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NOTE: ALL DECISIONS IN THIS SPECIAL PACK HAVE ALREADY BEEN SEPARATELY UPLOADED INTO THIS E-LIBRARY. AVOID MAKING DOUBLE PAYMENTS FOR ONE DECISION.
NURU OMARY LIGALWIKE V. KIPWELE NDUNGURU, COURT OF APPEAL OF TANZANIA, DAR ES SALAAM, (2015).
Leave to appeal to the Court of Appeal in land matters– applicable provisions – Exclusiveness of the High Court in granting leave in land disputes – Court of Appeal has no power to grant leave in land matters.
- Section 5(1) (C) of the Appellate Jurisdiction Act does not apply to regulate leave over land disputes arising from exercise of jurisdiction land courts under the Land Courts Act.
- High Court has the exclusive jurisdiction in an application for leave to appeal to the Court of Appeal in land matters as clearly shown in Section 47(1) of the Land Dispute Act.
- Court of Appeal has no jurisdiction to entertain application for leave in land cases. As the leave of the High Court is mandatory requirement before the appeal filed to the Court of Appeal, someone cannot file a second bite application in land matters before the Court of Appeal if aggrieved with the decision of High Court.
LEONARD MAGESAV. M/S OLAM (T) LTD, COURT OF APPEAL OF TANZANIA, (2015)
Application for extension of time – illness as a good cause
- Illness of the Applicant during the material time constituted a good cause for granting an extension of time.
MUHIMBILI NATIONAL HOSPITAL V. CONSTANTINE VICTOR JOHN, COURT OF APPEAL OF TANZANIA, (2016).
Appeal from Labour Courton matters of law- Available remedy if a party aggrieved with the decision of Labour Court on matters of facts-Section 57 of the Labour Institutions Act.
- A party who is aggrieved by the decision of Labour Court may appeal to the Court of Appeal on matters of law only – Section 57 of the Labour Institutions Act [Cap 300 R.E 2006]
- The applicant is barred from appealing against the findings of the Labour Court on matters of fact. The available remedy is to invoke revisional powers of the Court of Appeal of Tanzania.
WILLIAM STEPHEN V.MS LEAH JULIUS, COURT OF APPEAL OF TANZANIA (2014)
Rules of Procedure and Evidence in Ward Tribunals- Circumstances for Retrial.
- Under section 15(1) of the WardTribunals Act, Cap 206 RE2002 the Ward Tribunals are not bound by any rules of evidence or procedure applicable to any court.
- In general, a retrial may be ordered only when the original trial was illegal or defective.
- Each case must depend on its own facts and an order for retrial should only bemade wherethe interests of justice require.
MR. MATHIAS ERASTO MANGA VERSUS M/S SIMON GROUP (T) LIMITED, COURT OF APPEAL OF TANZANIA (2014).
Balance of Probability Standard Meaning- Corroborative Evidence in Civil Cases- in Civil Cases the proof is on evidence available on records.
- The balance of probability standard means a court is satisfied an event occurred if the court considers that, on the evidence the occurrence of the event was more likely than not.
- In civilcasesasa rule no corroboration is required to prove any allegation. What is required of any party in suchcases is to prove her case on a balance of probabilities.
- The yardstick of proof is the evidence available on recordand whether it tilts the balance one way or the other. Departing from this yardstick by requiring corroboration as the trial Court did is going beyond the standard of proof in civil cases.
UNIVELER TANZANIA LTD V. BENEDICT MKASA trading AS BEMA ENTERPRISES THE COURT OF APPEAL OF TANZANIA (2016).
Parties are bound to the contractual clauses- Courts are not allowed to re-draft clauses in agreements.
- Once parties have freely agreed on their contractual clauses, it would not be open for the courts to change those clauses.
- It isup to the parties concerned to renegotiate and to freely rectify clauses which theyfind to be onerous.
- It is not the role of the courts to re-draft clauses in agreements but to enforce those clauses where parties are in dispute.
AMOSI SHANI AND PETER KIULA V. JUMANNE JUMA, COURT OF APPEAL OF TANZANIA [2015]
When the Respondent does not appear on hearing of appeal – Rule 80(6) of the Court of Appeal Rules 2009. – visual identification requirements to be shown – police should conduct an identification parade –
- If on the day fixed for the hearing of an appeal the respondent does not appear in person or by his advocate, the appeal shall proceed, unless the court sees fit to adjourn the hearing. Rule 80(6) of the Court of Appeal Rules 2009.
- If the witness is relying on some light as an aid of visual identification he must describe the source and intensity of that light
- The witness should explain how close he was to the culprit (s) and the time spent on the encounter
- The witness should describe the culprit or culprits in terms of body build, complexion, size, attire, or any peculiar body features to the next person that he comes across and should repeat those descriptions at his first report to the police on the crime who would in turn testify to that effect to lend credence to such witness’s evidence.
- Ideally, upon receiving the description of the suspect(s) the police should mount an identification parade to test the witness’s memory, and then at the trial the witness should be led to identify him again.
VIJAY SHANTILAL CHOHAN V.ABDUL SHAKULE HALDAY & ILALA MUNICIPAL COUNCIL, COURT OF APPEAL OF TANZANIA [2017]
Costs to follow the event when the court does not direct the costs to follow the events- advocate to pay costs- Section 30(1) and (2) Civil Procedure Code CAP 33 R.E 2002.
- It is now settled law that costs follow the events. Section 30(1) of the Civil Procedure Code CAP 33 R.E 2002 gives discretion to the court to grant or not to grant costs.
- Subsection (2) of section 30 of the CPC, however, requires that if the court does not direct costs to follow the event, then it has to give its reasons in writing.
- The Court cannot condemn an advocate to pay costs for negligence without giving him/her an opportunity to be heard.
ESHIKAELI N. MAKERE VERSUS TANZANIA TELECOMMUNICATIONS CO. LTD & ANOTHER, COURT OF APPEAL OF TANZANIA [2017]
Computing time under Section 21(1) of the Law Limitation Act- the former case was prosecuted in good faith and due diligence.
- According to section 21(1) of the Law of Limitation Act in computing the period of limitation prescribed in any suit the time during which the Plaintiff has been prosecuting with due diligence other civil proceedings whether in a court of first instance or in a Court of Appeal against the defendant such time shall be excluded.
- In order for section 21 of the Law of Limitation Act to apply and for the time spent in the prosecution of another proceeding to be excluded it has to be shown, inter alia, that other proceeding was prosecuted in a court which from defect of jurisdiction, was incompetent to entertain it.
- Also in order for time to be excluded the Plaintiff must show that he was prosecuting the former suit in good faith and with due diligence and that the two proceedings were founded on same cause of action.
EMMANUEL NYAMBI V. RAMADHANI SALIM, COURT OF APPEAL OF TANZANIA [2015]
Application for leave to appeal to the Court of Appeal – Time limitation to seek leave – When the Applicant withdraws an application for leave with liberty to refile.
- The Applicant filed in the High Court an application for leave to the Court of Appeal then successfully sought an order to withdraw it with liberty to refile. He refiled it without seeking an extension of time as it was beyond 14 days. The application was granted by the High Court. When the Appeal came before the Court of Appeal it was held that the matter is incompetent before it as the leave was granted when the application was filed beyond 14 days. The days should be calculated from the date of judgment and not otherwise.
- High Court had no jurisdiction to entertain the appellant’s belated application for leave to appeal filed beyond the period of 14 days prescribed under Rule 45 (a) of the Rules. For that reason, the proceedings pertaining to the application in question and the resultant order granting the appellant leave to appeal to the Court of Appeal were a nullity.
YAHYA ATHUMANI KISSESA V. HADIJA OMARI ATHUMAN, AND OTHERS, COURT OF APPEAL OF TANZANIA [2017]
Meaning of dismissing and striking out– incompetent suit, application or appeal – entertaining suit appeal or application on merit
- There is a clear line of distinction between “dismissing” and “striking out” an application, a suit or an appeal as the case may be.
- “Dismissing” an application, suit or an appeal as the case may be, would connote that the matter has been entertained on the merits.
- “Striking out” an application, a suit or an appeal, as the case may be, would imply that there was no matter before the court to be entertained on the merit.
