzania Portland Cement [Link], Civil
reference no.03 of 2007. The court highlighted different grounds upon which an
applicant shall adhere before applying stay of execution, wit;

a) If the applicant can show that refusal to do so would cause substantial

irreparable loss to him which cannot be atoned by an award of
damages; or
b) If refusal to do so would, in the event the intended appeal succeeds,
render that success nugatory; or
c) If, in Court‟s opinion, it would on a balance of convenience to the parties
to do so. (Page 8.)

In Express (T) Ltd And Zahanati Ya Biashara Ya Ndani, Vs. El-Nasr Import Export
[Link], Civil reference, no. 25 of 2006, KAJI,J.A also highlighted that “From our
reading and understanding of this rule, it is plain clear that the provision
presupposes that the execution to be stayed is in respect of the decree or order
which is intended to be appealed against as portrayed in the notice of appeal.
In other words, the Court may only stay execution of a decree or order whose

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appeal is intended or is pending before the Court. It cannot stay execution of a
decree or order which is not the subject of the appeal before it” emphasis is
added in condition to application of stay of an execution. (Page 12)

Stay of Execution and reasons for grant of stay

Application to the Court of Appeal seeking a stay of the execution of the High
Court decree, is by way of a Notice of Motion which is taken out under the
provisions of Rule 11 (3) (4) (5) (a) (b) and (c) as well as Rule 11(6) of the
Tanzania Court of Appeal Rules, 2009 (the Rules). The Notice of Motion is
supported by an affidavit. Refer the case of David Mahende Vs. Salum Nassor
Mattar And Another, Civil Application No. 160/01 of 2018

The manner of giving security in stay of execution

In the same case above, MUSA,J.A Cited the case of Mantrac Tanzania Ltd V.
Raymond Costa, Civil Application No. 11 of 2010 the Court viewed that "One
other condition is that the applicant for a stay order must give security for the
due performance of the decree against him. To meet this condition, the law
does not strictly demand that the said security must be given prior to the grant
of the stay order. To us a firm undertaking by the applicant to provide security
might prove sufficient to move the court all things being equal to grant a stay
order, provided the Court sets a reasonable time limit within which the applicant
should give the same.”

In Tanzania Electric Supply Company (TANESCO) Vs Independent Power

Tanzania Limited (IPTL) & 2 Others [2000] T.L.R 324 court provided that “In
Tanzania it is now well settled that the principle factors a court should consider
whether or not to grant a stay of execution are the following: - (a) Whether the
appeal has, prima facie, a likelihood of success; (b) Whether its refusal is likely to

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cause substantial and irreparable injury to the applicant; and (c) Balance of
convenience.”

In Felix Emmanuel Mkonga Vs Andrew Kimwaga, Civil Application No. 249 of

2016 (unreported) CAT at Dar es Salaam. At page 8 court of Appeal provided
that “It follows therefore that the applicant must satisfy that, the application was
filed within a reasonable time; he will suffer substantial loss if the order is not
granted; and he has furnished security for due performance of the decree
sought to be stayed.”

The rationale behind seeking stay of execution

In Felix Emmanuel Mkonga Vs Andrew Kimwaga, Civil Application No. 249 of

2016 (unreported) CAT at Dar es Salaam .Court of Appeal At page 6 provided
that “…the rationale behind the process of seeking stay of execution is to
enable the unsuccessful party in criminal or civil proceedings, who has lodged a
notice of appeal and/or preferred an appeal, to maintain the status quo of the
matter obtaining at the time of the application until the hearing and
determination of the pending appeal.”

In Catherine Honorati Vs CRDB Bank PLC and Two Others, Civil Application No. 42
of 2016 9unreported) CAT at Dar es Salaam court of Appeal At page 11provided
that “…the position of law is well settled, that a stay to execute a decree or
order, can only be made in respect of an executable decree or order given by
a court or tribunal.”

Reasons were also clearly analyzed in the case of Sudi Seif Ngota (Administrator
of Estate Of Seif Mohamed) Vs. Aloyce John Kazimbaya, Civil Application No.
261/71 of 2017 and the case of Joramu Biswaco Vs. Hami Richard, Civil
Application No. 11 of 2013. The same referred Rule 11(5) of The Court of Appeal

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Rules, where by the Court established ingredient for granting stay of execution
as follows;

i. That, substantial loss may result to the party applying for stay of
execution unless the order is made.
ii. That, the application has been made without unreasonable delay
(which is 14 days after the notice of execution).
iii. That, the security has been given by the Applicant for the due
performance of such a decree.

The same grounds have been stipulated in the case of Indian Ocean Hotels Ltd
T/A Golden Tulip Dar Es Salaam Vs. Nitesh Suchak T/A Smart Dry Cleaers, Civil
Application No. 08 of 2010.

Whether hearing of bill of cost should stay hearing of appeal

It is of deferent legal views responding to this issue, since different case laws
states differently on this matter. In Noman-Mahboub (T/A Noman Al Mahboub
General Trading Corporation) Vs. Milcafe Limited, Commercial case no. 41 of
2003 KIMARO,J was of the view that “ Since the notice of appeal has been
issued, the jurisdiction of High Court has ceased. Taxation is not a matter which
has been specifically allowed to proceed even after issuance of a notice of
appeal to the Court of Appeal. Moreover the notice of appeal given shows that
the respondent was aggrieved by the same decision which taxation is sought,
and wants to impugn it in the court of Appeal. It is improper to proceed with
taxation under the circumstances” Page.3 (1st paragraph)

Also in Mutsushta Electric Co (E.A) Ltd Vs. Charles George T/A As G.G Traders,
Civil appeal No. 71 of 2001( CAT) reflecting the same view, that “ I am of the
considered opinion that once a notice of appeal is filed under Rule 76, then this

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court is seized of the matter in exclusion of the High Court except for application
specifically provided for such as leave execution where the is no order of stay
from this Court”

Apart from this, in case of The Attorney General Vs. Amos Shavu, Taxation
reference No. 2 of 2000, The Court of Appeal, by LUGAKINGIRA viewed that,

“Before I conclude, I desire to address briefly one or two things which cropped
up. One MR. KAMBA argued that taxing officer erred in proceed with the
taxation while there was a pending appeal. I do not think so. The taxation had
nothing to do with the decision in the High Court against which an appeal was
pending” . Page 6 (2nd paragraph).

Format of Bill of Cost

See the case of Harrisson Mandali And 9 Others Vs. The Registered Trustee Of
Archdiocese Of Dar Es Salaam, Civil reference No. 04 of 2019

CONTRACTS

Implied contracts

Implied contracts are a creature of statute, section 9 of the Law of Contract

Act, [Cap 345 R. E. 2019].In British American Tobbaco Kenya Limited Vs Mohan
Oysterbay Drinks Limited, Civil Appeal No. 209 of 2019, (unreported) CAT Dar es
Salaam, at page 14. The court was of the view that,

“The principle as I understand it (Section 9 of the Law of Contract Act is that,

where a party has, by his words or conduct, made to the other a promise or
assurance which was intended to affect the legal relations between them and
to be acted on accordingly, then, once the other party has taken him at his
word and acted on it, the one who gave the promise or assurance cannot
afterwards be allowed to revert to the previous legal relations as if no such

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promise or assurance has been made by him, but must accept their legal
relations subject to the qualification which he himself has so introduced, even
though it is not supported in point of law by any consideration, but only his
words.”

Read also the case of Catherine Merema Vs Wathaigo Chacha, Civil Appeal
No.319 of 2017 (unreported).

Sanctity to contract

Read the case of Abualy Alibhai Azizi v. Bhatia Brothers [2000] TLR 288

Privity of contract

In the case of Austack Alphonce Mushi Vs Bank of Africa Tanzania Limited &
Another, Civil Appeal No.373 of 2020 (unreported). The court viewed that “…by
way of emphasis, we would add that contract, as a juristic concept, is the
intimate if not exclusive relations between the parties who made it”

Formation of a contract

In the case of British American Tobbaco Kenya Limited Vs Mohan Oysterbay

Drinks Limited, Civil Appeal No. 209 of 2019, (unreported) CAT Dar es Salaam.
The court ordered that, “…formation of a contract is a free undertaking…” At
page 22

Breach of contract

In Simba Motors Limited Vs Joh Achelis & Sohne GMBH and Another, Civil Appeal
No. 72 of 2020 (unreported) CAT at Dar es Salaam. CAT. court At page12
ordered that “Every failure to perform a primary obligation is a breach of
contract.”

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Judges had quoted the words of lord Diplock in Photo Production Ltd Vs Securior
Transport Ltd [1980] 1. All ER 566.

It is clear known principle of law that, court of law cannot re-structure the
agreement freely entered between the parties bearing all prerequisites
conditions of the valid contract. In the court of Appeal case of Univeler
Tanzania Ltd v. Benedict Mkasa Trading as Bema enterprises, Enterprises, Civil
Appeal No.49 of 2019, CAT at DSM (unreported), at page 16 it was held that;

“Strictly speaking, under our laws, once parties have freely agreed
on their contractual clauses, it would not be open for the courts to
change their clauses which parties have agreed between
themselves. It was up to the parties concerned to renegotiate and
to freely rectify clauses which parties find to be onerous. It is not the
role of the Court to re-draft clauses in agreements but to enforce
those clauses parties are dispute”

In Simon Kichele Chacha versus Aveline M. Kilawe, Civil Appeal No. 160 of 2018,
(TZCA at Mwanza) (unreported) it was held at page 8 that: -

“It is settled law that parties are bound by the agreements they
freely entered into and this is the cardinal principle of the law of
contract. That is, there should be a sanctity of the contract as lucidly
stated in Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R 288 at
page 289 thus: -

'The principle of sanctity of contract is consistently reluctant to admit

excuses for non-performance where there is no incapacity, no fraud
(actual or constructive) or misrepresentation, and no principle of
public policy prohibiting enforcement."

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In Harold Sikiete Levira and Another v. African Banking Corporation Tanzania
Limited(Bank ABC) and Another, Civil Appeal No.46 of 2022, CAT (unreported)
the court of Appeal was of the view that;

“The court cannot condone the breach of the terms and conditions freely
entered into by the parties. In the eyes of the court, these amounts to
lame excuse by the appellants for non-performing a contractual
obligation which, with much respect we cannot entertain”pg.7-8

MODES OF EXECUTION

By arrest

In the case of Harel Mallac Tanzania Limited V. Junaco (T) Limited And Justin
Lambert Misc. commercial Application No. 144 of 2016. Pg.4 the court viewed
that “Other modes of execution must all have failed”

Execution of decree against the government

The execution of decree against the government is governed under section 16

of the Government Proceeding Act, and not Order XXXI of the CPC. The
provision upheld in the case of Karata Ernest And Others Vs Attorney General,
Civil Revision No. 10 of 2010, In the CAT at Dar es Salaam.

WARD TRIBUNAL

Composition of Ward Tribunal

Composition of ward tribunal must include 4 to 8 appointed members; if the

members of tribunal are 8, then 3 out of those 8 must be women. Section 4(1) a
of The Ward Tribunal Act also Secretary of the tribunal does not allowed to
make decision and is not member of tribunal/ if he or she participates in tribunal
as member then the proceeding of tribunal shall be nullity this provided under

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section 5(3) of The Ward Tribunal Act No.7 of 1985 “A Secretary of the Tribunal
shall attend all sittings of the Tribunal and record all its proceedings but shalt not
participate in decision making”

Reading together with section 11 of The Land Dispute Courts Act Cap 216 R.E
2019 For the decision of the tribunal to be valid decision we have to consider
the following factor.

i. Composition of the tribunal, on whether sitting of tribunal include 4 to 8

members, and on whether all members are eligible to participate or not.
ii. Area in dispute, on whether the tribunal conduct search in disputed area.
iii. The decision must be provided by majority vote and not otherwise, upon
that opinion of each member and have to be written down.

In the case of Akonaay Tsere Vs. Severini Umbula, Misc. Land Appeal No. 38. Of
20017, the High Court was of the view that “in so far as it was signed by
secretary of the ward tribunal who is not a member of the tribunal; the decision
of the ward tribunal was a nullity from the beginning” pg 2(2nd paragraph) The
case also decided the same by citing the case of Nada Qori Vs. Isack Gilba,
Misc. Land Appeal No. 2 Of 2013. H.C of Arusha where it was precedented the
same that, for the sake of decision making the ward tribunal secretary was not
part of decision marker.

In the case of Mwita S/O Wiranga Vs. Pilly Sincha, Misc. Land Appeal No. 70 Of
2020. H.C Of Musoma. Where the Court was of the view that “The issue of
composition of the trial tribunal should not be taken lightly. It goes to the root of
the case on the mandate of the tribunal to hear and determine the matter filled
before it” pg 3 Also the case discussed the importance of women members to
participate in decision making. Pg 3

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In the case of Alexander Mashauri Vs. Regina William, Misc. Land Appeal No. 64
Of 2020 The High Court was of the view that “composition of ward tribunal is not
procedural matter but a legal issue. Failure to observe composition of ward
tribunal as in the matter at hand vitiates the proceedings, judgment and orders
of the ward tribunal and appeal arising thereto” pg 4, 2nd paragraph.

In the case of Elias Tiliphone Musheshe Vs. Ezekiah Cronery, Misc. Land Case No.
36 Of 2019 The Court observed that “ The directives of the superior courts have
the additional duty of ensuring proper application of the laws by the courts
below Diamond Trust Bank Tanzania Bank Ltd Vs. Idrisa Shehe Mohamed, Civil
Appeal No. 262 Of 2017” pg. 4. “ I concur and uphold the decision of the
Learned Chairman of the District Tribunal in setting aside proceedings and
quashing decision of the ward tribunal” pg 4, 2nd paragraph.

In the case of Venance Tengeneza Vs. Kawawa Mwipili, Misc. Land Case
Appeal No. 13 Of 2008.H.C, the Court was of the view that, secretary was not a
decision maker in the tribunal.

HOWEVER; there are some circumstances where by non-compliance with the

composition of the tribunal shall not render the decision of the tribunal to be null,
the circumstances provided herein below;

Section 45 of the Land Disputes Courts Act, [Cap 216 R.E 2019] the section was
upheld in the case of Yakobo Magoiga Gichere Vs. Peninah Yusuph, Civil
Appeal No. 55 of 2017, CAT , where by court held that “the court of appeal shall
not render the decision of trial courts as nullity due to irregularities, error or any
fact unless if the irregularities court led non dispense of justice”

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“the court should not read additional procedural technicalities into the simple
and accessible way Ward Tribunals in Tanzania conduct their daily businesses”
page 12

“With the advent of the principle of overriding Objective principle brought by

the Written laws (Miscellaneous Amendment) (No.3) Act, 2018 [Act No.8 of 2018]
which now requires the court to deal with cases justly, and to have regard to
substantive justice; Section 45 of The Land Dispute Court Act should be given
more prominence to cut back on over-reliance on procedural technicalities”
page 13 and 14

ALSO, “Failure to identify the member who preside over the proceedings of
ward tribunal when the chairman was absent, did not occasion any failure of
justice to the appellant. If anything, it was the appellant who benefited from the
proceedings.” page 15

In the case of Francis Mtandio Vs. Nuhu Kiseka, Miscellaneous Land Case
Appeal No. 43 Of 2019. The Court provided that “listing a secretary together
with the other members of the tribunal do not provide a conclusive evidence
that the said secretary participated as a member in decision making at the trial
tribunal” pg 4.

Further In Francis Mtandio Vs. Nuhu Kiseka, Miscellaneous Land Case Appeal
No. 43 Of 2019 hereinabove court provided that “there was no reason to set
aside the decision of the trial Ward Tribunal, therefore it should be restored” pg 3
2nd paragraph.

The case went further by saying that “Thus the circumstances in Venance
Tengeneza’s case are different from the circumstance of this case.” Pg. [Link]
case also referred the case of Magoiga mentioned above.

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“Therefore I agree with the appellant that it was wrong to nullify the judgment
and proceedings of the Trial tribunal on the basis of the participation of
secretary of the tribunal in the decision” pg.4

Examination and cross examination of witness.

The tribunal is procedural subject to allow examination or cross examination of

witness, despite The Ward Tribunal Act No.7 of 1985 further stipulates that, in
case of a child, he shall be assisted to cross examine the witness by his parents,
guardians or friends. Section 13(3) of The Ward Tribunal Act.

THEFT

How to prove theft

In Isidori Patrice Vs. R. Criminal Appeal No. 224 Of 2007, page.11. Court of
Appeal gives guideline that, “ It is mandatory statutory requirement that every
charge in subordinate Court shall contain not only a statement of the specific
offence with which accused is charged but such particulars as may be
necessary for giving reasonable information as to the nature of offence
charged. The prosecution must prove that accused committed the actus reus of
the offence cha rged with necessary mensrea.”

Ingedients of Theft. Section 258 of The Penal Code, Any person who;

(a) Without consent of the owner. Consent must be obtained by intimidation

or fraud. Prosecution must prove intimidation and fraud by an accused
person. Section 258(2), emphasizes that an act must be done
(dishonestly) as in the case of Christina Mbuna Vs. R (1983) TLR 34 the
Court was of the view that prosecution has a duty to prove actus reus and
mensrea by an accused person.

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 (b) Taking. Taking possession or domination by an accused, whether by
intimidation, by any trick, By intimidation where a man having the
intention to steal, obtains possession of goods by frightening the owner.

(c) Carrying away. There must be a prove that an accused carried away the
same property and how was the property carried away

(d) Things capable of being stolen. Must be movable, must possess some
value, must be the property of some person. In this part prosecution failed
to prove how the said money was capable being stolen or taken from the
customer‟s account.

In the case of MT. 91714 PTE Masoud Vs. The Republic. Criminal Appeal No. 73
Of 2019. Ismail,J reffered the case of George Mwanyingili Vs. Republic, CAT-
Criminal Appeal No. 335 of 2016 (Mbeya-unreported) stated as follow; “We wish
to re-state the obvious that the burden of proof in criminal cases always lies
squarely on the shoulders of the prosecution, unless any particular statute directs
otherwise. Even then however, that burden is on the balance of probability and
shift back to prosecution." Page.9

Prosecution supposes to prove all ingredients of stealing and not mere

allegations, “Before we ascertain validity of this contention, it is apposite that the
ingredients of the offence with which the appellant was charged be set out
clearly” page.9

In the same case, the Court analyzed ingredients of theft, as it provides, A

person who takes or converts anything capable of being stolen is deemed to do
so fraudulently if he does so with any of the following intents, that is to say;

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 i. An intent permanently to deprive the general or special owner of the thing
of it;
ii. An intent to use the thing as a pledge or security;
iii. An intent to part with it on a condition as to its return which the person
taking or converting it may be unable to perform;
iv. An intent to deal with it in such a manner that it cannot be returned in the
condition in which it was at the time of taking or conversion; or
v. In the case of money, intent to use it at the will of the person who takes or
converts it, although he may intend afterwards to repay the amount to the
owner and special owner" means any person who is in lawful possession or
custody of, or any proprietary in the thing in question."

Also In page. 11(1st paragraph) The court provided that, in theft offences act
must be proved ,that prosecution can‟t establish theft under mere allegations
“From this excerpt, it is clear that, in theft cases, action is as important as the
intent The act, that is to say, actus reus, is in the actual deprivation or conversion
of the thing, while the intent, mensrea, resides in the offender's intention to
fraudulently convert the stolen thing and deprive the owner of its use.” page..11

In the same case of, MT. 91714 PTE Masoud Vs. The Republic, the Court cited the
case of Christian Mbunda V. Republic , wherein the Court (Msumi, J, as he then
was) held that:

"(i) It is an elementary rule of law in order to convict an accused of theft the

prosecution must prove the existence of actus reus which is specifically termed
as asportation and mensrea or animus furandi” page. 11

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Banker-Customer Theft

The customers has a duty to keep his or her ATM card and password
confidential, in Morogoro Stores (1976) Ltd Vs. National Bank Of
Commerce.[1985] TLR 49. In page 52, In this case, the court discussed the issue of
carelessness of the customer on banking transaction. “…The carelessness of the
customer or neglect of the customer to take precautions unconnected with the
act itself cannot be put forward by the banker as justifying his own default”.

In the case of Isidori Patrice Vs. Republic. Criminal Appeal No. 224 of
2007(unreported). Court of Appeal at page 11 gave guideline for the criminal
cases that, “The prosecution must prove that accused committed the actus reus
of the offence charged with necessary mensrea.”

In the case of Veronica Pastory Vs. The Republic. Criminal Appeal No. 139 of
2020,(unreported) . The High Court held that in order to convict a victim on the
offence of theft the two ingredient takes anything capable of being stolen, or
fraudulently converts must be clearly and without any doubt be proved. Pg.13-
14

In the case of National Microfinance Bank (PLC) v. Delphina Ikanda Mama, Civil
Appeal No.149 of 2017H.C at DSM (unreported). The High Court in page 9 ruled
very clearly on chances of a person to access bank account of another and
mobile baking of another that, “no one can have banking access of another
without having a mobile phone, a pin number and the ATM number of the
user.”. The court went further that, in fact the Bank does not know those pin
numbers of the clients also “clients are placed in a duty to protect their money”

We would therefore, agree with the reasoning of Lord Denning on the need of
the Government to protect innocent persons in the society against criminality.
That the court should not be observed by proving the case leaving no remote

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possibility of doubt, which may lead into another danger of being unable to
protect them, Lord Denning in the case of Miller v. Minister of Pensions (1947) 2
All ER 372 held;-

“…proof beyond reasonable doubt does not mean proof beyond the shadow
of doubt. The law would fail to protect the community if it admitted fanciful
possibilities to deflect the course of justice. If the evidence is strong against a
man as to leave only a remote possibility in his favour which can be dismissed”

In Mshewa Daudi v. Republic, Criminal Appeal No.50 of 2018.(unreported).The

court quashed the conviction because the prosecution failed to prove the
ingredients of theft. The case clearly elaborated how the offence of theft should
be proved, where it provided that “In stealing, the actus reus is the taking and
the intention to deprive the owner of the thing stolen is asporation, that is
moving something from its original place to another. Both must be established.”
Pg.10

In the case of Morogoro Stores (1976) Ltd v. National Bank of Commerce.[1985]

TLR 49. In page 52, In this case, the court discussed the issue of carelessness of
the customer on banking transaction. “…The carelessness of the customer or
neglect of the customer to take precautions unconnected with the act itself
cannot be put forward by the banker as justifying his own default”

Theft vs. admission of fact

In Simon Kilowoko v. Republic [1989] TLR 159, the Court ordered that “Admission
that there may have been loss does not amount to an admission to have stolen
the money. The prosecution has to prove beyond reasonable doubt that the
appellant committed the offence charged” The Court Went further that;

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“He admitted that there may have been loss as alleged, and suggested that
this might be due to carelessness in giving change to passengers. That does not
mean he admitted he stole the money”

ADVERSE POSSESSION & INVITEE/LICENSEE

As to the reminder, adverse possession and future interest are absolutely not
collateral, (not in the same vein) since future interest (lease and license) vitiates
and destroy the adverse possession, Section 36(2) and (3) of The Law of
Limitation Act, future interest in land stops running of time, and there is no
adverse possession in future interest such as license and lease, since the host has
right of reversion, unless future interest expires.

In the case Maigu M. Magenda Vs. Arbogast Maugo Magenda, Civil Appeal No.
218 of 2017, Court of Appeal at Mwanza. The Court was of the view that,
regardless of continuous use of land over 12 years and regardless building
permanent home to an area, a person will not become an owner in regard to
license or invitee relationship. “In this appeal, although the appellant has
argued that he had exclusive ownership in 2012, we do not think continuous use
as invitee, or by building a permanent house on another person‟s land or even
paying rent in his own name would amount to assumption of ownership by the
appellant” pg. 13

In Swalehe Vs. Salum [1972] Hcd No. 140 Kwikima, J quoted with approval the
case Mkakofia Meriananga Vs. Asha Nidicia [1962] 204 that “No invitee can
exclude his host whatever the land is his occupation” the same was provided in
the case of Shija Kishiwa Vs. Nshoma Kanele, Misc. Land Appeal No. 13 of 2020,
The High Court of Tabora, pg. 12(2nd paragraph) where the Court ruled that “a
licensee always even if could have used the land for hundred years will not run
the same to be his property”

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Similarly in the Court of Appeal case of Musa Hassani Vs. Barnabas Yohonna
Shedafa, Civil Appeal No. 101 of 2018. Court of Appeal at TANGA. The Court
precedented that; “As far as we are aware no invitee can exclude his host
whatever the length of time the invitation takes place and whatever the
unexhausted improvements made to the land on which he was invited - see:
Samson Mwambene v. Edson James Mwanyingili [2001] TLR 1, Makofia
Meriananga v. Asha Ndisia [1969] HCD n. 204 and Swalehe v. Salim [1972] HCD
n. 142;” pg 5.

“We wish to underline that an invitee cannot own a land to which he was
invited to the exclusion of his host whatever the length of his stay. It does not
matter that the said invitee had even made unexhausted improvements on the
land on which he was invited” pg 6

The aforementioned case laws, proves that, Section 9(1) on averse possession
would not apply, on host and licensee relationship.

DETERMINATION OF EVIDENCE FROM BOTH THE PARTIES

The judgment or ruling must emanates after evaluation and determination of

evidence from both the parties. In the case of The National Microfinance Bank
(Nmb) Vs. Chama Cha Kuteta Haki Na Maslahi Ya Walimu Tanzania
(Chakamwata), Civil Appeal No. 17 of 2019. The Court provided that;

“There are various decision of the Court of Appeal which has insisted the need
for considering the evidence of both parties and failure to do is bad in law,. This
was understood in the case of Hussein Iddi and Another Vs. Republic [1986] TLR
166, where the Court held that, “It was a serious misdirection on the party of trial
Judge to deal with prosecution evidence on its own and arrive at the
conclusion that was true and credible without considering the defence
evidence” pg.7

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“It was therefore expected of the trial Court, to not only summarize but also to
objectively evaluate the gist and value of the defence evidence, and weight
against the prosecution case” pg. 9 first paragraph. I strongly view that, it was
denial of the right to be heard, since an appellant was not given right to defend
neither produce evidence

NON JOINDER OF PARTIES, NECESSARY PARTY

In the case of Juma B. Kabala Versus Laurent Mkande [1983] TLR 103, Court held
that non joinder of parties is fatal.

Abdullatif Mohamed Hamis Versus Mehboob Yusuf Osman And Fatna

Mohamed, Civil Revision No.06 of 2017, whereby Court provides two ingredients
of necessary parties.

i. Order 1 Rule 9 of The Civil Procedure Code requires that no suit shall be
defeated merely for non-joinder of parties.
ii. Order 1 Rule 1 of The CPC require that all persons may join in one suit as
plaintiffs in whom the right to relief alleged to exist in each plaintiff arises
out of the same act or transaction, and if such persons brought separate
suits any common question of law or fact would arise.
iii. Order 3 of CPC provides that all parties who are necessary must be joined
to the suit.
iv. Order 1 Rule 3 of CPC provides that all persons may be joined as
defendants against whom any right to relief in respect of or arising out of
the same act or transactions or series of act or transactions is alleged to
exist and if separate suits were brought against such persons, any
common question of law or fact would rise
v. Order 1 rule 9 of the CPC only holds good with respect to the non-joinder
and misjoinder of non-necessary parties

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Order 1 rule 10(2) of the CPC provides to the effect that the court may at stage
of the proceedings, either upon or without the application of either party if there
is non-joinder of parties whose presence before the court may be necessary
then court may order joinder of that parties, this provision upheld in the case of
Tanga Gas Distributors Limited Vs Mohamed Salim Said And 2 Others.

There is non-joinder of parties that may render a suit unmaintainable and those
that do not affect the substance of the matter, upon that Order 1 Rule 9 of the
Civil procedure is a rule which does not affect the substantive matter. If the
decree cannot be effective without the absent parties then the suit is liable to
be dismissed and upon that this non joinder could be regarded to resulted the
suit into un maintainable this position provided in the case of Attorney General
Vs Kenya Bereau Of Standards And Geo- Chem Middle East, Civil Appeal (
Application No. 132 of 2017 Court of Appeal Kenya)

The position in the above case of AG Vs Kenya Bereau was upheld in the case
of Tanga Gas Distributors Limited Vs Mohamed Salim Said And 2 Others, Civil
Application for No. 68 of 2011 ( unreported) in this case court took the view of
the decision of supreme court of Uganda.

Ingredients of Necessary Party

In the case of Benaes Bank Limited Vs Bhagwandas, A.I.R ( 1947) where by the
court decision provides ingredient in respect with the necessary party and
such principle adopted in the case of Abdullatif Mohamed Hamis Vs Methboob
Yusuf Osman And Fatna Mohamed, Civil Appeal No. 6 of 2017, in the Court of
Appeal of Tanzania. The ingredient includes the following

i. There has to be a right of relief against such party in respect of the matters
involved in the suit land

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 ii. That court must not be in a position to pass an effective decree in the
absence of such a party.

Meaning of Necessary Party: that a necessary party is one whose presence is

indispensable to the constitution of a suit and in whose absence no effective
decree or order can be passed. This meaning provided in the case of Abdullatif
Mohamed Hamis Vs Methboob Yusuf Osman And Fatna Mohamed, Civil Appeal
No. 6 Of 2017.

In Tang Gas Distributors Limited Vs Mohamed Salim Said & 2 Others, Civil
Application for Revision No. 68 of 2011 (unreported) court held that “…an
intervener, otherwise commonly referred to as a NECESSARY PARTY, would be
added in a suit under this rule …even though there is no distinct cause of action
against him where (a)… (b) his proprietary rights are directly affected by the
proceedings and to avoid multiplicity of suits, his joinder is necessary so as to
have him bound by the decision of the court in the suit.”.

In Abdullatif Mohamed Hamis Vs Mehboob Yussuf Osman and Another, Civil

Revision No. 6 of 2017 (unreported). “The determination as to who is a necessary
party to the suit would vary from a case to case depending upon the facts and
circumstances of each particular case. Among the relevant factors for such
determination include the particulars of non-joined party, the nature of relief
claimed as well as whether or not, in the absence of the party, an executable
decree may be passed.”

In Tanga Gas Distributors Limited Vs Mohamed Salim Said & 2 Others, Civil
Application for Revision No. 68 of 2011 (unreported). “Settled law is to the effect
that once it is discovered that a necessary party has not been joined in the suit
and neither party is ready to apply to have him added as a party, the court has
a separate and independent duty from the parties to have him added…”

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Attorney General as Necessary Party

It is the requirement of the law under Section 6(3) and (4) of the Government
Proceeding Act [Cap 5 R.E 2019], as amended by The Written Laws
(Miscellaneous Amendments) Act, No.1 of 2020, makes mandatory that,

“All suits against the Government, Ministry, Government Department, Local

Government, Executive Agency, Public Corporation, Parastatal Organization or
Public Company, must join the Attorney General as Necessary Party” and that
“non-joinder of the Attorney General shall vitiate the proceedings of any suit”

Moreover, since the provisions has been couched in mandatory terms as per
Section 53(2) of The Interpretation of Laws Act [Cap 1 R.E 2020], means they
should be complied.

In the case of MSK Refinary limited v. TIB Development Bank Limited and
Another, Misc. Civil Application No.30 of 2020, H.C at DSM (unreported), the
court ruled on the similar matter that “any suit instituted against the Government
as prescribed under Section 6(3) and (4) of the Government Proceedings Act as
amended, must join the Attorney General”
Further the court provided that;
“Given the definition above cited which I fully subscribe to,
defines a suit to cover any proceedings by any party or parties
against another or others instituted in the court of law and I would
add in any competent tribunal. The application instituted by the
applicant being part of the proceedings arising from the main suit
Civil Case No. 80 of 2020 in my considered view cannot be
excluded from the definition of suit under section 6(3) of the
Government Proceedings Act” pg.5 [Emphasis added]

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Thus, as the court provided, the intention of the parliament is all suits,
applications (miscellaneous and main applications) instituted to the court
and/or tribunal aganst the Government must adhere to the provision of Section
6(3) and (4) of the Government Proceedings Act as amended. The court held
the application incompetent for non-joinder of the Attorney General.

In the case of Maua Stephen Ndaki (Administratix of the estate of the late Steven
Njile Ndaki) v. TIB Development Bank Limited and 3 Others, Land Case No.4 of
2021, H.C at DSM (unreported), the Court was of the affirmed view that “since
the defendant (TIB Development Bank) is the Government owned Bank, makes
the suit to fall squarely into the compliance with the provisions of the
Government Proceedings Act…” pg.3 and 4 [Emphasis added]

Necessary party, Buyer vs. Seller

In the case of B. Kadala Versus Laurent Mkande [ 1983] TLR 103, court held that
in suit for the recover of land sold to a third party, the buyer should be joined
with the seller as a necessary defendant non joinder will be fatal to the
proceedings.

EXTENSION OF TIME

In the case of Felix Tumbo Kisima Vs. TTCL And Another [ 1997] Civil Case no 1,
Court held that „ it should be observed that sufficient cause should not be
interpreted narrowly but should be given a wide interpretation to encompass all
reasons or causes which are outside the applicants power to control or
influence resulting in delay in taking any necessary step.

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In the case of Leonard Magesa Vs. M/S Olam (T) Ltd, Court of Appeal of
Tanzania, Court held that illness of the applicants during the material time
constitute a good cause for granting an extension of time.

Sebastian Ndaula Vs Grace Rwamafe, Civil Application No. 4 of 2014 (

unreported) court stated that in an application for extension of time, the
applicant has to account for every day of the delay this decision upheld in the
case of Elfazi Nyatega And Three Others Vs Caspian Mining Ltd, Civil
Application No. 44/08 of 2017 In the Court of Appeal of Tanzania

Appeal out of time.

In the case of Alex Lwabwina Vs Bp Tanzania Limited, Civil Appeal No. 02 of

2016, in the court of Appeal of Tanzania at Dar- es- Salaam, court held that
“Court cannot entertain the appeal which has been lodged out of time, while
no extension of time has been sought and granted to the appellant and notices
of appeal to court of appeal must be instituted within 30 days”

WRITING ERRORS/ MISTAKES (name, year etc.)

In the case of Marwa Kachanga Versus Republic, Criminal Appeal No 84 of

2015, court provides that failure to put the correct name of the parties in a case
is fatal.

However exception can be seen in the case of Leila Jalaludin Haji Jamal Versus
Shaffin Jalaludin Haji Jamal, Civil Appeal No 55 Of 2003, Court of Appeal at Dar
es Salaam ( unreported) Court held that error of citing year in appeal is a minor
curable defect.

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APPELLATE COURT CANNOT CONSIDER OR DEAL WITH THE ISSUE THAT WERE NOT
RAISED AT THE LOWER COURT

Farida And Another Vs Domina Kagaruki, Civil Appeal No. 136 Of 2006 (
unreported) court held that court shall not accept to deal with the complaint
that was not raised at the trial tribunal.

That court shall base on the matter which submitted by the parties during their
pleadings, and that a party to the case must state his case on the way that his
opponent will not be taken by surprise James Funke Ngwagio V Attorney
General [ 2004] TLR 161

CAVEAT EMPTOR

That the buyer of land must be aware, and if he could not exercise due
diligence then seller he shall not be liable. In the case of Ramadhani Msangi
versus Sunna G. Mandara and 2 others, Land Appeal No. 39 of 2017, the High
Court of Tanzania at Dar es Salaam Land Division and in the case of Bishopsgate
Motor Finance Corporation Ltd versus Transport Ltd (1949) 1KB 322.

CRO Vs. URBANIZATION ( Whether ownership will be extinguished)

Whether an area acquired under customary can be extinguished if an area

declared as urban land, in the case of Methusela Paul Nyagwaswa vs
Christopher Mbote Nyirabu- Civil Appeal No. 14 of 1985 Dar – es Salaam (
unreported case) Mr Maira held that a deemed right of occupancy held by
virtue of native law and custom is not extinguished upon an area beging
declare as planning area .

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PROVING HAND WRITING OF A PERSON

Section 47 of the Evidence Act provides for the three modes of proof
handwriting of persons and such modes including the following.

i. Opinions of handwriting expert.

ii. Evidence of persons who are familiar with the writing of a person who is
said to have written a particular writing section 49 of the Evidence Act.
iii. Comparison by the court with a writing made in the presence of the court
or admitted or proved to be writing or signature of the person. This bases
upheld in the decision of the case of Thabit Muhondwa Vs Mwango
Ramadhani Maundo And Rehema Abdallah Mussa, Civil Appel No. 28 of
2012, where by courts held that there is no legal bar to the judge using his
own eyes to compare disputed signature with admitted signatures even
without the aid of any evidence of any handwriting expert

PRELIMINARY OBJECTION

In the case of MUKISA BISCUIT MANUFACTURING [Link] vs WEST END

DISTRIBUTORS LTD [1969] 1 E.A 696, at page 100 court held that, A preliminary
objection is in the nature of what used to be a demurrer. It raises a pure point of
law which is argued on the assumption that all the facts pleaded by the other
side are correct. Sir Charles Newbold P and other Justices in this case
precedented that, preliminary point of objection must be on pure point of law
which requires no evidence to back it up

The Board Of Trustee Of Good Neighbors Tanzania V. Doreen Augustine Dominic

T/A Dawson’s Water Point Drilling, Commercial Case No. 69 Of 2019, The Court
was of the view that, “as regards to the second point of preliminary objection, it
is my settled view that the same is not a pure point of law since it requires

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evidence to prove it” “the position of law on preliminary objection is well known
that a point a point of preliminary objection has to be pure point of law which
do not require evidence to prove it” pg. 7

In Hotels And Lodges (T) Limited V. The Attorney General (Ii) Chapwani Hotels
Limited, Civil Appeal No.27 Of 2013, Cat (Unreported) “Pure point of law must
be elicited from what has been pleaded or must be implied from reading
pleadings. The parameters for determination of pure points of law…are
restricted within the confines of the pleadings.”

In Mwananchi Insurance Company Ltd Vs. The Commissioner For Insurance,

Misc. Commercial Cause No.2/2016 Hc(unreported) p.4-5 Mwambegele,J.
when quoting the case of The Soitsambu Village Council vs. Tanzania Breweries
and Another, Civ. Appeal No. 105/2011 (CA), The Court of Appeal held that;
“Where a Court is to investigate facts, such an issue cannot be raised as
preliminary objection on point of law…It treats a s a preliminary only those points
that are pure law, unstained by facts or evidence..”

The Judge then concluded as follows: “To me, all these are matters that may
be proved by facts; requiring evidence to establish and therefore disqualifying
this point as a preliminary point of law in the light of Mukisa case”
Hence the Judge overruled the objection and held that, the objection was
none of the issue that can be raised as point of law since it needs investigation
by evidence to be established.

Jurisdiction

The issue of Jurisdiction can be raised at any time. This was ordered in the Court
of Appeal case of Tanzania-China Friendship Textile [Link] v. Our Lady of the

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Usambara Sisters [2006] TLR 70. Where Kaji,J.A under page.76 provided that
“Admittedly, this issue was not raised before the trial Court. But since it is about
jurisdiction of the Court, it can be raised at any stage even before this Court”

In RSA Limited Vs Hanspaul Automechs Limited and Another, Civil Appeal No.
179 of 2016 (unreported) CAT at Dar es Salaam. Court of Appeal provided that
“It is settled law that, an objection on a point of law challenging the jurisdiction
of the court can be raised at any stage…” at page 12

Improper rising of preliminary objection

In Mukisa Biscuits Manufacturing Co. Limited Vs West End Products Limited [1969]
EA 696 at page 701 “The improper rising of points of preliminary objections does
nothing but unnecessarily increases costs and, on occasions, confuses issues. This
improper practice should stop. This above case has been cited at page 8 in
Jacqueline Jonathan and Another Vs Gausal Properties Limited. Civil Appeal No.
311 of 2022 (unreported) CAT at Dar es Salaam.

Omission to cite a provision in a notice of P.O

In Mbeya-Rukwa Auto Parts & Transport Limited Vs Jestina George Mwakyoma

[2003] T.L.R 251. “Omission to cite the provision under which a notice of
objection brought is not fatal.”

Priority in determination of preliminary objection

In Salimin Ali Jaffar Vs Fatma Tangawizi Ngura and Another, Civil Appeal No. 299
of 2019 (unreported) CAT at Zanzibar. Court of Appeal provide that “In Shadida
Abdul Hassanal Kassam Vs Mahedi Mohamed Gulam Kanji, Civil Application No.

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42 of 1999 (unreported), the Court emphasized that where a preliminary
objection is raised, it should be heard first before the disposal of the matter on
merits.” At page 8 and 9

LOCUS STANDI- Board Resolution

In number of cases, the issues of Board Resolution has been raised as preliminary
objection as the point of law falling under locus standi; In the Kenyan case of
Directline Assurance Company Limited v. Tomson Ondimu [2019] eKLR, the Court
referred the case of East African Portland Cement Ltd v. Capital Markets
Authority & 4 Others [2014] eKLR and Affordable Homes Africa Limited v. Ian
Henderson & 2 others HCCC No. 524 of 2004, the court had the following
observation.

“That as an artificial body, a company can take decisions only through the
agency of its organs, the Board of Directors and the shareholders; and that
where a company‟s powers of management are, by the articles, vested in the
Board of Directors, the general meeting cannot interfere in the exercise of those
powers…The upshot of these considerations is that in the absence of board
resolution sanctioning the commencement of this action by the company, the
company is not before the court at all. For that reason, the preliminary objection
succeeds and the action must be struck out with costs, such costs to be borne
by the Advocates for the plaintiff”

“…as an Advocate and an officer of the court, the counsel responsible for the
filling of this petition was fully aware, or should have been aware, of the
requirements of the law with regard to the filling of suits by companies, and had
a duty to advice his clients(s) not to file proceedings if there was no or no clear
authority to do so…”

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This is the same to the cooperative societies cases. As provided under
Regulation, 83(3) of The cooperative societies Regulation, 2015, [Link].272 of
2015 that, failure to attach the copy of the resolution clearly attracts the suit
being strucked out with costs.

Board resolution and Preliminary objection.

There was two schools of thoughts regarding to whether the issue of Board
resolution is mandatory and whether can be raised as preliminary objection or
not. Those who affirmed said, Resolution of the board of directors is good to be
raised as Preliminary Objection since it is LOCUS STANDI issue, while other
disapproved, as follows;

In St. Bernard’s Hospital Company Ltd v. Dr. Linus Chuwa, H.C at DSM
Commercial case No.57 of 2004 (unreported) where it was stated as that:

“…Having carefully considered the matter, I have reached a settled conclusion

that indeed the pleading (plaint) should expressly reflect that there is a
resolution authorizing the filling of an action. A company which does not do so
in its pleading risk itself to the dangers of being of being faced by an
unsurmountable preliminary objection as it the one at hand…the resolution
should be of a general rule, that is, it is not necessary that particular firm or
person be specifically appointed to do the task. It suffices if the resolution
empowers the company management to take the necessary action” Also in
Evarist Steven Swai and Another v. The Registered trustee of Chama cha
Mapinduzi and 2 others, Land case no.147 of 2018. H.C at DSM. Preliminary
objection raised regarding to Board resolution was sustained.

No P.O on existence or non-existence of Resolution of The Board Of Directors

Further, on other view, they opine that, preliminary objection cannot be raised
as preliminary abjection since it demands evidence to prove it. In the case of

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Tandahimba Newala Cooperative Union (TANECU) Ltd v. Chikundi Holdings (T)
Ltd, Civil Case No.8 of 2019. H.C Mtwara, Dyansobera,J viewed that, the issue of
board resolution cannot be raised as preliminary objection because it demands
evidence to back it up.

In A ONE PRODUCTS AND BOTTLERS LIMITED v. Boge Kompressoren Otto Boge

Gmbh & Co Kg, Civil case No. 36 of 2019. DE-MELLO,J. Pointed clearly that, she is
aware of the two contradicting school of thoughts as far as Resolution of Board
of Directors is concerned, as first school of thought stipulated in Resolute
Tanzania Limited v. LTA Construction (Tanzania) Limited & 3others, commercial
case No. 39 of 2012, where the High Court Judge seems not interested on the
requirement of Resolution of Board of Directors before the company sues, also
DE-MELLO,J cited the case of Plasco Ltd v. Efaham Ltd & Another, Commercial
case No. 60 of 2012 where the Court similarly departed from the requirement of
Resolution of Board of Directors before institution of suit. pg7

In Mwananchi Insurance Company LTD Vs The Commissioner for Insurance,Misc.

Commercial cause No.2 of 2016 Mwambegele, J while facing similar assertions
on the authority to commence suits on behalf of corporate persons, had this to
rule out;

“I have heard the learned contending views by counsel for both parties with
keen interest and I must say out rightly that this kind of preliminary is no longer in
the list of hard issues neither a topical one to deserve consumption of the court‟s
precious time. As such, I will not be detained much by it ”Also pointed out that,
there is no need to make resolution of Board of Directors before commencing a
legal action.

In Chama cha Wafanyakazi Mahotelini na Mikahawa Zanzibar (HORAU) Vs

Kaimu Mrajis wa Vyama vya Wafanyakazi na Waajiri Zanzibar, Civil Appeal No.

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300 of 2019 (unreported) CAT at Zanzibar Court of Appeal provided that “It has
to be understood at the outset that, locus standi is a common law principle
which provides that, only a person whose right or interest has been interfered
with by another person has a right to bring his claim to court against that other
person…” At page 11

CURRENTLY
And, followed by multiple conflicting decisions of the High Court on the
requirement of the company to institute a proceeding after Board Resolution,
the recent decision of the Court of Appeal in Simba Papers Convertes Limited v.
Packaging and Stationery Manufacturers Limited and Another, Civil Appeal
No.280 of 2017, CAT at DSM (unreported), the court among the many settled the
issue on authority of the company to institute the suit without Board Resolution,
and precedented that;
“What is required is not specific resolution but a general permission. Secondly, a
resolution would be necessary where the suit involves a dispute between a
company and one of its shareholders or directors” pg. 17 [Emphasis added]

The court supra referred the decisions in Bugerere Coffee Growers Ltd v.
Sebaduka and another [1970] 1 EA 147 and in St. Bernard’s Hospital Company
Ltd v. Dr. Linus Chuwa, H.C at DSM Commercial case No.57 of 2004 (unreported),
to the extent that, resolution of the Board of Directors applies to the institution of
a suit between a company and one or more of its shareholders or directors.

FAILURE TO FILE COUNTER AFFIDAVIT

Court orders must be respected and duly complied With; otherwise would
create chaos and lead to untimely dispensation of justice, refer the case of
Tanzania Breweries Ltd v. Edson Dhobe & 19 Others, Misc. Civil Application No.96
of [Link] @DSM (Unreported) pg.1

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It is trite law that, failure to file C/A, it‟s taken that he does not dispute the
contents of the Applicant‟s affidavit. Refer the case of Finn Von Wurden
Petersen & Another v. Arusha District Council, Civil Application No.562/17 of 2017
CAT(Unreported) at page 2-3 citing the case of Yokobeti Simon Sanga v.
Yohana Sanga, Civil Application No.1/2011 CAT (Unreported). Viewed that
“From the foregoing, I wish to prefer my deliberation by stating that it settled
that where the respondent does not lodge an affidavit in reply despite being
served, it is taken that he does not dispute the contents of the Applicant‟s
affidavit”
See further Fatuma Ally Mohamed v. Mohamed Salehe, Misc. Ladn Application
No.365 of 2019. HC @DSM (unreported) pg.3 “The position of law on the file to
failure a counter affidavit is settled. The respondent is deemed to have not
contested the factuality of the affidavit”

ADMINISTATOR ESTATE CAN REPRESENT DECEASE IN THE COURT ONLY WITH

APPLICATION. ( In court of appeal)

In the case of Saidi Ibrahim Vs. Melembuki Kitasho, Civil Application No. 5 of
2014, (unreported) the Court of Appeal of Tanzania at Arusha held that the
administrator of estate must make formal application in court so that he is made
a party to the proceedings in place of the deceased, the position also provided
under Rule 57(3) of the Court of Appeal Rules, 2009 the section provides that a
civil application shall not abate on the death of the applicant or the respondent
but the court shall, on the application of any interested person, course the legal
representative of the deceased to be made a part in place of the deceased”

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ADMINISTRATOR OF ESTATE

Powers of administrator of estate rise upon appointment

In the case of Ndamo Kulwa Vs Salum Mihangwa, Land Appeal No. 30 of

2011,(Unreported)H.C held that, following death of a person, no person other
than the person granted probate or letter of administration has power to sue or
prosecute any suit or otherwise act as a representative of the deceased. The
same provision concurred in section 71 of the Probate and Administration of
Estate Act, Cap 352 [ R. E 2019]

In Majuto Juma Nshahuzi Vs. Issa Juma Nshahuzi Pc Civil Appeal No. 9 of 2014,
Court held that duty of the administrator is to collect and distribute the estate to
his lawfully heirs it is upon appointment that an administrator can have locus
stand to institute a suit to recover land of a deceased or any property.

Limitation of time for the application of letters of administration

The probate and Administration of Estate Act, does not provide it, but the Law
of Limitation Act under Item 21 of part III provides that application for which no
period of limitation is provided in any other law the period of time is 60 days, that
is from the death of the deceased.

RIGHT TO BE HEARD/ FREEDOM OF RELIGION AND ITS GUIDING PRINCIPLE

In the case of Hamis Rajabu Dibagula Vs Republic, criminal Appeal; Samatta

CJ, Mroso J.A . In this case the appellant contravene with the provision of
section 129 of Penal Code by an offence of mis demeanor, by saying that “Yesu
sio mwana wa Mungu ni mtu wa kawaida tu” in trial court found guilty and

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convicted, thereafter on appeal to the high court, the court heard the
prosecution side only and concur with the decision of trial court

In appeal the appellant appealed on ground that they were denied right to be
heard, court held that;

„the right to be heard is provided under Article 13(6)a of the Constitution and
that denial of right to be heard is fatal error, and that right to be heard has been
commented upon by many eminent judges over the centuries nearly three
countries ago in case of R vs University of Cambridge, 1723 and in the case of
John vs. Rees And Others [ 1969] 2 ALL ER 274, vortescue J held that

“The law of God and man both give the party an opportunity to make his
defense, if he has any remember to have heard it is observed by a very learned
man upon such an occasion that even God himself did not pass sentence upon
Adam before he was called upon to make his defense.”

In I.P.T.L Vs Standard Chartered Bank, Civil Revision No. 2009 (unreported) as

cited in the recent case of Tabu Ramadhani Mattaka Vs Fauzia Harubi Saidi
Mgaya, Civil Appeal No. 456 of 2020 (unreported0 CAT at Dar es Salaam. “No
decision must be made by any court of justice/body or authority entrusted with
the power to determine rights and duties so as to adversely affect the interests
of any person without first giving him a hearing according to the principles of
natural justice.”

In Tanga Gas Distributors Limited Vs Mohamed Salim Said and Two Others, Civil
Application No. 68 of 2011, the court provided the effect of non-adherence of
the right to be heard, that “Settled law is to the effect that, its breach or
violation, unless expressly or impliedly authorized by law, renders the

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proceedings and decisions and/or orders made therein a nullity even if the
same decision would have been reached had the party been heard.”

OMISSION TO FRAME ISSUES

In the case of Twazihirwa Abraham Mgema Vs James Christian Basil, Civil

Appeal No. 229 of 2018 (unreported) CAT at Dar es Salaam at page 6 the court
provided that “It is trite law that, omission to frame issues is fatal it leads to
miscarriage of justice.”

Parties to be bound and guided by issues raised

In Said Mohamed Said Vs Muhusin Amiri and Another, Civil Appeal No. 110 of
2020 (unreported) CAT at Dar es Salaam court viewed that “As issues are
material propositions of fact or law by one party and denied by the other in their
respective pleadings, parties are expected to lead evidence proving or
disproving certain facts according to the issues drawn. Issues guide parties in
their litigation.” At page 6.

REQUIRENMENT OF CAVEAT TO BE ATTESTED AND NOT AFFIRMED

Caveat needs only to be attested, it does not need to be sworn or affirmed-

and where as to attest document is to be a witness or to authenticate it by
signing as a witness, and this provided under Form No. 62 and rule 82(1) of the
Probate Rules.

The same has been provided in the case of Revenanth Eliawory Meena Vs
Albert Eliawory Meena and Another, Civil Revision No. 1 of 2017 CAT at ARUSHA
(unreported) at page 13

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OVERRIDING OBJECTIVE PRINCIPLE / OXYGEN PRINCIPLE

In the case of Yakobo Magoiga Kichere Vs Peninah Yusuph, Civl Appeal No. 55
of 2017, CAT at Mwanza. The principle require court to deals with cases justly,
speedily and to have regard to substantive justice. The principle also tries to
avoid prioritization of procedural technicalities in the process of justice
administration.

MEANING OF PUBLIC SERVANT

Person works under parastatal organization do not fall under public servant.

In the case of Salehe Komba And Revocatus Rukonge Vs Tanzania Posts

Corporation, Labour Revision, H.C @ MWANZA.

Court held that to qualify as a public servant, one must be either charged with
formulation of Government policy or delivery of public service, and meaning of
public servant as provided under section 3 of Public Service Act, Cap 298 of
2019 are those whose functions are directly under the government.

And those employees who work under parastatal organization do not fall under
the public servant, hence those employees who work on parastatal
organization if they have dispute then the commission for mediation have
jurisdiction to entertain their matters.

CORPORATE

If a company or bodies that is not a legal person sues then the suits is
incompetent cases.

In the case of Tossi Byategi Vs Tanzania Harbours Authority And Another, Civil
Application No. 164 of 2006, Court held that it is settled that a suit or an

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application having wrong or non-existing parties renders a suit or application
incompetent.

Also in the case of Jumanne Gaudence And Four Other Vs. Meneja Shirika La
Posta, H.C at Kigoma Labour Division, Revision No. 10 of 2018, whereby in this
case the applicant sued the respondent on the name of „ MENEJA SHIRIKA LA
POSTA‟ court held that if a legal person sued in other name than incorporated
one then such improper name does not make it a person in law.

Furthermore court held that section 3(1) of the Tanzania Posts Corporation Act
the corporation incorporated by the name of Tanzania Post Corporation, hence
any proceeding must be done by this name only.

Pleadings of companies have to be verified by the secretary or director of the

company

Order 28, rule 1 of the Civil Procedure states that pleadings of a company in a
suit may be verified by the secretary or the director or any other principal officer
of the corporation who is able to depose to the facts of the case, and that the
identity of the post held by such principal officer in the company must be
specified if such officer is neither secretary nor director his position in the
company must be specified. It is not enough just to say that verifying person is a
principal officer of the company able to depose to the facts of the case.

Lifting corporate veil

In the case of Harel Mallac Tanzania Limited Vs. Junaco (T) Limited and Justin
Lambert. Misc. commercial Application No. 144 of 2016. Lifting corporate veil
by want to arrest the judgment debtor, The applicant must prove that the

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judgment debtor has dishonestly and fraudulent done activities in relation to his
company duties.

CORPORATIVE SOCIETIES

Jurisdiction and settlement of dispute

The Cooperative Societies Regulations, 2015 G/N No. 272 of 2015, particulary
Regulation 83(1) .Regulation 83(1) provides “Any dispute concerning the
business of the cooperative society or person claiming through them or
between a member or person claiming and the board or officer or between
one cooperative society and another shall be amicably settled through
negation or reconciliation”

The provision is couched in mandatory terms, as per Section 53(2) of The

Interpretation of Laws Act, Cap 1 R.E 2019.

Section 53(2) “Where in a written law the word "shall" is used in conferring a
function, such word shall be interpreted to mean that the function so conferred
must be performed”

In the case of Wadoki Saccos Ltd v. David Mseti and 2 others, Civil Appeal No.58
of 2020 (unreported) H.C at Mwanza. The Court in page 12 affirmed the decision
held in Uzinza SACCOS Limited v. Emmanel Shigongo and Others, Misc. Civil
Appeal No.1 of 2010 in which it was held that “jurisdiction in normal Courts in
relation to disputes of cooperative societies and its members is ousted by the
provision of the law.”

The Court went further in page 13 that “question of jurisdiction for any court is
basic”

In Ladislaus Mashauri Mshana v. Mashima SACCOS ltd and another, Land Case
Appeal No.16 of 2018 (unreported) H.C at MOSHI. The court in page 5-6 ordered

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that “it is clear that any dispute by any person through cooperative society not
necessarily a member shall be settled through negations or reconciliation”

In the case of Asha Iddi v. Babati SACCOS Ltd and another, Civil Appeal No.30
of 2019.(unreported) H.C at Arusha. The Court in page 6 ordered that There is no
dispute that cooperative societies are governed by the cooperative Societies
Act and the Regulations made thereunder and that upon disputes normal
courts are ousted its jurisdiction. That a dispute if a person is not a member will
be referred to reconciliation or negation.

Not only in cooperative societies, the issue of proper forum for institution or
lodging complaints and utilization of local remedies is crucial as referred in the
case of Petronila d/o Mbunda v. Elizabeth d/o Millanzi, P.C Criminal Appeal
No.01 of 2019(unreported) H.C at Mtwara while settling the matter of misuse of
mobile phones ordered that, TCRA was responsible to receive a complain the
court appreciated that some cases are peculiar they bare specific forums and
mechanisms to settle disputes.

LIMITATION OF TIME

Remedy for the Time barred case is to dismiss it.

In the case of Hezron Nyachiya vs. Tanzania Union Of Industrial Commercial

Workers And Another, Court of Appeal, No. 79 of 2001 ( Unreported). Court held
that the remedy for a time barred matter is non, other than dismissing the case.
Reading together with section 3(1) of The Law of Limitation Act.

Delaying of an application before the court of law due to the lack of legal
assistance is not acceptable

In the case of Ally Kinanda And Silvano Henry, And Abubakar Jamla Vs
Republic, Criminal Appeal No 1 of 2016) CAT @ Dodoma. In this case the

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appellants failed apply for review on ground that they lack legal assistance
while they were in prison. Court held that cause of delay relied upon by the
applicants that they did not have legal assistance is not acceptable.

Also court inter-alia concurred with decision in the Ngao Godwin Losero Vs
Julius Mwarabu, Civil Appeal No 10 of 2015 ( unreported) court held that „
“ignorance of law has never featured as good cause for extension of time”

On the same mind court concurred with decision provided in case of Bariki
Israel Vs Republic,Criminal Application No. 3 of 2011. Court held that, a diligent
and prudent party who is not properly seized of the applicable procedure will
always ask to be appraised of it or otherwise will have nothing to offer as an
excuse for sloppiness

BREACH OF CONTRACT-compensation as remedies

Section 73(1)1 of the LCA provides that when a contract has been broken, the
party who suffers by such broken is entitled to receive, from the party who has
broken the contract compensation for any loss or damage to him

On the same mind In the case of As Sajan Vs Cooperative And Rural

Development Banck (19991) T.L.R 44, court held that is cardinal principle in
awarding damages is „ restitution in integrum‟ the law will endeavor so far as
can do it, to place the injured person in the same situation as if the contract had
been performed.

RES JUDICATA

In the case of Peniel Lotta Vs Gabriel Tanaki And Others, Civil Appeal No. 61 of
1999 in the CAT @ Arusha, court held that res- judicata is provided under section

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9 of the Civil Procedure the provision bar multiplicity of the suits and guarantee
finality to litigation and provides the following ground of res- judicata.

i. The matter directly and substantially in issue in the subsequent suit must
have been directly and substantially in issue in the former suit.
ii. The former suit must have been between the same parties
iii. The parties must have litigated under the same title in the former suit
iv. The court which hear the matter must be competent court
v. The matter in issue must have been heard and finally decided in the
former suit.
In the case of Pravin Girdhar Chavda Vs Yasmin Nurdin Yusufali, Civil Appeal
No. 165 of 2015 (unreported) CAT at Dar es Salaam court at page 13 provided
that “…we bear in mind the famous words of Lord Shaw Haystead Vs
Commissioner of Taxation [1926] A.C 155 at page 166 while discussing the
common law principle of estoppel per rem judicatum or res judicata and in
which this Court has always sought inspiration: “Parties are not permitted to
begin fresh litigation because of new views they may entertain of the law of the
case or new versions which they present as to what should be a proper
apprehension, by the court of the legal result. If this were permitted, litigation
would have no end…”

Also in Jebra Kambole Vs Attorney General, Civil Appeal No. 236 of 2019
(unreported) CAT at Dar es Salaam “The doctrine of res judicata is also there to
ensure certainty in the administration of justice.” At page 24

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PLEADINGS

Function of pleading- is to give notice of the case to the party and that, the
opponent will not be taken by surprise

In the case of James Funke Gwagilo Vs Attorney General, Civil Appeal No. 67 of
2001, CAT at Dar es Salaam. The Court held that, the pleadings have to identify
with clarity the matters on which the parties differ and the positions on which
they agree on the issues on which the court will be called upon to determine
the matter in dispute. But if a party need to add new issue in pleadings then he
have to apply for amendment and not to rise new issue; this was also upheld in
the case of Blay Vs Pollard And Morris (1939) 1 KB 628, 634, scrutton LJ held that
“Cases must be decided on the issue on record, and if it is desired to raise other
issue they must apply for amendment”

Verification in the Pleadings

It is the requirement of the law under Order VI Rule 15 (3) of the Civil Procedure
Code [Cap 33 R.E 2019] concerning verification in all pleadings that;

“The verification shall be signed by the person making it and

shall state the date on which and place at which it was signed”
[Emphasis added]
The provision has been couched in mandatory terms, as per Section 53(2) of The
Interpretation of Laws Act, [Cap 1 R.E 2020], to mean stating date and place at
which pleading was verified is not discretional.
Further, followed by the invocation of the Overriding objective principle under
Section 3A and 3B of The CPC, The principle requires courts to deal with cases
justly, speedily and to have regard to substantive justice. The principle also tries
to avoid prioritization of procedural technicalities in the process of justice
administration.

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In this matter there is also two contradicting schools of thoughts, where different
authors and judicial decisions provided different opinions;

In the case of Anatol Peter Rwebangira Vs The Principal Secretary, Ministry Of

Defence And National Service And Hon. AG, Civil Appeal No 548/4 of 2018,
Court of Appeal of Tanzania at Bukoba. In this case the appellant raised
preliminary objection in respect with notice of motion and affidavit of the
respondent which did not disclose the sources of information by the deponent
then court held that “A deponent in the verification clause of an affidavit is
required to specify the paragraph he/she has verified to be true to his
knowledge or belief or information which he receive from other source”

In the same mind court concurred with the decision held in the case of Salima
Vuai Foum Vs Registrar Of Cooperative And Three Other, TLR [ 1995] whereby
court held that “where an affidavit is made on information it should not be
acted upon by any court unless the sources of information are specified”

And in the case of Director Of Public Prosecution Vs Dodoli Kapufi And Patson
Tusalile, Criminal Application No 11 of 2018 ( unreported) court defines
verification clause that has to shows the facts the deponents asserts to be true
of his own knowledge and or those based on information or beliefs.

In Philip Anania Masasi v. Returning Officer Njombe North Constituency and 2

Others, Misc, Civil Cause No. 07 of 1995 (unreported) SAMATTA,J.K (as he then
was) viewed that “As I apprehend the law, want of, or defects in, verification
does not make pleading void; It is a mere irregularity, which is curable by
amendment” The court referred the decision in Sushil Kumar Sen v. State of
Bihar, A.I.R 1975 SC 1185 at page 1187 that “the wages of procedural sin should
never be death of rights”

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In Roba General Mechants v. The Director General Tanzania Harbours Authority
and 2 Others, Misc. Civil case No.161 of 2004, H.C at DSM (Unreported)
[Link],J ordered that “…It is not appropriate to order for amendment of
the pleading. The appropriate thing to do is to dismiss it”

In Tanzania Community Development Alliance (TACODA) v. Jumuka General

Suppliesd, Land Case No.23 of 2017. H.C @Arusha (unreported) MAIGE,J.
provided that “The Omission to date the verification clause and omission to
indicate place of verification is a minor defect which can be curable by way of
amendment without occasioning any failure of justice. I am, in this my finding,
armed with the authority of the predecessor of the Court of Appeal in among
other, Hirji v. Alibhah [1974] E.S 314”pg.3

Also in Jacqueline Ntutabaliwe Mengi & 2 Others, Misc. Civil Application No.286
of 2019 H.C at DSM(unreported) court provided the same .pg.36-40

In Nyusta Peter Kabezi T/A Nyudiah Enterprises v. Herodius Sulus Mborowe T/A
Nyudiah Enterprises and 3 Others, Civil Case No.153 of 2019. DE-MELLO in page 8
ordered that “Want of signature(s) or verification or any defects, does not
render pleading void for the court to struck out or dismiss”

According to MULLA, The Code of Civil Procedure, 16th Edition , Volume II at

page 1181 provides “Pleading which is not verified in the manner required by
this rule may be verified at later stage of the suit; omission to verify a pleading is
a mere irregularity”

In Associate Gold Mining Company ltd v. Universal N.L, Commercial Cause

No.24 of 200, the court invoked the overriding objective principle to order an
amendment of the pleading.

Some Court of Appeal cases has these views on defects to the verification. In
the case of Diamond Motors Limited v. K-Group (T) Limited, Civil Appeal No.50 of

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2019,CAT at DSM (unreported) the Court determined the preliminary objection
raised wit “the plaint is defective for, it is not dated and the verification clause is
neither dated nor indicates the place where it is signed”, the court provided
that;
“we are in agreement with Dr. Kyauke that, booth were not
dated or indicated the place where the verification clause was
signed. However, we are of the decided view that, the
omission is not fatal. We are of this view because the plaint and
verification clause are all stamped with the respondent‟s
official seal containing the Dar es salaam address. We
therefore find that they were signed in Dar es salaam…we find
this omission not fatal as no any injustice occasioned to the
parties” pg.14-15 [Emphasis added]

Bearing in mind that, in the above case, CAT was of the affirmed view that the
omission is not fatal, and agreed to proceed with determination because it was
alternatively stamped with the official seal of the company which shows the
place it was verified. In this regard, what if it was not stamped? Or what if
verification was by natural person and omitted to state date and place of
verification?

The question can be answered in the case of Tanzania Community Development

Alliance (TACODA) v. Jumuka General Suppliesd, Land Case No.23 of 2017. H.C
@Arusha (unreported) MAIGE,J. provided that;
“The Omission to date the verification clause and omission to
indicate place of verification is a minor defect which can be
curable by way of amendment without occasioning any failure
of justice. I am, in this my finding, armed with the authority of

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 the predecessor of the Court of Appeal in among other, Hirji v.
Alibhah [1974] E.S 314”pg.3 [Emphasis added]

In Nyusta Peter Kabezi T/A Nyudiah Enterprises v. Herodius Sulus Mborowe T/A
Nyudiah Enterprises and 3 Others, Civil Case No.153 of 2019, (unreported) DE-
MELLO was of the view that;
“Want of signature(s) or verification or any defects, does not
render pleading void for the court to struck out or dismiss. The
anomaly to me does not go to the root of the matter and, can,
through the oxygen principle be cured. Based on the discretion
bestowed on me, judiciously exercised I order the amendment
of The Written Statement of defence…within Seven (7) days”
pg.8 [Emphasis added]

In Jacqueline Ntuyabaliwe Mengi & 2 Others, Misc. Civil Application No.286 of

2019 H.C at DSM (unreported), the court among the many provided that;
“want of, or defects in verification does not render the
verification void, and is treated as mere irregularity curable by
amendment, and when amended, the plaint must be taken to
have been presented on the date on which it was
amended”pg30-40

In the Court of Appeal case of Sanyou Service Station Ltd vs. BP Tanzania Ltd (
Now PUMA Energy (T) Ltd, Civil Application No.185/17 of 2018, CAT at DSM, the
court was of the view that “In digression, I need to have it noted that in the
University of Dar es salaam case (supra) the court was dealing with a situation
worse than the present, because in that case there was no verification clause at
all. So, In DDL Invest (supra) the following passage was reproduced from the
University of Dar es salaam (supra):-
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 “Bearing in mind what was stated by the Court in Salim Vuai
Foum’s case (supra), it would appear that a court has discretion
to allow a deponent of an affidavit lacking verification clause to
amend the affidavit. I take it, that by using the word „amend‟,
this court meant that the deponent can, if circumstances justify
it, grant leave to the deponent to file an affidavit having a
verification clause” page 10
In Sanyou Service Station Ltd (supra) the court stressed and continued that “I
wish to emphasize that from the foregoing, it can safely be concluded that the
court‟s power to grant leave to a deponent to amend a defective affidavit, are
discretionary and wide enough to cover a situation where a preliminary
objection has been raised and even where the affidavit has no verification
clause. Undoubtedly, as the advent of the overriding objective rule introduced
by the Written Laws (Misc. Amendments) (No.3), Act, 2018, the need of
exercising the discretion is all the more relevant.” Page 10

The court conclude by saying “True, rules of procedure should be followed as

rightly submitted by Mr. Rwazo, but not without some sense of reasoning and
justice”
Consequently the preliminary objection overruled and the affidavit ordered to
be amended so as to cure the defects.

Moreover, in Diamond Motors Limited v. K-Group (T) Limited, Civil Appeal No.50
of 2019,CAT at DSM (unreported), the court at page 14-15 among the many
provided the defects in the verification are curable since no any injustice
occasioned. We can align this finding with the case of Dickson Kamala v.
Republic, Criminal Appeal No.442 of 2018, CAT at DSM (Unreported), where the
court of Appeal viewed that “in every procedural irregularity the crucial
question is whether it has occasioned a miscarriage of justice”

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AFFIDAVIT

In Attorney General Vs Dickon Paulo Sanga, Civil Appeal No. 175 of 2020
(unreported) CAT at Dar es Salaam At page 34. “Since an affidavit is a substitute
to oral evidence, it should only contain statements of facts based on
deponent‟s actual knowledge or information received and it should not contain
extraneous matters. Where an affidavit is made on information, it should not be
acted upon by any court unless the sources of such information are specified.”

In Salima Vuai Foum Vs Registrar of Cooperatives Societies & 3 Others, [1995]

T.L.R 75. Court provided that “The principle is that where an affidavit is made on
information, it should not be acted upon by any court unless the sources of the
information are specified.”

In Director of Public Prosecutions Vs Dodali Kapufi and Another, Criminal

Application No. 11 of 2008 (unreported) CAT at Dar es Salaam At page 3, court
provided that;

i. The essential ingredients of any valid affidavit, therefore, have always

been:-
ii. The statement or declaration of facts, etc, by the deponent;
iii. A verification clause;
iv. A jurat; and
v. The signature of the deponent and the person who in law is authorized
either to administer the oath or to accept the affirmation. The verification
clause simply shows the facts the deponent asserts to be true of his own
knowledge and/or those based on information beliefs.”

Also the same case of Director of Public Prosecutions Vs Dodali Kapufi and
Another, Criminal Application No. 11 of 2008 (unreported) CAT at Dar es Salaam
provided the meaning of the word “jurat” to mean “The word „jurat‟ has its
origin in the latin word „jurare‟ which means „to swear‟. In its brevity a jurat is a
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certification added to an affidavit or deposition stating when, where and before
what authority (whom) the affidavit was made.” At page 3

Defective affidavit

In Mohamed I.A. Abdulhussein vs Pita Kempap [2005] T.L.R 383, court viewed
that “An affidavit which does not state, in the jurat of attestation, the place
where it was taken is defective.”

Refer the wisdom of Hon. Justice Mwenepazi,J in the case of Eliesikia Emmanuel
Mgonja v. Fikimini Stepheno Mbugu, Reported in the Neutral Media Citation
[2022] TZHC 10596, On the issue of defects in jurat of attestation. Hon. Justice
Mwenepazi, J was of the strong view that,
“It is not clear whether the appellant was known to the
commissioner for oaths or was identified to him. It is ambiguous. I
have the view, it would be clear if the “striking through” would
have been made in the words “introduced to me by”. Page 5
The court went further that;
“The defect is fatal and goes to the root of the case to the extent
of not being remedied by an overriding objective” page 6

Hon. Justice Mwenepazi,J was of the further strong affirmation in the cited
authorities as far as jurat of attestation is concerned in Waziri Bukuku v. Halima
kondo, Misc Land Case Application No.911 of 2018 on the observation that;
“…an affidavit is evidence on oath; therefore, it has to be stated
fully in the jurat of attestation as to whether the Commissioner for
Oaths knew the deponent or the deponent was identified to him
for the purpose of commitment. Failure to indicate such an
important statement in the jurat of attestation renders an affidavit
incurably defective for the lack of disclosure of the identity of the
deponent”

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And in Nelson Mwankenya v. Mbawala David, Misc. Land Application No.65 of
2018, that;
“the courts must indeed be certain that it was in fact, the
deponent mentioned in the jurat, and not any other person, who
took the oath before the commissioner . This stating clearly that, he
either knew the deponent personally or that, the deponent was
introduced to him (commissioner) by a person known to him
(commissioner) personally. The rationale of the provisions of the law
affidavits are vital in law, they take place oral evidence”

IDENTIFICATION OF ACCUSED

Identification of accused by the voice and giving evidence by unsworn

statement

In the case of Abdalah Ahmadi Likunja v. Republic, Criminal Appeal No 120 of

2018 CAT at Mtwara, Mwandambo J.A. in this case the appellant raped a child
of 12 years, the victim identified the appellant by his voice and she made
unsworn testimonies, when the appellant appealed on ground of improper
identification and unsworn testimonies.

Court held that; the appellant was identified properly by the victim by his voice
when he ordered the victim to sketch her legs; also court held that unsworn
testimonies can be provided when you did not understand the meaning of the
oath

ABANDONMENT

Procedure to declare land as abandonment land

Section 45(1) and 4 of the village land Act provides that such procedure have
to be followed if you fail to follow those procedures then declaration of

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abandonment shall be nullity. This has been provided in the case of Abdi M.
Kipoto Vs Chief Arthur Mtoi, Civil case No 75 of 2017, CAT. Mwambegela, J.A
concured with the provision that the declaration and allocation of abandoned
land have to consider all requirements provided under section 45 of the Village
Land Act.

RECENT POSSESSION

Recent possession of property can be applied not only in an offence related to

theft but cannot be applied in murder when the property stolen owned by
deceased.

In the case of Akili Chaniva Vs Republic, Criminal Appeal No. 156 of [Link] at
Mbeya (unreported case) In this case, the deceased died but later on his
motorcycle found under possession of the appellant Akili Chaniva, court
concurred the decision provided in the case of Mniko Gisengi Romara, Richald
Nyaruboti @ Mombi, Magori And Mwita Machage Mwita v. Republic, Criminal
Appeal No. 213 and 214 of 2012 (unreported) court held that, doctrine of recent
possession means that the unexplained possession by an accused pay on of the
fruits of crime recently after it has been committed and is presumptive evidence
against the accused not only on the charge of theft but of any aggravated
crime like murder when there is believe that an offence committed in same
transaction.

LAST PERSON SEEN WITH DECEASED

If an accused person is alleged to have been last person to be seen with the
decease, if there is no plausible explanation to explain circumstance leading to
death then accused presumed to be killer

In the case of Akili Chaniva Vs Republic, Criminal Appeal No. 156 of 2017 CAT at
Mbeya (unreported case) in this case the appellant hired the deceased
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motorcycle and deceased took him but from that day the deceased was not
found until when his dead body found. In concuring with decision provided in
the case of Mathayo Mwalimu And Another Vs Republic, Criminal Appeal No,
147 Of 2008 ( unreported) court held that “If an accused person alleged to
have been the last person to be seen with the decease, in absence of plausible
explanation to explain the circumstances leading to the death he or she will be
presumed to be the killer”

ORAL CONFESSION

Oral confession made by a suspect before witnesses may be sufficient to find

conviction

In the case of DPP Vs Nuru Mohamed Gulamrasul [1989] TLR and Mohamed
Manguku Vs R [ Criminal Appeal No. 194 of 2004] ( unreported) court held that, it
is settled that an oral confession made by a suspect, before or in the presence
of reliable witnesses, be they civilians or not may be sufficient by itself to find
conviction against suspect.

CHARGE

Charge must Cleary show the specific provision of law which have contravined
and if not the whole proceeding regarded as nullity.

In the case of Alex Medard vs Republic, Criminal Appeal No. 571 of 2017, Court
of Appeal of Tanzania at Bukoba ( Mbarouk J.A) in this case the appellant was
charged and convicted with an offence of attempted murder, under section
211 of Penal Code which was fatal for not be specific on whether he
contravene section 211(a) or (b) court held that “Charge must Cleary show the
specific provision of law which contravened, and that the importance of
indicating the specific provision of law contravened is to enable the accused to

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understand the nature of the offence he stands charged and be able to
prepare defence(s) which will guarantee a fair trial”

Being found guilty on a defective charge based on wrong or non-existed

provision of law, denial the fair trial.

In the case of Abdallah Ally v. Republic, Criminal Appeal No. 253 of 2013
(unreported) court held that, “being found guilty on a defective charge, based
on wrong or non-existent provision of law, it cannot be said that the appellant
was fairly tried in court, it Is evident that the appellant did not receive a fair trial
in court.

Charge which did not dis-close any offence in particulars of offence is wrong
and cannot curable

Under section 388 of Criminal Procedure Act. In the case of Isidori Patrices Vs
Republic, Criminal Appeal No. 224 of 2017. Court held that a charge which did
not disclose any offence in particulars of offence is manifestly wrong and
cannot be covered under section 388 of CPA and that an effect of flaw in
charge cannot curable.

SPECIFIC DAMAGES

Special damages must be specifically pleaded and proved by evidence.

In the case of Alfredi Fundi Vs Geled Mango and Managing Director Sandhru
Coach Limited And Others, Civil Appeal No. 49 of 2017, in this case the
appellant got a car accident whereas the said car owned by the second
respondent and first respondent was driver of the said car. The appellant
claimed to suffer both psychological injury and cost for the treatment, but he
failed to prove costs which he incurred for his treatment. Court of Appeal of
Tanzania interalia concurred with the decision provided in the case of Zuberi
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Augustino Vs Anicent Mugabe [ 1992] TLR 137, that “special damages must be
specifically pleaded and proved, by evidence and there must verifiable
evidence to prove that the appellant incurred cost the court further stated that
in respect of medical expenses, the medical expenses should have been
supported by medical receipt”

In Elibariki Kirama and Another Vs John George a.k.a Jimmy, Civil Appeal No.
183 of 2017 (unreported) CAT at Dar es Salaam At page 8 court provided that “It
needs no reminding that specific damages must be specifically pleaded and
strictly proved.”

Abel Malingisi V. Paul Fungameza, P.C civil Appeal No.10 of 2018.H.C @

Shinyanga MDEMU,J viewed that “It is trite law that, for this court to grant
specific damages claimed by the Appellant, there are two conditions which has
to be met. One is that such damages must be specifically pleaded and two that
they must also be specifically proved” pg.7

“the law in specific damages is settled, the said damages must be specifically
pleaded and strictly proved, …the standard required in proving special
damages is higher than on balance of probabilities.” In Reliance Insurance
Company (T) and Two Others Vs Festo Mgomapayo, Civil Appeal No. 23 of 2019
(unreported). The case was cited at page 10 in Geita Gold Mining Limited Vs
Jumanne Mtafuni, Civil Appeal No. 30 of 2019 (unreported) CAT at Mwanza.

GENERAL DAMAGES

General damages awarded under discretion of the court.

In the case of Alfredi Fundi Vs Geled Mango and Managing Director Sandhru
Coach Limited and Other, Civil Appeal No. 49 of 2017. M.S MBAROUK, J.A held
that “general damages are awarded by the judge after consideration and
deliberation on the evidence on record able to justify the award”

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“…the position of the law in regard to an award of general damages is settled.
There is a number of authorities stating that the general damages are normally
awarded at the court‟s discretion and need not to be specifically proved.” In
Reliance Insurance Company (T) and Two Others Vs Festo Mgomapayo, Civil
Appeal No. 23 of 2019 (unreported). The case was cited at page 9 in Geita Gold
Mining Limited Vs Jumanne Mtafuni, Civil Appeal No. 30 of 2019 (unreported)
CAT at Mwanza.

In Niko Insurance (T) Limited Vs Hussein Athumani Mwaifyusi and Another, Civil
Appeal No. 168 of 2017 (unreported) CAT at Dar es Salaam court of Appeal At
page 27 provided that “…that the purpose of general damages, which is to put
the party who has been injured or who has suffered loss in the same position as
he would have been in if had not sustained the wrong for which he is seeking
compensation.”

CITING ENABLING PROVISION IN APPLLICATIONS

Failure to cite enabling provision is NOT FATAL.

In the case of Natal Martin Charles Ltd Vs. Gapco Tanzania Limited, Misc.
Commercial Application No. 23 of 2021 H.C @ DSM

In the case of Muungwana Thabit Vs. The Registered Trustee Of Chama Cha
Mapinduzi, Civil Application No.11 of 2015 CAT @TABORA. “We note that there
was omission on citing the enabling provisions. However, we think that it is not
fatal to the application and this court can easily proceed to deal with the
mater. This is simply a rule of procedure and long ago the court were of the view
that, rules of procedures are not allowed to hinder substantial justice.” Pg.4

in the case Joseph Shumbusho v. Mary Grace Tigerwa and 2 others, Civil Appeal
No.183 of 2016, CAT at DSM (unreported) at page 14 and 15, among the many
The Court of Appeal was of the view that “non-citation and wrong citation of the
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enabling provision does not render the application incompetent” and the same
position was held at page 9 in the case of Gimbu s/o Masele and Lucas s/o
Michael v. Republic, Criminal Appeal No.491 of 2017, CAT at Tabora
(unreported)

Failure to cite enabling provision is FATAL. Case to be strucked out

In the case of Fabian Buberwa Vs. Lenida Daniel, P.C Criminal Appeal No.7 of
2017 H.C @ BUKOBA “There are polyhedral of decisions of CAT that non citation
or wrong citation of the law renders the application incompetent. The redress to
an incompetent application is that of Striking out instead of dismissal”

In the case of Marcky Mhango (On Behalf Of 684 Others) Vs. Tanzania Shoe Co.
Ltd And Tanzania Leather Associated, Civil Application No.37 of 2003. CAT @
DSM. “In the circumstances, I am increasingly inclined to accept [Link]‟s
contention that the Court has been improperly moved to entertain the
application”

“Consequently, as the court was not properly moved, the application is, likewise
incompetent”

“With respect, I find Dr. Wambali‟s insistence that non-citation of the rule in
support of the application did not render the application incompetent, to say
the least, is without any merit,”

“In the circumstances, I agree with [Link]‟s. Learned counsel for the
respondent, that the application was rendered incompetent on account of
non-citation of the applicable provision of the rule in support of the application”

“The application being incompetent, is accordingly struck out with costs”

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CONFLICT OF DECISION OR PRECEDENTS

Whenever there is conflicting precedents of the similar court (of the court of the
same weight), the Court should rely on the current new decision.

Concurrent findings of facts by two courts, what appeal court to do. Case of
Amratlal Damodar Maltaser and Another Vs. t/a Zanzibar Silk stores v. A.H
Jariwalla T/A Zanzibar Hotel, [1980] TLR 31

RES-SUB JUDICE

In Karori Chogoro Vs Waitihache Merengo, Civil Appeal No. 164 of 2018

(unreported) CAT at Mwanza. At page 10 court viewed that “The doctrine of res-
subjudice prevents a court or tribunal from proceeding with the trial of any suit in
which the matter in issue is directly and substantially the same with the previously
instituted suit between the same parties pending before same or another court
with jurisdiction to determine it.”

EXPARTE

Appeal is not an alternative for an application to set aside exparte

order/judgment

James Lugwigwi vs Lugwisha Ng'winamila, Civil Appeal No.9 of 2017 14 days is

the time limit to set aside ex-parte award in CMA, Courts or Tribunals are
Enjoined Not to entertain any Matter which is Time Barred. As in swilla secondary
school v. Japhet petro. A court of trial has a duty not only to follow the rules of
procedure but also to exercise some firm control over the proceedings before it
can, if need be, to IMPOSE and ENFORCE a timetable for litigation.

Case of Mwanza Director m/s New Refrigeration Co. ltd v. Mwanza Regional
Manager of TANESCO Ltd. TLR [2006] pg.329.

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HELD:

i. Order IX, rules 6 and 7 does not mandate the Court to proceed ex-parte
in every instance where the defendant who is duly served fails to appear.
Pg. 333. A court can refuse to proceed expert and may set aside ex-parte
judgment even if the defendant was duly served.
ii. What amount to a sufficient /good cause for non-appearance depends
on the perculiar circumstances of each case. “There is no hard and fast
rule as to what amounts to good cause, the answer depends on peculiar
circumstances of each case” pg.333. CHIPETA, stipulates that, sufficient
cause it must be shown that there was “some element of an intervening
cause which was unable reasonably to prevent or overcome” pg.130

Citing the case of Petro Bujiji v. Daljeet Singh Diloo t/a Dodoma Auto Panel
Works, HC- DOM Civil case No.14 of 1982 (unreported). “It is preferable suits
must be determined on merit, in the absence of evidence that a party is trying
to obstruct/ delay the Corse of justice”

In referring the book, Civil Procedure in Tanzania: A student’s Manual, By. B.D
Chipeta on the subject of “Consequences of non-appearance of the
defendant,” at page 127. He noted that even where the defendant duly served
fails to appear, “the Court may refuse to proceed ex-parte and may adjourn
the hearing to another date to be fixed by it if, in the Court‟s opinion, it would
be in the interest of justices to do so” Read also the case of Amratlal Damodar
vs. B. Jariwalla [1980] TLR 31

Further, in Civil Procedure in Tanzania: A student’s Manual, By. B.D Chipeta

pg.130 cements that, suits must be determined on merit, if there is no evidence
that the conduct of the party was intentional abuse of the process of the Court,
parties must be given fair hearing.

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Sometimes may happen that a defendant against whom an exparte judgment
has been passed remedy assumed to be appeal, this is wrong. The remedy for
such defendant is to file an application in the same court seeking to set aside
exparte, judgment as in the case of Mandi S/O Mtaturu V. Ntinangi (1972) HCD
n. 150 pg. 134

In Dangote Industries Ltd Tanzania Vs Warnercom (T) Limited, Civil Appeal No. 13
of 2021 (unreported) CAT at Dar es Salaam. At page 8 court provided that “We
can thus hold without any hesitate that, the right of appeal against an ex parte
decree is automatic and does not depend upon there being a prior proceeding
to set aside the ex parte judgment”

Also in the same case of Dangote Industries Ltd Tanzania Vs Warnercom (T)
Limited, Civil Appeal No. 13 of 2021 (unreported) CAT at Dar es Salaam. Under
page 9 court provided that “…where the defendant intends to challenge both
the order to proceed ex parte and the merit of the findings in the ex parte
judgment, he cannot challenge the merit of the findings before dealing with an
application to set aside the ex parte judgment first.”

Procedure to set aside an ex parte judgment

In Pangea Mineral Limited Vs Petrofuel (T) Limited and 2 Others, Civil appeal No.
96 of 2015 (unreported) CAT at Dar es Salaam. Court of Appeal at page 11
provided that “…it is settled that where a defendant against whom an ex-parte
judgment was passed, intends to set aside that judgment on the ground that he
had sufficient cause for his absence, the appropriate remedy for him is to file an
application to that effect in the court which entered the judgment.”

THE PROCEDURE FOR CRIMINAL APPEALS FROM SUBORDINATE COURTS TO THE

HIGH COURT OF TANZANIA

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S/NO. STEPS TO TAKE LAW APPLICABLE

1. Aggrieved person appeals to High Court S. 359 CPA

against any finding, Sentence or order passed
by a Subordinate Court other than a
Subordinate Court with extended powers.

High Court does not entertain an appeal on a

plea of guilty except as to the extent of legality S. 360 CPA
of the sentence.

2. Notice of appeal must be filed within 10 days S. 361 (a) CPA

from the date of finding, sentence or order.

3. Petition of appeal must be filed (Lodged) within S. 361 (b) CPA

45 days from finding, sentence or order.

 Computation of 45 days excludes time

required for obtaining a copy of the
Judgment or order appealed against.

 High Court may admit an appeal out of

time for a good cause.

4. Appeals must be made in the form of a petition S. 362 CPA

and accompanied by a copy of the Judgment
or order appealed against, unless the High
Court otherwise directs.

5. If appellant is in prison she/he shall route his/her S. 363 CPA

petition through the officer in charge of prison
who will transmit the same to the Registrar of
the High Court.

6. High Court shall give notice of time, place and S. 365 CPA
the hearing day.

7. High Court may take or cause to be taken S. 369 CPA

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 further evidence if it sees necessary so to do.

8. Only one Judge of the High Court may hear S. 370 CPA
and determine an appeal save where the
Chief Justice directs that two or more Judges
hear the appeal.

APPEAL COURSE UNDER COURT OF APPEAL RULES

S/NO. STEPS TO TAKE LAW APPLICABLE

1. Appellant to lodge Notice of Appeal Rule 83

within 30 days of decision.

2. Serve copies of the notice to the Rule 84

Respondent within 14 days.

3. Respondent to file Notice of Address. Rule 86

Serve appellant within 14 days of
filing.

4. Appellant to file Memo of Appeal Rule 90(1)a, 93

within 60 days of lodging notice.

5. Appellant to serve Respondent with Rule 97(1)

memo and record of proceedings
within 7 days of filing the memo.

6. Respondent may file cross appeal Rule 101(1)

within 7 days

7. Respondent may also file notice Rule 100, 101(2)

seeking Court of Appeal to affirm

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 decision of High Court.

8. Respondent to serve appellant with Rule 94(2)

Notice of cross Appeal/Notice of
Affirmation within 30 days of filing.

9. Hearing is on Notice at least 14 days

from such Notice.

NEW OR ADDITIONAL ISSUE RAISED

In Charles Christopher Humphey Kombe Vs Kinondoni Municipal Council, Civil

Appeal No. 19 of 2019 (unreported) CAT at Dar es Salaam, At page 9 “…It is a
settled law that after a new or additional issue is raised, the court must
according, the parties an opportunity to be heard on such new or additional
issue.”

In the case of Magambo J. Masato and 3 Others v. Esther Amos Bulaya and 2
others, Civil Appeal No. 199 of 2016. CAT (Unreported) court was of the
affirmative view at page 34-36 that “As argued by Mr. Mutalemwa, the Leraned
judge expressed the position that where the parties have been allowed to
argue an issue not raised in the pleading, the court has the duty of rendering a
decision thereon. That is indeed a correct position- See for example the case of
Agro Industruies Ltd v. Attorney General [1990-1994] 1 EA 1”

In Export Trading Company Ltd v. Tandahimba Newala Cooperative Union

(TANECU) Limited and Dar es Salaam Ndogo Auction Mart Ltd, Civil Case No.07
of 2018. H.C Mtwara, Dyansobera,J pointed out in page. 22 that

“…It is true that a company must authorize by resolution the commencement of

legal proceedings in its name. The resolution is mandatory. However, the

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existence or otherwise, is a question of fact to be proved or disproved in
evidence. In the case under consideration, their existence or otherwise was
neither pleaded nor made an issue for determination.”

RESOLUTION OF THE BOARD OF DIRECTORS

In the case of Salomon v. Salomon & Company Ltd [1897] AC 22 “the company
is at law a different person altogether from the subscribers to the memorandum;
and through it may be that after incorporation the business is precisely the same
as it was before, and the same person are managers and the same hands
receives the profits, the company is not in law the agent for the subscribers or
trustee for them.”

In the case of Tandahimba Newala Cooperative Union (TANECU) Ltd v. Chikundi

Holdings (T) Ltd, Civil Case No.8 of 2019. H.C Mtwara, Dyansobera,J pointed out
at pg. 5 that “there is a strong and unbroken chain of authorities that a
company must authorize, by a resolution, the commencement of legal
proceedings in its name”

He went further and elaborates that, “In that respect, there is no dispute that a
resolution of a company or Board of Directors authorizing the plaintiff to sue is
mandatory. For instance, Section 181 of The Companies Act, clearly states that:-
“Subject to any modifications, exceptions, or limitations contained in this Act or
in the company‟s articles, the directors of a company have all the powers
necessary for managing, and directing an supervising the management of, the
business and affairs of a company”. On which he stated the rationale for this
principle is to show that company exists and that decision has been reached in
accordance with its Constitution and Articles of Association and, therefore
legally binding.
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In the case of Tanzania Glue-Lam Industries & Another v. Bjorn Schau & 4Others,
Comm. Case No. 103 of 2003 (unreported), Kimaro J dismissed the suit because
the action was brought in the name of the company without there being a
resolution or resolution passed either at the company or board of Directors
meeting authorizing the filling of the suit, the same was referred in the case of
Bugerere Coffee Growers Ltd v. Sebaduka and another [1970] 1 EA 147 to the
effect that; “When the companies authorize the commencement of legal
proceedings, a resolution or resolutions have to be passed either at a company
or Board of Directors meeting or recorded in the minutes, but no resolution had
been passed authorizing the proceedings in the case. The Court held further
that where an Advocate has brought legal proceedings without authority of the
purported plaintiff the applicant becomes personally liable to the defendant for
the loss of the action”

In the case of Directline Assurance Company Limited v. Tomson Ondimu [2019]

eKLR This is Kenyan case, the Court referred the case of East African Portland
Cement Ltd v. Capital Markets Authority & 4 Others [2014] eKLR and Affordable
Homes Africa Limited v. Ian Henderson & 2 others HCCC No. 524 of 2004, the
court had the following observation.

“That as an artificial body, a company can take decisions only through the
agency of its organs, the Board of Directors and the shareholders; and that
where a company‟s powers of management are, by the articles, vested in the
Board of Directors, the general meeting cannot interfere in the exercise of those
powers…The upshot of these considerations is that in the absence of board
resolution sanctioning the commencement of this action by the company, the
company is not before the court at all”

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“…as an Advocate and an officer of the court, the counsel responsible for the
filling of this petition was fully aware, or should have been aware, of the
requirements of the law with regard to the filling of suits by companies, and had
a duty to advice his clients(s) not to file proceedings if there was no or no clear
authority to do so…”

In the case of Luwaita Amcos Limited v. Tanzania Coffee Board. Civil Case
no.11 of 2019. H.C at Moshi. The court first defined Locus standi that “Locus
standi it is defined in the Bryan Garner, The Black’s Law Dictionary, 7th Edition,
1999. St. Paul Minn. As the right to bring an action or to be heard in a given
forum”
Citing the case of Lujuna Shubi Ballonzi, Senior v. Registered Trustee of Chama
Cha Mapinduzi 1996 T.L.R.23 (HC) pointed out that “In this country, locus standi is
governed by the common law. According to that law, in order to maintain
proceedings successfully, a plaintiff or an applicant must show not only that the
court has power to determine the issue but also that he is entitled to bring the
matter before the court”

Citing further the case of Omondi v. National Bank of Kenya Ltd and others
[2001] 1 EA 177 court held that “It is a basic principle of company law that the
company has a distinct and separate personality from its shareholders and
directors even where the directors happen to be the sole shareholders…”

In the alternative but without prejudice, the court affirmed the principles cited in
the cases of Bugerere Coffee Growers Ltd v. Sebaduka and another [1970] 1 EA
147 (supra)

Also, he affirmed the case of Tanzania Glue-Lam Industries & Another v. Bjorn
Schau & 4Others, Comm. Case No. 103 of 2003 (unreported), where Kimaro J
held that “…the case of Bugerere Cofee Growers Ltd v. Sebaduka and another
(supra) sufficiently illustrates the position on what limited liabilities companies

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require before filling an action in court. There must be a resolution sanctioning
court proceeding. There is none in this case. This objection alone suffices to
dispose of the matter” pg.5

The Court pointed further that, the pleadings (plaint) must be read clearly
finding whether there is any kind of document pertaining sanctioning resolution,
and upon not finding he referred the case of St. Bernard’s Hospital Company Ltd
v. Dr. Linus Chuwa. H.C at DSM Commercial case No.57 of 2004 (unreported)
where it was stated as follows: “…Having carefully considered the matter, I have
reached a settled conclusion that indeed the pleading (plaint) should expressly
reflect that there is a resolution authorizing the filling of an action. A company
which does not do so in its pleading risk itself to the dangers of being of being
faced by an unsurmountable preliminary objection as it the one at hand…the
resolution should be of a general rule, that is, it is not necessary that particular
firm or person be specifically appointed to do the task. It suffices if the resolution
empowers the company management to take the necessary action”

In the case of Evarist Steven Swai and Another v. The Registered trustee of
Chama cha Mapinduzi and 2 others, Land case no.147 of 2018. H.C at DSM. The
court while settling the same matter on Board Resolution, cited the case of
Solomon v. Solomon and Company [1879]AC 22, and provided that “It is
without doubt that once registered a Company acquires a legal personality; its
all affairs are entrusted in the hands of Board of directors who perfoms all
activities of the company on behalf of the shareholders.” Pg.2

The Court went further that “Section 67 of the Companies Act, Cap 212 R.E 2002
provides that the business of the company shall be managed by the directors
who are therefore the proper person to perform any act in the name of the
company, this action is confirmed by a Board Resolution” pg.2

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The Court also pointed that, the plaint must clearly reflect the fact that there is
Board Resolution as one of the clauses with proof attached as annexture of that
[Link].3 Also The High Court Judge cemented that need of Board Resolution
is mandatory requirement and shall not be easily ignored, and he pointed out
three reasons for this, wit

(i) To eliminate wasteful litigation at the expense of a company by

individual shareholder
(ii) Suing by an authority of a resolution eliminates possibility of vexatious
actions initiated by troublesome minority shareholders/directors trying
to harass the company or have greed gain from the proceeds of
litigation.
(iii) If a wrong is done to a company, it is the company alone which can
decide to sue and that decision shall be made by the majority via the
vocal termed earlier as Board Resolution.

In the case of A ONE Products And Bottlers Limited v. Boge Kompressoren Otto
Boge Gmbh & Co Kg, Civil case No. 36 of 2019. DE-MELLO,J. Pointed clearly that,
she is aware of the two contradicting school of thoughts as far as Resolution of
Board of Directors is concerned, as first school of thought stipulated in Resolute
Tanzania Limited v. LTA Construction (Tanzania) Limited & 3others, commercial
case No. 39 of 2012, where the High Court Judge seems not interested on the
requirement of Resolution of Board of Directors, also DE-MELLO,J cited the case
of Plasco Ltd v. Efaham Ltd & Another, Commercial case No. 60 of 2012 where
the Court similary departed from the requirement of Resolution of Board of
Directors before institution of suit. pg7

In the case of Mwananchi Insurance Company LTD Vs The Commissioner for

Insurance, Misc. Commercial Cause No. 2 of 2016 HC (Unreported), similary

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relied upon first school of thought departing from the requirement of Resolution
of Board of Directors before institution of suit, parallel with it, rejecting the
position in St. Bernard’s Hospital case (supra).

Whereupon settling these contradicting schools of thought, in the

aforementioned case of Mwananchi Insurance the Judge referred the Court of
Appeal case, of Arcopar (O.M.) S.A v. Harbert Marwa and Family & 3 Others,
Civil Application No.94 of 2013, and clearly cement that “it is binding him”, the
case provides that “where there are conflicting decisions of equal weight, the
court should follow the more recent decision” pg. 5

Thus from the aforementioned legal position the Court should consider, observe
and rely upon new and more recent decisions of the Higher court.

In referring to Tandahimba Newala Cooperative Union (TANECU) case (supra)

this court held that Resolution of a company or Board of Directors it is mandatory
action before institution of suit by the Company thus, invocation of Overriding
objective principle would not simply sustain since the said principle cannot be
invoked blindly in disregard of the rules of procedure couched in mandatory
terms. This was rightly provided in the case of Puma Energy Tanzania Ltd v. Ruby
Roadways (T) Ltd, Civil Appeal No.3 of 2018. Where this Court of Appeal decision
pronounced in 2020,under pg.10 that “Whilst taking cognizance of the
overriding objective principle, the court made it clear that the said principle
cannot be invoked blindly in disregard of the rules of procedure couched in
mandatory terms”

In the case of Giant Machine and Equipment Ltd v. Gilbert R. Mlaki and Capcon
Ltd, Civil Case No.05 of 2019. Mongella, J reminds us in page.3 that, the
subordinate Courts under The Court of Appeal of Tanzania should not bother
and compromise themselves on requirement to have a board resolution for a
company to sue, since there are bunch of Court of Appeal cases which they

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should abide, requires a board resolution for a company to sue . He further
states that “The above position was reiterated by the Court of Appeal in the
case of Pita Kempap Ltd. V. Mohamed L.A Abdulhussein, Civil Appeal No.128 of
2004 & 65 of 2005. Also The CAT in Uriso Palms Estate Limited v. Kyela Valley
Foods Ltd. & 2 Others, Civil Application No. 28 of 2014 (CAT at DSM). Adding
further that “Company does not need a board resolution when it is being sued,
but it certainly needs the resolution if it is the one instituting the suit as plaintiff”

In the case of Investment House Ltd V. Webb Technologies (T) Limited and 2
Others , Commercial case no.97 of 2015. Resolution of Board of Directors is
Mandatory. Pg. 6 also not good ground of P.O

Reminder: Please refer the decision of SIMBA PAPERS above and analysis
thereon, on the current position of Board Resolution, at page 49.

A VISIT OF THE LOCUS IN QUO

In the case of Prof. T. L. Maliyamkono Vs Wilhelm Sirivester Erio, Civil Appeal No.
93 of 2021 (unreported) CAT at Dar es Salaam at page 12 &13 court opined that
“A visit of the locus in quo is not mandatory, and it I done only in exceptional
circumstances. However, where it is necessary to conduct such visit, the court
must attend with parties and their advocates, if any, and such witnesses who
may have to testify in that particular matter. Further, note should be taken
during the visit and then all those in attendance should re-assemble in court and
notes be read out to the parties to ensure its correctness.”

TENDERING EXHIBITS

Tendering original evidence and capacity to tender

It is the requirement of the law under Rule 11(1) of The Magistrates‟ courts (Rules
of evidence in Primary Courts) Regulations. GN No. 66 of 1972. That ; The original
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document must always be produced. In exception under the same Rule 11(1)
paragraph (b) allows a copy documents to be produced only if they are
certified that they are true copies.

In the case of Arusha City Council and another v. M/S MIC (T) Limited, Civil case
No.45 of 2018 (unreported) H.C at DSM. The Court in page 3 clearly stated that
“The first principle is relevancy rule or best evidence rule. Under that principle,
the document must be relevant to the dispute. The original document is the
best”

In the Court of Appeal case of Priscus Kimario v. R [2016] TLS LR 37, the Court
ordered that, “tendering exhibit by a person who did not make it, while no
explanation was given why the marker of the same exhibit did not come to
Court, rendered the process irregular”

ESTOPPEL

In the case of Catholic Diocese of Moshi v. Attorney General and The

Commissioner for Customs [1998] TLR 418. Defines Estoppel

STATUTORY RAPE-PROOF OF AGE IS MANDATORY

In the case of Rajabu Hassani v. The Republic, Criminal Appeal No.42 of

2018.H.C at DSM (unreported) Before the Trial Court the Appellant was charged
and convicted for Rape of a school girl aged 13 years old. On Appeal, the
Appellant raised the ground that there was failure on part of Prosecution to
prove the age of the victim. The High Court Judge strongly at page 4 ordered
that, “With respect, I cannot agree with the Learned State Attorney more. It is
now settled law that in cases of statutory rape as the present, the Prosecution
has a duty to prove the age of the victim” The Conviction was quashed and the
sentence set aside.

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Conviction in criminal proceedings can only be grounded if the prosecution has
led in the evidence that has established the accused‟s culpability at the
standard which is set under law. The standard is beyond reasonable doubt as
provided under the case of Jonas Nkize v. Republic [1992] TLR 213.

In the case of Mhangwa s/o Zacharia v. The Republic, Criminal Appeal No.34 of
2020.H.C at Mwanza (unreported) “Mightily concerning is the fact that the
question of age, a key ingredient in the offence of statutory rape, was far from
certain” The High Court went further under page 8 that; “Noting that
establishment of age is a condition precedent for a decision on whether
statutory rape was committed, a glaring miss in this case, I join hands with Ms.
Mathayo, and hold that the case against the Appellant was not proved at the
threshold standard which would justify the Appellant‟s conviction and eventual
sentence. The net effect of all this is simply that the prosecution did not prove its
case beyond reasonable doubt.” The Conviction was quashed and the
sentence set aside.

In the case of Andrea Francis v. The Republic, Criminal Appeal No.173 of 2014
(unreported) in which Court of Appeal at page 4 stated that “with respect, it is
trite law that, citation in a charge sheet relating to the age of an accused
person is not evidence, likewise the citation by a magistrate regarding the age
of a witness before giving evidence is not evidence of that person‟s age”

The court went further that, the evidence relating to the age of the victim is
expected to come from, the victim, both of her parents or at least one of them,
a guardian or a birth certificate.
In the case of Emmanuel Kibona and Another v. Republic,[1995] TLR 241,
Mchome, J provided that “Evidence of a parent is better than that of a medical
doctor as regards that parents child‟s age.” The Court went further that “Where
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age cannot be assessed accurately the benefit of doubt must be given to the
accused” “In this case the Appellant are given the benefit of doubt”
In the case of Azizi Abdallah v. Republic [1991] TLR 71 it was stated that “The
general and well known rules is that, the prosecutor is under a prima facie duty
to call those witnesses who, from their connection with the transaction in
question, are able to testify a material facts. If such witnesses are within reach
but are not called without sufficient reason being shown, the court may draw an
inference adverse to the prosecution.”

In the case of Mathias Patrick v. The Republic, Criminal Appeal No. 55 of 2018
H.C at Arusha (unreported). The court under page 6 provided that, “The
prosecution was bound to establish by evidence that, the victims were below 18
years old. This is in line of the decision of the Court of Appeal in Andrea Francis v.
Republic, Criminal Appeal No.173 of 2014, CAT at Dodoma (unreported) where it
was opined that the age of victim was determining factor in establishing the
offence of statutory rape. The same position was replicated in Rwekaza Bernado
v. Republic, Criminal Appeal No.477 of 2016, CAT- Bukoba where it was
remarked as follows “…we are of the considered opinion that the issue of age of
the victim which was alleged in the particulars that described how the offence
of rape was committed was a crucial matter to be proved by the witnesses who
supported the prosecution case”
The Court went further that, the evidence of the victim must be proved and
corroborated by the victim‟s parent.

ADVERSE INFERENCE

In Hemedi Said Vs Mohamed Mbilu [1984] T.L.R 113. “Where, for undisclosed
reasons, a party fails to call a material witness on his side, the court is entitled to

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draw an adverse inference that if the witness were called they would have
given evidence contrary to his interests.”

In the case of Azizi Abdallah v. Republic [1991] TLR 71 it was stated that “The
general and well known rules is that, the prosecutor is under a prima facie duty
to call those witnesses who, from their connection with the transaction in
question, are able to testify a material facts. If such witnesses are within reach
but are not called without sufficient reason being shown, the court may draw an
inference adverse to the prosecution

BURDEN OF PROOF IN CIVIL CASES

In Anthony M. Masanga Vs Penina (Mama Mgesi) and Lucia (Mama Anna), Civil
Appeal No. 118 of 2018 (unreported). “In Anthony M. Masanga Vs Penina
(Mama Mgesi) and Lucia (Mama Anna), Civil Appeal No. 118 of 2018
(unreported). Court viewed that “…Lets begin by re-emphasizing the ever
cherished principle of law that generally in civil cases, the burden of proof lies
on the party who alleges anything in his favour.”

in Yusufu Selemani Kimaro Vs Administrator General and Two Others, Civil

Appeal No. 266 of 2020 (unreported) CAT at Dar es Salaam, At page 24. For, in
civil cases, the onus of proof does not stand still, rather it keeps on oscillating
depending on the evidence led by the parties and a party who wants to win
the case is saddled with the duty to ensure that the burden of proof remains
within the yard of his adversary.”

CONVICTION IN ABSENTIA

In the Court of Appeal case of Abdallah Hamisi v. The Republic, Criminal

Appeal No. 26 of 2005. The court of Appeal provided that ; “The duty of the
Courts is to apply and interpret the laws of the country. The superior courts have

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additional duty of ensuring proper application of the laws by the courts below.
In the instant case this Court is pointing out that the correct procedure as
sanctioned by law, ie. Section 226(2), as construed hereinabove, was not
followed, and that this should be put right. We think that was not only proper for
the court to adopt such a course, but that the court had a duty to do so…It is
our affirmed view that this is the answer to the above posed question. In the
final analysis, we are of the view that failure by the learned magistrate to
exercise his discretion under subsection was fatal in as much as it thereby
denied the appellant his fundamental right to be heard”

In the Court of Appeal case of Adam Angelius Mpondi [Link] Republic , Criminal
Appeal No. 180 of 2018. The Justice of Appeal pointed out clearly that “From the
above, it is patently clear that, the trial magistrate did not make trouble to ask
the accused person, on why he was absent. The Trial magistrate ought to have
exercised his discretionary power by giving a chance to the accused person to
explain away his absence in order for him to be satisfied if the accused had
justifiable reasons for his absence.” This court has, now and then, held that
failure by the court to comply with section 226(2) of the CPA in finding out the
cause of the accused‟s absence during the trail vitiates the proceedings of the
trial court which was conducted in his/her absence (see. Loning’o Sangau v. The
Republic, Criminal Appeal No.396 of 2013”

LEAVE TO CAT / 1ST BITE TO THE HC

1ST – H.C is vested with discretionary powers to grant leave to appeal to the CAT
under Section 5(1) c of the Appellate Jurisdiction Act, Cap 141 R.E 2019.

2ND- From the Court to grant the leave, the Applicant must satisfy the Court on
the reasonable chances of succeeding in the Appeal. Further, the Court must

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be satisfied that, the proceedings as a whole reveals such disturbing features
which require attention of the CAT in order to give direction thereto.

In the case of Abubakari Ali Himid v. Edward Nyelusye, Civil Application No.51
of [Link](Unreported) at page 6, cited with approval in the case of Charles
Oden Mwaihola V. Finca Microfinance Bank & Another, Misc. Civ Appliaction
No. 703/2018 HC@DSM (Unreported) pg. 3& 4 “Leave is grantable where the
proposed appeal stands reasonable chances of success or where, but not
necessarily the proceedings as a whole reveal disturbing features as to require
the guidance of the Court of Appeal”

Also in Harbin Haji Mosi & Another v. Omari Hilal Seif & Another, Civil Reference
No. 19 of 19/1999 (unreported) cited with approval in the case of Step in Limited
v. Dar es Salaam Institute of Technology, Misc. Commercial Cause No.328 of
2015 HC @DSM (unreported) pg.4-5 whereof, the CAT set guidance on granting
leave to Appeal and stated that there is actually disturbing features in the sense
that, the very same Court (HC) has confusing decisions on maximum jurisdiction
on Subordinate Court.

In the case of British Broadcasting Corporation [Link] Sikujua Ng’maryo, Civil

Application No.138 of 2004(unreported) “The affidavit in support of the
application was before the court and the leaned trial Judge should have
subjected the issue to analysis to see if they merited reconsideration by this
Court on Appeal”

PROBATE CASES

Celestina Paulo V Mohamed Hussein 1983 TLR 291 (HC) High Court of Tanzania –
Bukoba- Judge Mushi J. The case concerned on whether the difference of

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religion can affect an ascertained will in appointing an administrator of an
estate, also on whether the difference in clan linkage can prevent a person
from administering the property of a deceased person of another clan.

HELD:

i. Where there is an ascertained will the same must be respected in letter

and spirit notwithstanding the difference of religion between the
deceased and the appointed administrator;
ii. Where personal property is bequeathed the person bequeathing the
property has an absolute right to choose an administrator of her own
choice and the clan has no right to interfere with the same.

Maagwi Kimito V. Gibeno Werema 1985 TLR 132 (CA) Court Court of Appeal of
Tanzania – Mwanza- Judge Nyalali CJ, Mustafa CJ, Kisanga, JJA . Whether
widow, sole heir of her deceased husband's estate, is liable to pay the debts of
her late husband. Customary Law - Kuria customary law - Liability of a widow,
sole heir, to refund bride price received by her deceased husband - Whether
such liability extends beyond the assets which she actually received in the
estate of her deceased husband.

HELD:

i. The customary laws of this country now have the same status in our courts
as any other law subject only to the Constitution and any statutory law
that may provide to the contrary;
ii. since under Kuria customs the respondent was the sole heir to her
deceased husband's property and nobody else, likewise she was liable to
pay the deceased's debts;
iii. an heir is liable to pay in full the debts which the deceased was liable to
pay;

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 iv. It is not only correct in law but proper in principle that the respondent,
who is the sole heir of her deceased husband, be liable to refund the
bride price which her husband received in respect of the marriage of his
sister to the appellant.

Violet Ishengoma Kahangwa and Jovin Mutabuzi V. The Administrator General

And Mrs. Eudokia Kahangwa, [1990] TLR 72 (CA)- Dar es Salaam. The issues
were;

i. Whether Administrator-General can administer the estate under

customary law.
ii. Whether Administrator-General needs to appear before a Primary Court
by reason of administering the deceased's estate under customary law
iii. Family Law -Whether illegitimate children qualify for distribution of the
deceased's estate.

HELD:

i. In administering the estate the Administrator-General does not have to

appear in the Primary Court for any purpose because he is not acting as an
advocate representing a particular party. All that is required of him is to
distribute the estate to all those who qualify for distribution. In case he runs
into a difficulty he may turn to the High Court f or direction.

ii. Under paragraph 43 of the Local Customary Law (Declaration) (No.4)

Order, 1963, G.N. No.436 as applied to the Bahaya tribe vide [Link].605 of
1963, an illegitimate child cannot inherit from the father's side upon his
dying intestate;

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iii. A child as defined under the Law of Marriage Act, 1967 does not include
an illegitimate child, thus the word "children" in section 129 (1) of the Law of
Marriage Act does not include illegitimate children;

iv. A putative father's obligation to his illegitimate children is personal and

ends with his death. It does not survive him and cannot attach to his estate
upon his dying intestate.

Mwanahawa Muya V Mwanaidi Maro [1992] TLR 78 (CA)- Judge Omar JJA,
Ramadhani JJA, Mnzavas, JJA . The issues were on;

i. Annulment of grant of letters of administration - Concealment of letter of

administration granted by lower court

ii. Effect of such concealment.

iii. Civil Practice and Procedure - Revisional powers - Suo moto - When
exercisable

HELD:

i. Respondent's blatant lies that there had not been previous proceedings
regarding grant of probate or letters of administration while she was in
fact the objector in the R.M.'s court when letters of administration were
granted to the appellant, amply demonstrated that she was bent to
defraud other interested parties in the estate. Had the High Court
(Nchalla, J.) dealt with this issue he would no doubt have found that this
was a good reason to annual the grant of letters of administration to the
respondent by the High Court (Chua, J.);
ii. In a proper case the High Court can invoke its powers of revision in a
grant of letters of administration by the District Court. Powers of revision
are however usually exercised by the High Court suo moto when
exercising its supervisory powers over subordinate courts;
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 iii. It is wrong, indeed improper, for the High Court to resort to its revisional
powers where (as it was in this case) there are specific issues calling for
determination by the court.

Ibrahim Kusaga V. Emanuel Mweta [1986] TLR 26 (HC). The issues were

i. Powers of Primary Courts in administration of estates matters - S. 15(1) (c)

of the Magistrates Courts Act, 1963.

HELD:

(i) A Primary Court may hear matters relating to grant of

administration of estates where it has jurisdiction, i.e., where the
law applicable is customary law or Islamic law;
(ii) a Primary Court ought not to distribute the estate of the
deceased; that is the job of an administrator appointed by
court;
(iii) Partnership property is not covered under customary law or
Islamic law.

Thomas Matondane V. Didas Mawakalile & 3 Others 1989 TLR 210 (HC) Court
High Court of Tanzania- Mwanza- Judge Mwalusanya J. The issues were;

ii. Customary Law - Will - Deceased illiterate –

iii. A requirement as to attestation rules on wills, GN No. 436/1963. Customary
land law
iv. Relative redeems land prior to pledger's death - Effect of redemption

HELD:

(i) The will under which the appellant claimed ought to have been
witnessed by two clan members and two non-clan members as

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 required by the Rules on Wills since the deceased was illiterate. The will
was therefore null and void;
(ii) Redeemed clan land does not become the property of the clan. It is
the law that the redeemer of clan land which had been pledged
becomes the owner of that land;
(iii) the appellant acquired a title to the piece of land after the expiry of 12
years during which he was in uninterrupted possession thereof;
(iv) It was contrary to the principles of justice to deprive the appellant of
the piece of land which he had long possessed without giving him a
hearing. Appeal allowed.

Divorce does not ipso facto revoke a will

Re Bird Deceased, [1970] 1 EA 289 (HCT) Division: High Court of Tanzania At

Arusha- BEFORE: PLATT J. The issues were;

(i) Whether divorce revokes will

(ii) Whether divorced wife entitled to the property.

HELD;

(i) divorce does not ipso facto revoke a will;

(ii) As the applicant was the person referred to in the will as Margaret Bird
she was entitled to the testator‟s property.

Lodging a caveat

Maamun Bin Rashid Bin Salim El-Rumhy V Haider Mohamed Bin Rashid El-
Basamy [1963] 1 EA 438 (SCK). The issues were;

(i) Who should lodge a caveat

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 (ii) Whether claim of superior right can be asserted by lodging caveat –
Indian Probate and Administration Act, 1881, s. 19, s. 20, s. 23, s. 46, s. 69
and s. 70.

HELD;

(i) The practice of the court to order, as a matter of course, that

citations issue to all persons shown in the petition as being heirs of the
deceased, was incorrect; therefore, save in cases where the court
considers it necessary, non-contentious citations should not be issued
unless the petition discloses that the person seeking the grant has a
lesser right than some other person who has failed to take the
necessary steps to obtain it.

(ii) A caveat should be filed only if a person wishes to argue that the
person who has applied for the grant has no right thereto; if, on the
other hand, the person cited concedes that the person who has
applied has a right to the grant but contends that he has a superior
right, then, the proper course for him to adopt is to enter an
appearance to the citation and himself apply for a grant.

(iii) The effect of the deceased‟s will was to make her heirs her residuary
legatees; therefore, any of the heirs had a right to a grant of
administration de bonis non after the death of the executor.
(iv) As all the residuary legatees were dead, the representative of any
one of them had, by virtue of s. 20 ibid., the same right to a grant of
administration as had the legatee whom he represented; the
expression “representative” in this section meant, not the legal

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 personal representative, but a person who was entitled to a share in
the estate under the law governing the distribution of the estate.

(v) It did not matter that the plaintiff was not a “direct” heir; he was a
person interested in the estate of the deceased, that interest having
accrued to him under the rules of distribution applicable in this case.
Letters of administration granted to the plaintiff/petitioner. Caveat
ordered to be lifted.

Re The Estate of Petit (Deceased) [1958] 1 EA 671 (SCK). The issues were;

i. Application for grant of probate

ii. Order made by judge admitting will to probate
iii. Caveat lodged before form of grant of probate signed by judge – Validity
of caveat
iv. When is probate granted – Indian Probate and Administration Act, 1881, s.
70 and s. 76.

HELD;

(i) The grant of probate is the form prescribed by s. 76 of the Indian

Probate and Administration Act, 1881, and not the order of the
judge.
(ii) The grant is complete when the seal is affixed and therefore the
caveat was not lodged in time and was of no effect.

FAIR AND COMPETITION TRIBUNAL vs. HIGH COURT

Tanga Cement Public Company Ltd v. Fair Competition Commission, Civil

Application No.10/20 of 2018. CAT @DSM. The court viewed that;

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“CAT does not have jurisdiction to REVISE the Judgment/Ruling of Fair and
Competition Tribunal, under Section 4(3) of AJA- even if the section is to be read
together with Section 84(1) (2) of Fair and Competition Commission”pg.17

“Proceedings and decisions of Fair and Competition Tribunal are not

proceedings before the High Court, as Fair and Competition Tribunal is not High
Court within the meaning of Section 4(3) of AJA”pg.17

“Decision of Fair and Competition Tribunal shall be final, Section 61(8) and 84(1)
of The Fair and Competition Act,2003”pg.18

“Section 4(3) gives CAT a supervisory power to the High Court, on matters
decided by the High Court”- that Fair and Competition Tribunal is not High
Court…Kitinda Kimario v. Anthony Ngoo & Another, Misc. Civil Application No.67
of 2014

“CAT can entertain matters concluded by the High Court”- Dominic Nkya and
Another v. Cecilia Mvungi and 2 Others, Civil Application No.3 “A” of 2006
(unreported)

“H.C and Fair and Competition Tribunal does not concurrent jurisdiction under
the mere fact that it is chaired by a sitting Judge of High Court”

Section 84(2) of FCT “The Judgment and orders of the Tribunal shall be executed
and enforced in the same manner as judgment and orders of The High Court” –
Interpretation of the word “as” cannot be interpreted to mean EQUAL
.pg.13&14

“Decision and orders by the Fair and Competition Tribunal are amenable to
JUDICIAL REVIEW by the High Court” pg.5&6

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DIVORCE, SEPARATION, MAINTENANCE OF THE CHILDREN, DIVISION OF
MATRIMONIAL ASSETS AND CUSTODY OF CHILDREN

Sumaiya Ally v. Philbert Chilahahwa, Matrimonial Appeal No.03 of [Link]@

Bukoba(unreported The court ordered that “Definition of matrimonial
proceedings means all matters contained under Part II and VI of LMA”-section
2(1)..pg.5&6

“Part VI of the LMA is all about matrimonial proceedings, ie. Petition for divorce
and separation, division of matrimonial asserts, custody of children,
maintenance and other relevant matters” pg.6&7

“Primary Court has no jurisdiction to entertain a matrimonial dispute by referring

it with Section 75 of The Law of Marriage Act” because Section 75 is irrelevant to
vest P.C a jurisdiction under Matrimonial proceedings. pg.7

“Section 75 of The Law of Marriage Act, falls under the category of

miscellaneous rights of action”. Pg.7

“The proper section in jurisdiction of primary court on matrimonial proceedings is

Section 76 which falls under Part VI, it provides Original jurisdiction in matrimonial
proceedings shall be vested concurrently in the H.C, R.M, D.C and P.C”pg.7

“Regardless of the nature of marriage, be civil marriage, customary, or Christian

marriage, in case of any dispute where the petitioner seeks a decree of divorce
or separation, maintenance of the children, division of matrimonial assets or
custody of children, the matter may be filled at the H.C, R.M, D.C and P.C
because all these courts have concurrent jurisdiction on matrimonial
proceedings” pg.7

“The only thing the parties may consider is their convenience in terms of
availability of witnesses and possibly the location of the matrimonial assets” pg.7
(last paragraph)

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“Under the LMA claims for damages for adultery falls under the jurisdiction of the
primary Court if such damages have been (must be) claimed in the petition for
divorce, the reason is that Section 109 of LMA provides that claim for damages
for adultery falls under part VI which is under the category of matrimonial
proceedings” pg.8

ADULTERY UNDER PRESUMPTION OF MARRRIAGE

Wilson Andrew v. Stanley John Lugwisha & Tatu Joseph, Civil Appeal No.226 of
2017,CAT@Mwanza (Unreported)

“For a claim of damages for adultery status of marriage must be certain” pg.10

“Original jurisdiction in matrimonial proceedings shall be vested concurrently in

the H.C, R.M, D.C and P.C” pg.12

“Primary court shall have jurisdiction to determine claims for adultery in situation
where there is a petition for divorce in matrimonial proceedings” pg.12

“The jurisdiction of P.C to entertain claims for adultery where there is no petition
of divorce against his/her spouse are provided under Part V, which deals with
miscellaneous rights of action..ie. A primary court shall have jurisdiction under
part v where parties were married in accordance to customary law or Islamic
law” pg.12-13

“Primary court have no jurisdiction to entertain claim for damages for adultery
under presumption of marriage”..pg.12(last paragraph)-pg.13 (1st paragraph) ,
pg.14(lat paragraph)- pg.15(1st paragraph)..case referred Jumanne Jingi v.
Njoka Kiduda [1984] TLR 51 “..burden of proof was on the appellant to prove
that he had been validly married to this woman before he could be heard to
complain of adultery…” pg.15

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Zacharia Lugendo v. Shagrank Lumilang’omba [1987] TLR 31

“there was no proof of marriage between the appellant and the woman, and
therefore the suit for damages for adultery could not stand”- parties were just in
concubinage

TEMPOLARY INJUNCTION

In Abdi Ally Salehe Vs Asac Care Unit Limited and 2 Others, Civil Revision No. 3
of 2012 (unreported) CAT at Dar es Salaam. The Court of Appeal provided that
“…the purpose of a temporary injunction is to maintain status quo pending
determination of the suit, if a prima facie case is made out…” at page 11

CIVIL PRISONER

Order XXI Rule 30(1) of The CPC, requires that Execution of the Decree by arrest
and detention by the Court is possible where Decree was for (i) Specific
performance of contract (ii) restitution of conjugal rights (iii) or for injunction.
And Judgment debtor willful fails to comply with the Decree.

Order XXI Rules 28, requires that, Execution of a decree for the payment of
money may be executed by the detention as civil prisoner, but Rule 35 of the
same Order requires that, the court instead of issuing warrant of arrest, may issue
a notice calling him to appear before the court and show cause why he should
not be committed to prison.

In the case of The Grand Alliance Limited v. Mr. Wilfred Lucas Tarimo and 4
Others, Civil Application No.187/16 of [Link] at DSM pg.11,12, 14,21,26,27 ,
provides the sense that “execution by detention as civil prisoner is not an
automatic and bust way for execution”, that in effecting the conditions under
Section 42 to 47, Order XXI Rule 28 and 30(1) that gives the right to commit a

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judgment debtor as a civil prisoner, Rule 39 of Order XXI requires that, the
executing court must strictly satisfy itself before detaining a person as a civil
prisoner that; among the many,

i. “there is any other act of bad faith in relation to his property, with the
object or effect of obstructing or delaying the decree-holder in the
executing of the decree” [executing court must find that the judgment
debtor has act of bad faith that would warrant for the detention and
committal as civil prisoner] pg.21 & 22 of the case; or

ii. “Refusal or neglect on the part of judgment debtor to pay the amount of
the decree or some part thereof when he has”

Also “before executing court can secure the attendance of the judgment
debtor by issuance for a warrant of arrest, it must be satisfied that the judgment
debtor was dully served with the notice to show cause and there was
disobedience to the notice”. Pg.16 and 17of the case above.

In page 23 of the case illustrates what constitute to bad faith, CAT referred the
Supreme court of India in the case of Jolly George Veghese & Another v. The
Bank of Tanzania of Cochin AIA 1980 SC 470 that; “simple default to discharge is
not enough. There must be some element of bad faith beyond mere
indifference to pay, some deliberate or recusant disposition in the past or,
alternatively current means to pay the decree, some or substantial part of it”
pg.23 & 24 Not mere omission to pay shall amount to detention as a civil
prisoner.

In alternative the law requires the Chief Executive Officer of a body corporate in
the rarest and very limited circumstances to be detained as a civil prisoner for
the corporate body and not any other but him. This was rightly held in the case
of The District Executive council v. Nyamarelo Mashauri Faraja, Land Revision

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No. 22 of 2017.H.C at Mwanza(Unreported). Makaramba, J stated that “I should
perhaps note here that, in the rarest circumstances, there could be a possibility
of executing a money Decree by detention as a civil prisoner of a Chief
Executive Officer of a body Corporate”

Order XXI Rule 30(2). For a body corporate, detention of the director or other
principal officers as civil prisoner may be carried out only where the Decree was
for Specific performance or Injunction. This is to mean any other principal officer
can be only detained where the decree was for specific performance or
injunction, not otherwise.

POWER OF ATTORNEY

Whether a person can represent another person without Power of Attorney or

clear authorization

The issue of who to appear in court and authorization can be fused in Order III
rule 1 of The Civil Procedure Code [Cap 33 R.E 2019], where it provides the sense
that, any appearance, application or any act to the court, may be done by the
party in person or his recognized agent or advocate duly appointed to act on
his behalf…”

This part provides the crucial guidelines that, appearance in court or application
may be done either by the party himself, or by the recognized agent or
advocate and not otherwise. Further under Order III Rule 2(a) (b) of the Law,
provides the formal way, on which agents may represent another person
(principal). That among the two mentioned (a) is through power of attorney

From this we can draw a conclusion that, a party can never make an
application or appearance in court without a valid and clear authorization /
power of attorney. In Hassan Marare Magori & Another v. Juma Marare & 4
others (1992) HCT. The court stipulates on circumstances on using a power of

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attorney, “…where the person who is party to a case is
unable to pursue the case himself / herself for reasons of old age, sickness or
where such party is dumb or deaf ,or when the party to the proceedings is away
in a foreign country and getting such party back would be tedious or expensive.
His Lordship added that the donor of the power of attorney must be sure the
donee of the power of attorney would step into
donor‟s shoes and that the donor of the power of attorney must accept all the
consequences that may arise in the course of the litigation. Lastly, his Lordship
said that the grant of the power of attorney should not be made subject to
remuneration. But the power of attorney in the Court of Appeal applies only
where the person to be represented is not resident in Tanzania...”

From this we finds that, where a person is unable to enter an appearance or

pursue the case for him/herself due to either Accident which cause
incapacitation, sudden and serious illness, Old age and any other reasons like
Loss of legal capacity due to bankruptcy must have been authorized through
power of Attorney by the Principal to do so.

In Monica Danto Mwansasu (By virtue of Power of Attorney from Atupakisye

Kapyela Tughalaga) v. Esrael Hosea and Issa Mwakijebele, Land Revision No.2
of 2021. H.C at Mbeya (Unreported) pg.3, The Court was of the view that “In the
first place the law instructs that, a party to court proceedings cannot prosecute
or defend a matter into which he lacks locus standi; a court of law also lacks
powers to entertain such proceedings. Otherwise, the proceedings become a
nullity”

The court went further in page 5 opining, while discussing the same matter on
representation that the issue of representation is of huge importance and
cannot even be cured by overriding objective principle.

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In Julius Petro v. Cosmas Raphael [1983] TLR 346 (CAT) Mwalusanya, J (as he
then was) found that, only genuine authorized agents are permitted by law to
represent other persons by way of power of attorney.

Also under Section 41 of The Advocates Act, [Cap 341 R.E 2019] provides that
“No unqualified person shall act as an advocate, or agent for suitors or, as such,
issue out any summons or other process, or commence, carry on or defend any
action, suit or other proceeding in the name of any other person or in his own
name, in any court of civil or criminal jurisdiction, or act as an advocate in any
cause or matter, civil or criminal”

Representation in law suit vs Administration of Estates

Whether a person (heirs) can represent a deceased person in a court of law

without being appointed as administrators of Estates.

It is in the eyes of the law in regard to representation that, representatives must

be duly appointed by the principal. However regarding to probate and
administration of estates, it is the administrator of estate or Executor who has
been given total mandate regarding to the estates of the deceased. Section
101 of the Probate and Administration of Estates Act [Cap 352 R. E 2002]
provides the power in regard to disposition of property, as stated in the case of
Naima Ibrahim Vs. Isaya Tsakris, Civil Appeal No 151 Of 2007, the Court was of
the view that “among the duties of Executor and administrators of estates is
that, they may dispose off the properties for the benefit of the successors”

In Ibrahim Kusaga V. Emanuel Mweta [1986] TLR 26 (HC), the High

Court was of the view that, “a Primary Court ought not to distribute the estate of
the deceased; that is the job of an administrator appointed by court”

Apart from disposing off the properties/ estates of the deceased, the law under
Section 100 of the Act requires the same administrator or Executor to appear to

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defend or institute a suit in relation to certain cause of action. In the case of
Saidi Ibrahim v. Melembuki Kitasho, Civil Application No. 5 of 2014, In The CAT at
Arusha ( Unreported Case) court held that “the administrator of estate must
make formal application in court so that he is made a party to the proceedings
in place of the deceased”

If an applicant/respondent died while there is pending case in court, the

administrator must make an application to defend the suit, if the deceased died
before the case commences then no need of an application by the
administrator, but automatically an administrator initiates a claim or defends the
same, as per Order XXII Rule 4(1) of the CPC. More clarification is that, in case
they are appearing in a case which has already been commenced, they
should make an application to be impleded. In Saidi Ibrahim (supra) The court
of Appeal under page 2 viewed that “since the purported applicant is yet to
make an application, in law he cannot be taken to represent the deceased. In
legal parlance, he has no locus standi”

In the case of Ndamo Kulwa v. Salum Mihangwa, Land Appeal No. 30 of 2011,
HC. Court held that, following death of a person, no person other than the
person granted probate or letter of administration has power to sue or
prosecute any suit or otherwise act as a representative of the deceased. The
same provision concurred in section 71 of the Probate and Administration of
Estate Act.

So from this stand, beneficiary cannot automatically take over the proceedings.
In the case of Majuto Juma Nshahuzi v. Issa Juma Nshahuzi Pc Civil Appeal No.
9 of 2014, Court held that duty of the administrator to collect and distribute the
estate to his lawfully heirs it is upon appointment that an administrator can have
locus stand to institute a suit to recover land of a deceased or any property.

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In Salama Ismail Hanya (as the Administratix of the Estates of the late Ismail
Omary Hanya) and Another v. Tunu Isamil Hanya (as the Administratix of the
Estates of the late Ismail Omary Hanya and 2 Others, Land Appeal No.88 of 2020.
H.C at DSM (Unreported). On this case one of the rival arguments by the parties
specifically under page 4 was in argument that, whether heir has capacity to
sue on the property of the deceased, and also whether has automatic legal
right to protect the rights over the property of his late father. The court in page
8-9 held that

“On the 2nd ground that the Hon. Chairman erred in holding that the second
appellate has no locu standi to sue claiming the deceased estate, this need not
to take much of my time. It is trite law that it is the administrator or executor of
the deceased estate who has power to sue in all causes of action which
survived the deceased. This rightly laid down under Section 100 of the Probate
and Administration of Estates Act, Cap 352. I find no merit in this ground and I
dismiss it. In the event, I find no reason to reverse the decision of the trial tribunal;
I therefore dismiss the appeal with costs”

CAUSE OF ACTION

In Musanganga’ndwa Vs Chief Japhet Wanzagi & Eight Others [2006] T.L.R 351.
“A cause of action means every fact which would be necessary for the plaintiff
to prove in order to support his title to a decree; in other words, a cause of
action is the sum total of those allegations upon which the right to relief claimed
s founded.”

Remedy of plaint which did not disclose cause of action

in Albeila International Limited Vs The People Bank of Zanzibar Limited, Civil

Appeal No. 117 of 2007 (unreported) CAT at Dar es Salaam The court of Appeal

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at page 9 provided that “The remedy for a plaint which does not disclose a
cause of action, appears in our view, to be rejection…”

Amended plaint/WSD

In Aitel Tanzania Limited Vs Ose Power Solutions limited, Civil Appeal No. 206 of
2017 (unreported) CAT at Dar es Salaam. Court of Appeal At page 13 was of the
view that “…the settled position is that upon filling an amended plaint, the
original plaint ceases to exist. The same when an amended WSD is filled inferring
the end of the original WSD.”

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