LAW SCHOOL OF TANZANIA

ORAL EXAMS BRIEF NOTES

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CONCURRENT JURISDICTION.
- The jurisdiction several different tribunals each authorized to deal with the same
subject matter.
- Authority shared by two more legislature judicial or administrative officers or bodies
to deal with the same subject matter.

2. TREASON:
- The offence of attempting by overt acts to overthrow the government of the state to
which the offender owes allegiance.
- The offence of betraying the state into hands of a foreign (enemy)

ELEMENTS
(a) adherence to the enemy
(b) Rendering him aid of comfort.

Section. 39 CAP 16
- Murdering or attempt to murder the president
- Levying war against the United Republic of Tanzania.

Amounts to treasons and a person found guilty of that offence is liable to suffer death.
Also
- Forming an intention to instigate, persuade counsel or advise any person or group to
effect any of the following acts, is also guilty of treason.

(a) Death of the president or wounding

(b) Overthrow the government
(c) Intimidation of the executive legislature or the judiciary
and manifest that intention by publishing.
(d) Is guilty of treason.

3. NEGLIGENCE:

The omission to do something, which a reasonable man, guided by those ordinary

considerations, which ordinarily regulate human affairs, would do.
Element of negligence
- Duty of care
- Breach of Duty
- Damages as a result of Breach of duty.

4. INQUEST (INQUEST ACT,1980)

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 -The inquiry by a coroner or medical examiner, sometimes with the aid of the jury , into
the manner of the death of any who has been killed or has died suddenly under unusual
or suspicious circumstances.
- A body of men appointed by law to inquire into certain matters.

5. CORONER (INQUEST ACT,1980)

Public official with duty to make inquiry into the causes and circumstances of any death
which occurs through violence or suddenly and with marks of suspicion.

6. PRESUMPTION:
- An inference in favour of a particular facet
- Is an assumption of fact the law requires to be made from another fact or group of
facts found or otherwise established in the action.
- Is a rule of law, statutory or judicial by which finding of a basic fact gives rise to
existence of presumed fact until presumption is rebutted.
NB: The words “presume”: To assume before hand or to believe or accept upon probable
evidence.

7. PROOF ON BALANCE OF PROBABILITIES.

A set of probabilities grounded in the factual and practical consideration which govern
the decision of reasonable and prudent and is more than more suspicion but less than
the quantum of evidence required for conviction.

8. PROOF BEYOND A REASONABLE DOUBT

Such proof as precludes every reasonable hypothesis except that which if tends to
support and which is wholly consistent with defendants guilty and inconsistent with any
other rational conclusion.

9. ACCOMPLICE
- One who knowingly, voluntarily and with common intent united with the principal
offender in the commission of a crime.
- One is liable as an accomplice to the crime of another if the gives consistence or
encouragement of fails to perform a legal duty to prevent it with the intent thereby to
promote of facilitate commission of the crime.

10. DEFAMATION.
- An intentional false communication either published or publicity spoken that injures
another persons reputation or good name.

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 - That which tends to injure reputation to diminish the esteem, respect, goodwill or
confidence in which the plaintiff is held.

11. DYING DECLARATION

- An unsown statement or narration of facts made by party to transaction or by one
who has an interest in the existence of the facts recount also similar statement made
by a person since deceased which are admissible in some cases.
- Statements made by a person since deceased are admissible to prove the cause and
circumstances of the man’s death.

12. LIMITATION ACT [1971] NO. 10:

- Statements of the government setting maximum time periods during certain actions
can be brought or rights enforced.
- After time period set out in the applicable statute limitation has run, no legal action
can be brought regardless of whether any cause of action ever existed.

13. INTERROGATORIES O.xi OF CPC

- A set series of written questions drawn up for the purpose of being propounded to a
party witness or other person have information of interest in the case.

14. AFFIDAVIT O.xix OF CPC 1966:

- A written or printed declaration or statement of fact, made voluntarily and confirmed
by the oath of affirmation of the party making it, taken before a person having
authority to administer such oath or Affirmation

The CPC 1966

The Oath (Judicial Proceeding) and Statutory Declaration Act 1966.
Notary Public and Commissioner for Oath Ordinance.

15. NOLLE PROSEQUI S.91 OF CPA 1986:

“Will not further prosecute” the voluntary withdrawal by the prosecuting

Attorney of present proceedings on a criminal charge either as to some accused person or
all together.

16. CONFESSION

A voluntary statement made by a person charged with commission of a crime,

communicated to another person, wherein be acknowledges himself to be guilty of an
offence charged and discloses the circumstances of the act the share and participation which
be had on it.

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Kinds of Confessions:

(i) Judicial – are made before a magistrate or court in the due course of legal proceedings
(ii) Extra – judicial made out of court or to any person official or otherwise .

17. ADMISSION:

- A voluntary acknowledgement made by a party of the existence of the truth of certain facts
which are inconsistent with his claims in an action.

NB: What is the difference between Confession and Admission?

- A confession is a statement admitting or acknowledging all facts necessary for
conviction of the crime.
- While admission is an acknowledge of a fact or tending to prove guilty which falls
short of an acknowledgement of all essential elements of the crime.

18. PREROGATIVE ORDERS

- Judicial orders issued only upon cause shown, they involve direct inference of public
administrative bodies from infringing the rights of individuals.

The orders are:

- Injunction.
- Certiorari.
- Mandamus.
- Prohibition.

19. ROGUES AND VAGABONDS:

Rogue: an idle disorderly person a trickster, a wondering beggar.

Vagabond: A homeless person wonderer without official livelihood.

20. BAIL:

- To procure release of one charged with an offence by insuring future attendance in court
and compelling him to remain within jurisdiction of the court.
To set at liberty a person arrested or imprisoned, on security being taken for his appearance
on a day and place certain which security is called bond because the person arrested or
imprisoned is delivered into the hands of those who bind themselves for his forthcoming.

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21. STEPS, WHICH MUST BE TAKEN IN APPEALING TO THE COURT
OF APPEAL FROM A DECISION OF THE HIGH COURT IN EXERCISE OF
ITS ORIGINAL JURISDICTION.

Refer: S.4 of Appellate Jurisdiction Act, 1970.

(i) Filling of notice of appeal with the High Court Registrar.
See rule 76(1) Tanzania Court of Appeal, Rules, 1979.
(ii) Serve the notice of appeal to other who are affected by the intended appeal within 7
days from the date of filing See Rule 77 (1) CAR.
(iii) Instituting of the appeal within 60 days the date when the notice of appeal was lodged.

See Rule 83(1) CAR. One needs to lodge the following:

(a) Memorandum of Appeal
(b) The Record of Appeal
(c) Prescribed fees.
(d) Security for costs of the appeal.

22. DOCTRINE OF RECENT POSSESSION ON 311 CAP 16

- Where one is found with an article that is recently reported to be stolen, that may be held
to have stolen it.

Saidi Mkuyu v. R. (1972) No.41 [Kindly J’s doctrine]

(i) An accused person is found in possession of an article reported stolen
(ii) A presumption is raised that the accused person came into possession of that article by
stealing it or knowing it to have been stolen.
(iii) This presumption is reputable and it lies upon the accused person to give a probable
explanation showing that he came by the article innocently.

23. COMPLAINT:
- An allegation that some person known or unknown has committed or is guilty of an
offence.
- It is a statement of facts surrounding an allegation that a crime has been committed.
- Complaints must be made in writing.
If the complaint is made orally the magistrate has to reduce it in writing.

24. HOW ARE THE CRIMINAL PROCEEDINGS COMMENCED?

- By presentation of the complaint before the magistrate and then drawing a formal charge
or
By presenting the accused/suspect before the magistrate and then drawing a formal charge.
NB: The court may reject the complaint and charges if it does not disclose the offence.

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25. WHAT IS A CHARGE.
It is an accusation, or an indictment document. it is sometimes known as information, which
is a legal document for commencing criminal cases in High Court.
The purpose of the charge:
- Inform the accused about the accusation and the law applicable
- Avoid the accused to be tried by surprise.
- Enable the accused prepare his defence.

26. COUNTS.
Number of offences one may have committed and put under one charge in criminal case.

27. MISJOINDER OF COUNTS/OFFENCES:

-Where two or more counts are wrongly joined, counts can be joined if they are founded on
the same basis or there must be a nexus between the offences joined.

NB: A mis-joinder of counts is not fatal unless if it has occasioned failure of justice. The
irregularity is curable.
: Mis-joinder of counts arises where offences which cannot be joined are wrongly
joined that is are not founded on the same grounds.

28. DUPLICITY:
This is where different offences are merged to make one count. e.g housing breaking and
defilement.

NB: Duplicity can be fatal depending on whether it has occasioned failure of justice e.g the
accused did not understand the charge.
- It was impossible to conduct trial.

29. WHAT ARE REMEDIES WHEN CHARGE IS DEFECTIVE.

(i) Amendment of charge:
- The accused must be called to plead to the altered charge
He has a right to recall witness who has already given evidence.
(iii) Withdrawal of charge and re-institution.
Section 98 (a) CPA: The move must be taken before an accused is given an
opportunity to defend himself.
(iv) Nolle prosequi: The prosecution stops the prosecution but retains the
right to re-institute a proper charge
(v) Dismissal by court because of :-Defective charge
:-No prima facie Case.

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30. WHAT DO YOU UNDERSTAND BY THE TERM “BAIL” “BOND” AND
“RECOGNIZED”:

i) Bail: is an agreement between the accused and his sureties if any and the court that
the accused will pay a certain sum of money fixed by the court should fail to appear
to attend his trial on a specified date.

ii) Bond: Is a written agreement or promise with the force of law between the accused
(and his sureties if any) and the court if any) that the accused will enter appearance
on the specified date.

iii) Recognizance: is an obligation or bond acknowledged before court of law or

Authorized officer and afterwards enrolled in a court of law with the object of
guaranteeing that the person bound i.e the converser or cogniser will appear in court
when so directed.

NB: A surety is a pledge by another person guaranteeing that if the accused person does
not appear before the court he will pay a certain sum of amount to the court. The
sum pledged is known as recognizance.

31. WHAT IS A PLEA – 228 CPA.1985:

A plea is a reply to the charge about its truthfulness.
The accused may plead either:
(a) Guilty : S.228 (2) CPA
(b) Not guilty S. 228 (3) CPA
(c) Autre fois convict: S.228 (5) CPA
(d) Autre fois acquit: S. 228(5) CPA
(e) Pardon S.228(5) (a) (i) CPA
(f) Lack of jurisdiction.
NB: - The plea must be personal, free, voluntary and by a fit person
- The plea is personal because nobody is allowed to plead on behalf of another person,
unless
i) It is a case against corporate bodies S.109 CPA
ii) A warrant offence (punishable by fine or six months imprisonment) S.193 CPA.
iii) The accused stands mute CA plea of not guilty is entered on his behalf).
iv) When accused is tried in his absence.
v) An involuntary plea is void in law.
32. WHO IS A REFRACTORY WITNESS – S.199 CPA:
It’s a kind of a witness who:
(a) Refuses to give evidence on Oath or Affirmation or refuses to take an Oath of
affirmation.
(b) Refuses to answer questions through Affirmation or Oath.

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 (c) Refuses or neglect to produce any document or thing which he is neglecting to
produce.
(d) Refuses to sign his depositions without sufficient reasons. such a person may be
to prison for a period of 8 days and the trend may repeat until he consents to do
what he is required of him.

33. WHAT IS A HOSTILE WITNESS-S.163 OF TEA:

Is a kind of witness whose testimony discloses adverse to the party calling and
examining him.
Incase law (Mketo v.R) 1952 TLR 232 a witness may be declared to be hostile
after a formal application by the examining party for leave to treat him as hostile
if thee applicant is successful the witness is declared hostile and may be subjected
to changes of perjury.

34. POSSIBLE DEFENSES WHICH MAY BE PLEADED BY ACCUSED

PERSON:
(i) Alibi
(ii) Lack of actus reus and men rea.
(iii) Bona fide claim of right – S. 9 CAP 16.
(iv) Mistake of fact –S.11 CAP 16.
(v) Insanity –S.13 CAP 16.
(vi) Intoxication –CAP 16 S.14
(vii) Immaturity age S.15 CAP 16 (in carnal knowledge)
(viii) Immunity S.16 for judicial officers –Cap 16.
(ix) Compulsion – S-1.17 CAP 16.
(x) Defence of person and property – S.18 CAP 16.
(Self defence to other).

35. NAME THE PUNISHMENT THAT MAY BE INFLICTED BY

COURT IN CRIMINAL LAW PROCEEDINGS:
(i) Death
(ii) Imprisonment – S. 27
(iii) Corporal punishment – S. 28 and corporal.
(iv) Fine
(v) Forfeiture – S.30
(vi) Payment of compensation – S.31.
(vii) Finding security to keep the peace and be of good
Behavior or to come for judgment –S.33 Cap 16.
(viii) Cost –S.32.
(ix) Conditional discharge S.38 CAP 16 (but should not
commit offence with 12 months)

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36. WHAT IS THE MEN’S REA OF ANY OF THE FOLLOWING
OFFENCE:
(i) Murder: “Malice aforethought” i.e. an intention to cause death or cause grievous
bodily harm or knowledge that the Act will cause death.
(ii) Uttering a forged document. Men’s rea: knowingly and fraudulently see S.342 of
CAP 16. “ Any person who knowing and fraudulently utters a false document is guilty of an
offence.”

NB: Forgery is making a false document with intent to defraud or decent.

(iii) malicious damage to property: men’s rea-malice
(iv) Forgery: men’s rea intent – S. no. 342 Cap.16above
(v) Manslaughter: No men’s rea.
(vi) Indecent assault: S.9 act No. 4/1988, CAP 16.
- Intention.
- Intention to cause Sexual annoyance to any person.
(vii)Treason:
- Intention
- Intention to murder the president to levy against the state.

(vii) Misprision of treason:

- Knowledge: knowingly that any person is likely to commit treason and
not giving information thereof or does not prevent.

(ix)Attempted murder:
- Intention.
- With intent unlawfully to cause the death of another

(x)Common assault.
No men’s rea.

(xI) Incest. S. 19, Act No. 4/98 (by male

-Knowledge: Any person who commits sexual intercourse
with female person who is to his knowledge is his grand,
daughter, sister or mother.

(XII) Incest be female – S. 20

-Consent and knowledge: Any female person of about
18 who with consent permits her grandfather, brother or
son to have carnal knowledge or her knowing him to be
her grandfather/brother or son.

(Xiii) Unlawful wounding – S. 228, CAP 16.

Intention and without intention.
(a) Unlawful wounding: no intention, no men’s rea.
(b) With intent: to wound or annoy.

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 (Xv)Perjury: S.102.
Knowledge: Any person who knowingly gives false testimony (in
judicial Proceedings)

(Xvi)Attempted rape: S. 8 Act, No 4/98. There is men’s rea but no actus veus. - Any
person who attempts to commit rape is guilty of.

Xvii) Uttering words religious falling S.129.

- Deliberate intention – Dibagular’s cases
- Any person who with a deliberate intention wounds the religious
feelings of any person.

(Xviii) Vagabond 177 CAP 16 (Rogues):

No men’s rea.

(XiX) Contempt of court – S.144.

No men’s rea: Any person who obstructs the court proceedings or
any disrespects.

(xx) Robbery – S. 28
Men’s rea- See theft.
Intention: to deprive permanent

(xxi) Obtain goods by false pretence.

Intent to fraud. Any person who by false pretence and with intent to
defraud obtains from any person anything capable of being stolen.

(xxii) Occasioning loss to an employer

Intention/knowledge.

37. WHAT DO YOU UNDERSTAND BY JUDICATURE AND

APPLICATION OF LAWS ORDINANCE? (JALO)
(i) States which law are applicable in Tanzania.
(ii) Gives the High Court with inherent powers
(iii) Gives the CJ with powers to make rules.

38. WHAT DO YOU UNDERSTAND BY LAW REFORM (FATAL

ACCIDENT AND MISCELLANEOUS PROVISIONS):
This is an act to effect miscellaneous reforms in the law relating tocil actions and
for related matters.

39. Define DEFAMATION

Tort defamation involves making a false and defamatory statement about another
without lawful justification.
A defamatory statement is one which injuries the reputation of the plaintiff by lists
tendency to lower his/her in the estimation of right thinking members of society.

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FORMS OF DEFAMATION:
A) LIBEL
(a) The defamation is in permanent form: This includes defamation in the cause
of
(i) Films
(ii) Broadcasting
(iii) Theatre production.
(b) It is actionable per se (i.e. without proof o f damages).
(c) It may be a crime e.g. Sedition.
B) SLANDER
(a) The defamation is in a non-permanent form e.g. in the course speech
(b) It is actionable only on proof of special damage. i.e. an actual pecuniary loss
which the plaintiff can identify and value.

Exception: Slander is sometimes actionable per se when:

(i) Imputing that the plaintiff has committed a crime not punishable by fine alone.
(ii) Imputing that the plaintiff has an existing contagious disease e.g. AIDS
(iii) Imputing that a female has committed adultery or is not chaste.
(iv) Statements calculated to disparage the plaintiff in any office, profession, calling,
trade or business.
(v) It can not be crime.

STANDARD OF PROOF:
The plaintiff must prove:
(a) Statement must be defamatory
- the statement which may bear the meaning which would be imputed by reasonable
persons.
- An innocent may nevertheless to defamatory if it certain an innuendo i.e. an oblique
hint, allusive remark, usually depreciatory.
NB: The essence of innuendo is that statement which may be construed as totally
innocent until it transpires that, from extrinsic evidence on reading between the lines
that the subject of the statement is being defamed e.g. referring to woman as Mrs. X
is innocent without the benefit of the knowledge that X is married to someone else.

(c) the statement must be referred to the plaintiff:

The test is – would a person to whom the statement was published reasonably
think it referred to the plaintiff? A class can not be defamed. It’s individual

(c) the statement must be published:

A statement must be made known to at least one person other than the person
defamed.
A statement is not published unless understood.
Every repetition is a separate and distinct publication which creates a new cause of
action:

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 DEFENCES:
(a) Justification
-Consists of proof that the allegedly defamatory matter was true.
(b) Fair comment.
-Is a comment honestly made on matter of public interest.
Note : The defendant must prove that the statement was comment in one of
opinion and not fact.
:The comment (opinion) must have been made in good faith, believing in its
truth and without malicious distortion.
:The comment must be directed to the conduct of public men
Administration of public institutions.
(c)Privilege
- A privilege communication; may be defined as one in respect of which law holds that the
public interest in free speech overrides public interest wholly or conditionally the private
right to reputation.
- Privilege is of two kinds:
(i) Absolute privilege: not actionable under any circumstances e.g. those statements
made in the house of parliament. Like;
- Reports of parliamentary proceedings
- Judicial proceedings
- Those made by officers of the state.
- Those made by one spouse to another (Husband and wife)
(ii) Qualified privilege: Actionable only on proof of express malice. For a statement to
enjoy qualified privilege there must be:
-Legal moral or social duty to make it an one side
- A corresponding interest to receive on the other.
The following statement enjoys privilege:
e.g - Those made in discharging a duty
- Those made in protecting interest
- Professional communication made between solicitor and client.

APPEALS FROM HIGH COURT

- All appeals from the High Court lies in The Court of Appeal of Tanzania for all
criminal and civil cases (S.5.).
- The law governing appeals to the court of appeal:
(i) Appellate Jurisdiction Act, 1979.
(ii) The Tanzania Court of Appeal Rules 1979.

CIVIL CASES PROCEDURE

(i) File notice of Appeal: r 75
- Serve the same within 7 days to other party (Respondent to be)

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 - A party served with the notice of appeal shall within 14 days file a notice of address
of service and serve the same to the intended Appellant within 14 days.
(ii) Apply for the copies of the proceedings in the high court within 30 days.
(iii) If the nature of an appeal requires leave to appeal:
Application for leave may be lodged informally or by chamber summons within 14
days.
(vi) Lodging of the appeal i.e. within 60 days from the date notice of appeal was
lodged.

DOCUMENTS TO BE LODGED:
(a) Memorandum of Appeal in Quantriplicate
(b) The Records of Appeal
(c) The prescribed fee.
(d) Security for costs for the appeal Rule 89. Record of appeal (Components).

b) CRIMINAL CASES:
(i) Lodge the notice of appeal with the Registrar of High Court within 14 days.
(ii) Where the appeal lies with the certificate of point of law or with leave it is not
necessary to obtain that leave of certificate before filling the notice of appeal.
- The applications must be made without unreasonable delay
- An application may be made informally and ex-parte.
(iii) The Registrar of the High Court shall prepare the Record of Appeal as soon as
the notice of appeal has been lodged.
(iv) The Appellant must lodge the memorandum of appeal within 14 days from
service of the Records of appeal.

THE EFFECT OF FILLING A NOTICE OF APPEAL OR APPEAL.

(a) In criminal matters rule 9.
- suspends execution of death sentence and corporal punishment (automatically)
- If the appeal is lodged, the notice and the appeal does not automatically suspend any
sentence but the court may order someone to be released on bail (this is subject to (i)
above)
(a) In Civil matters:
(i) The notice of appeal does not automatically stay execution
(ii) But upon application the court may order of stay of execution.

WHAT IS THE COMPOSITION OF JUDICIAL SERVICE COMMISSION?

Established under Art.112 of the United Republic of Tanzania Constitution.

Composition
(i) Chief Justice; Chairman
(ii) Attorney General
(iii) Judge of Court of Appeal (who will be appointed by the president).

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 (iv) Principal Judge (High Court)
(v) Two other members: appointees of president.

Disqualification:
*Members of parliament
*Any other person disqualified by other law.

Functions/powers:
(i) Employing judicial officers as stipulated in sub article (2) of Article 113 of the United
Republic of Tanzania – Constitution:
 Registrar of Court of Appeal and his deputy or any class.
 Registrar of High Court and her deputy of any class.
 RM’s and any other magistrates save as Court Martial.
(ii) Disciplinary powers for judicial officers:
(iii) Removal of officials

HOW DO YOU IMPEACH THE PRESIDENT OF UNITED REPUBLIC OF

TANZANIA. ART 46 UNITED REPUBLIC OF TANZANIA CONSTITUTION.

Procedure
1. Motion is presented in the parliament. It will be approved if president has committed
any of the following:
(a) Acting contrary to the constitution.
(b) Contravening ethics for Registration of political parties such as
Remunerations Article 20 (a) of United Republic of Tanzania – Constitution
These are:
(i) Use of force to achieve political goals.
(ii) Break up of the union.
(iii) Exercises his political duties only on one part of the union.
(iv) Exercises his powers undemocratic and or refuses periodic elections
(v) Acts under tribunal, religious and sexual discrimination.

2. Motion be in writing, signed and supported by not less than 20% Members of Parliament.
- Notice be submitted 30days prior the date for presenting the motion.

3. Upon the speaker been satisfied of the compliance of the notice procedure as per
constitution will allow the presenter to present the motion.

4. Speaker will allow the Member of Parliament to vote for………………special committee

of Inquiry.

5. If members of Parliament supporting formation of Inquiry commission are not less than
2/3 speaker shall announce the names of members of committee of inquiry
Members of Committee articles 46 (A)
- Chief Justice
- Chief justice of Zanzibar

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 - Other members appointed by speaker according to the parliament regulations taking
into consideration proportionality of representation of political parties.

6. Once committee is formed President is deemed to be out office ……………………….

Will be excused in accordance with Article 37 (3) (URTC)

- Vice President
- Speaker or
- Chief Justice of Court of Appeal

7. Within…………………… days after inquiry president be heard

8. Within 90 days committee submit report to Speaker.

9. Report be submitted by speaker to parliament

10. Parliament discusses report and gives chance to president to be heard.

11. By vote not less than 2/3 parliament can hold president…………. Or otherwise.

What is Taxation of Costs?

Two processes of ascertaining and charging up the amount of costs fees in an action to
which the party is legally entitled or which are legally changeable.

What do you understand by government proceeding Act.1967

An Act, providing for the procedure of how to sue the government in civil matters Act
No.16. of 1967 Amended b y Government Proceedings (Amendment Act, 1994, Act No. 30
of 1994).

PROCEDURE TO SUE GOVERNMENT

(i) Claimant to submit to the government minister department or officer concerned

a notice of not less than 90 days of his intention to sue the government.
(ii) Notice should specify the basis of his claim against government.
(iii) A copy of his claim to be sent to Attorney General.
(iv) At the expiration of Notice period the suit against the government shall be
brought against the Attorney General.
(v) Copy of the plaint to be served upon government ministry department or officer
that is alleged to have committed the civil wrong on which the suit is based.

Note: All suits against the government be instituted in the High Court.

What is the Procedure of suing local governance?

(I) DISTRICT AUTHORITY
The procedure is laid down under S. 183 of Local Government (District
Authorities Act, 1982, Act 1982, Act No.8 of 1982).

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 (II) URBAN AUTHORITY:
The procedure is laid down under S.92 of the Local Government (Urban
Authorities Act, 1982, Act No. 8 of 1982.

(III) DISTRICT AUTHORITIES:

(i) One Month Notice of intention to commence suit be served upon the
District Authority.
(ii) Notice to state cause of Action, name and place of abode of the intending
Plaintiff and the relief sought.
(iii) Notice summons or any document to be served to be served on the
authority be served by delivery or by registered mail addressed to
chairman or chief executive officer of the authority.

Jurisdiction: Any court depending on the subject matter.

What is the procedure of suing specified corporation?

Application for leave to use the specified corporation is field in the High Court (S.9,
CAP .25):
 Chamber Summons.
 Affidavit
 Intended claim (statement claim)

Copy of the application to be served upon the specified corporation and PSRC under S.43 (i)
(a) (b) Public Corporation Act. Because PSRC becomes receiver.

After getting leave from the High Court you file the suit – state in the claim that leave was
sought and granted.

EVIDENCE ACT –
What is the difference between compellable and competent witness S.127 (T.E.A).

A) Competence:
The presence of those characteristics or the absence of those disabilities which
render a witness legally fit and qualified to give testimony in court of justice.
S.127, TEA – All persons are competent except those that the court considers
cannot answer questions put to them for reasons of:
Extreme old age
Tender years
Disease (of body mind)

B) Compellability
Power of the court to summon or urge forcefully any person to appear as witness
in court
All persons are compellable witnesses. Those expressly excluded by law.
 Privileged by the law
 Diplomats

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  Husbands and wife except in offences under chapter XV of pen al Code
(Amended by SOSPA – 1998 and LMA – 1971).
What is a dying declaration?
-A statement given by a person as to the cause of his death Corroboration highly
required supporting conviction.
-S.34 (a) FEA the statement (dying declaration) is admissible

What is hearsay?
Assertion by a witness of what other person has told him or her concerning what
(that other) has perceived.
It is exception to two general rules of (Parole Evidence) that evidence needs to be
direct.
S.62 TEA oral evidence needs to be direct.
Circumstances in which hearsay evidence is admissible
S.34 TEA – 1967 Amended by TEA Amendments Act, 19) 1980.

Facts made by:

- Person who is dead or unknown.
- Person who cannot be found
- Who cannot be summoned due to his entitlement to diplomatic immunity privilege
or other similar reasons
- Who can be summoned but refuses voluntarily to appear as witness before the court.
- Who has become incapable of giving evidence
- Whose attendance cannot be procured without an amount of delay or expense if the
court deems unreasonable
Therefore dying declaration falls with hearsay evidence.

WHEN DOES A PERSON LOOSE HIS CITIZENSHIP IN TANZANIA

(i) In case of dual citizenship at the age of 18 a person does not renounce the
citizenship of the other country (S.7 of the Tanzania Citizenship Act, 1995).
(ii) Renouncing citizenship of United Republic of Tanzania (S.13):
-The declaration may be made by the person of full age and capacity.
- Minister may cause a declaration to be registered and once registered the
citizenship ceases.
-Minister has discretion to refuse registration of declaration if made during war
involving United Republic of Tanzania or if in his opinion contrary to
public policy.
(iii) Deprivation of citizenship of person who exercise certain right in other
countries (S.14):
- This done to persons who are not United Republic Tanzania citizens by
birth
- Exercised by minister if satisfied that a person while a citizen of United
Republic of Tanzania and full age and capacity voluntarily claimed and
exercised in a foreign country any right available to him under the law of that
country being right accorded exclusively to its own citizens

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 - That right is not conclusive to the public good that be should continue to
citizen of United Republic of Tanzania
(iv) Deprivation of Citizen by Naturalization ( S.15) if the minister is satisfied that the
certificate of naturalization of a person who is a citizen by naturalization was
obtained by means of fraud, false representation concealment of any material face.
(v) Deprivation of citizenship when person deprived e.g citizenship elsewhere (S.16)
When a citizen by naturalization:
(a) Was a citizenship of foreign country by virtue of certificate of naturalization or
registration granted to him.
(b) Has been deprived of the citizenship on grounds
S.15): Obtained naturalization certificate by fraud false representation or
concealment of facts
S.15 (2) (a) Shown to be destroyed or disaffected

(c) During war had unlawful communicated or traded with any enemy.
(d) Within 5 years of naturalization been sentenced to imprisonment for a term of not
less than 12cmonths.
(e) Failure to do annual registration for continuous 5 years and has been ordinary
resident of 5 years.

Note: Effect of remuneration, deprivation of citizen is that upon minister making the order
the person ceases to be a citizen of United Republic of Tanzania.

(i) How to attain citizen of United Republic of Tanzania

By Birth for every person
S.(4(1) Who was born in Mainland Tanzania or 2’ Before union day and was
immediately before union day citizen of Tanzania or Zanzibar shall be deemed to
have become citizen by birth
Any person born in the United Republic of Tanzania on or after Union day is
deemed to be citizen of United Republic of Tanzania
(ii) By naturalization or registration.
S.4 (2) For every person born outside Tanzania or Zanzibar before Union and was
immediately before Union day a citizen by registration or naturalization either in
Tanzania or Zanzibar and shall on the Union day be deemed to have continued be
a citizen by registration or naturalization as the case may be .
(iii) Persons born outside United Republic of Tanzania on or after Union day who’s
either of his parents is a citizen of United Republic of Tanzania otherwise than by
descent shall become and continue to be citizen by birth.

Definition: Naturalization is the process which a person acquires nationality after birth
and becomes entitled to privileges.

Tell the council on the remedies the party has under the following;
(i) Appellant who filed at the High Court and the appeal is dismissed for want
of prosecution.
- Circumstances for dismissal of the appeal:

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 O.xxxix Rule 11 of [CPC]
 The court is empowered to dismiss the appeal when its fixed for hearing and
the appellant do not enter appearance.

O.xi Rules 17 (1) OF [CPC]

 At the day fixed for hearing or any adjoined day for hearing, appellant does
not appear.

Remedy available at the appellant: O.xxxix Rule 19[CPC]

- He may apply to court for re-admission of the appeal
- If proved that non-appearance was due to sufficient cause, the court shall therefore
admit the appeal on such terms as to cases or otherwise as it thinks fit.

Note: The appellant has to apply for re-admission by way of

Chamber Application supported by Affidavit.

(ii) A judgement is entered ex-parte after the defendant’s failure to appear

- Circumstances under which the court may enter ex-parte judgment is failure to
appear
- Failure to appear by defendant O.ix Rule 6. [CPC]

Note (a) if summons issued was for filing the written Statement of
Defence, court may proceed ex-parte, ex-parte hearing. (If at the High Court)
(b)If summons issued was for appearance court may enter
judgment for the plaintiff.

Remedy available to the defendant:

O.IXR. 13 [CPC] The defendant may apply for setting aside tat judgment
- Reasons that the court may consider positively in setting aside judgment.
 Summons not dully served
 Defendant was prevented by sufficient cause from appearing when the suit
was called for hearing
May appeal against that ex-parte judgment
S.70 (2) CPC) & S.4 1(a) Appellate Jurisdiction Act, 1979.

(iii) The defendant fails to appear on the date the suit is set for mediation and
the plaintiff is given judgment on his favour
- Generally the law in CPC 1966 as amended by GN No. 422194 – Civil
procedure code (Amendment of Schedules) Rules 1994, under O.VIII A
does not empower the court to enter judgment when a party to mediation
fails to enter appearance at the conference.
- According to order VII A Rule 5 if a party fails to attend the Conference,
the court is required to make orders as it deems fit including the order for
costs.

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 - According to the Court’s decision the court is required to record the
mediation has failed and consequently forward the respondents file for re-
assignment.

(iv) On the date set for mention suit is dismissal for non-appearance of both
parties.
The plaintiff may apply for the restoration of the suit in case he has
sufficient grounds to convince the court – S.95 of CPC Act. 1966. See
also Order 9, Rule 3 of the CPC

Order IX Rule 4 of [CPC]

i) May bring a fresh suit but subject to the law of limitation
ii) May apply for an order to be set aside the dismissal order

How do you execute a money decree?

- Execution of decree is the legal process of enforcing rights conferred to the judgment
creditor by a decree, usually seizing and seizing and selling property of the judgment debtor
O.XXI. r.28 of [CPC] -Decree for payment of money
Every decree for the payment of money, including a decree for the payment of money as the
alternative to some other relief, may be executed by the detention as a civil prisoner of the
judgment debtor or by the attachment and sale of his property, or by both:
Thus modes of executing Money Decree are as follows:
(1) Detention of judgment debtor as civil prisoner
(2) Attachment and sale of his property
(3) Do both (1) & (2) above
(4) By issue of a garnishee order
(5) Appointment of receiver.

WHAT WILL BE THE CONSEQUENCES WHEN THE ACCUSED PLEADS:-

(i) Self defence
It is a defence of Criminal liability; it is protection of oneself or property against
some injury attempted by another

Requirements:-
One who is not an aggressor must be in an immediate danger of unlawful bodily
harm from his adverse.

 The use of such force must be that which is necessary to avoid such danger S. 18
– of Penal Code
 The person who pleads self defence successfully shall be acquitted.
 The person who pleads self defence unsuccessfully where it is found that he used
excessive force shall be guilty of manslaughter (s.18B (3) of Penal Code ) incase
of murder.

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 (ii) Provocation
A conduct or actions on the part of one towards another as tends to arose rag,
resentment or fury in the latter against the former and thereby cause him to do
some illegal act against or in relation to the person offering the provocation.

Requirements for provocation to reduce murder to manslaughter

(i) Must be of such character as will in the mind of average reasonable man,
stir resentment likely to cause violence, observe the reason and lead to
acting from passion rather than judgment
(ii) There must be a state of passion without time to cool pressing
defendant/accused beyond control of his reason
(iii) Provocation carries with the idea of some physical aggression or some
assault which suddenly arouses heat and passion in the person assaulted.
(iv)
Incase of murder person who successfully pleads provocation MANSLAUGHTER
 In other case a lesser (lenient) sentence shall be appropriate R.v.Johali
Ismail (1974) LRT. Court laid 4 conditions when provocation raised
defence to a charge of murder:’
(i) The provocative act pleaded must be wrongful act or insult.
(ii) The provocation act or insult be such gravity,
(iii) Killing be done in the heat of a passion and
(iv) The means of relation must be proportional to the degree provocation.

Intoxication:
A defence against criminal liability whereby reason of taking intoxicants person does
not have the normal use of his physical or mental faculties thus rendering him
incapable of acting in the manner in which an ordinary prudent and cautious man, in
full possession of his faculties using reasonable care would act under like conditions.

Requirements for defence of intoxications:

(i) The state of intoxication must be involuntarily produced.S.14. Penal Code.
(ii) Such state rendered such person substantially incapable of knowing or
understanding the wrongfulness of this conduct and conforming his conduct to
the requirement of law S.14 Penal Code.
 Successful plea of intoxication leads to discharge.

Insanity
A defence against criminal liability it denotes the degree of mental illness which negates the
individual’s legal responsibility or capacity.

Test used by Court:

A person is not responsible for Criminal conduct if at the time of such conduct as a result
of mental disease or defect he lacks substantial capacity either to appreciate the criminality of
his conduct or confirm his conduct to the requirements of law. Under this test there must
be:

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  Sufficient casual link between defendant mental disease or defect and his inability
to control his behavior. S.13 Penal Code..

Person who successfully pleads insanity will be Acquitted

WHAT IS MONEY LAUNDERING?

Term used to describe investment or either transfer of money flowing from racketeering,
drug transaction and other illegal sources into legitimate channels so that its original source
cannot be traced.

S.71 of proceeds of Criminal Procedure Act. No 25/91.

Making or receiving of a gift under the money laundering transaction is an offence.

Ingredients:
A.71 (30 and (b)
(i) Direct or indirect engagement in transaction involving removal into or from United
Republic of Tanzania of money or other property being the proceeds of crime.
(ii) Knowing or ought to have known that the money or property was derived directly or
indirectly from of unlawful activity.

Standard of Proof: S.75 Balance of Probability.

SEXUAL HARASSMENT: S. 138 SOSPA

Any person who with intention Assaults or by use of Criminal offence sexually harasses
another person or by use of words or actions causes’ sexual annoyance of harassment to
such other person commits the offence of sexual harassment.

Punishment- 5 years imprisonment of fine 200,000/= or both.

WHAT IS LIBEL?
Found under Newspaper Act.1976, Act.No.3/70.

S. 38 any person who, by print, writing, effigy or by any means otherwise than solely by
gestures spoken words or other sounds.
- Unlawfully publishes any defamatory matter,
- With intent to defame that other person.

Shall be guilty of the offence to that other person.

What is defamatory matter?

- Matter likely to injure the reputation of any person by exposing him to hatred
contempt of ridicule.
- Or likely to damage any person or his profession or tracle by an injury to his
reputation.

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 Note: It immaterial whether at the time of publication of defamatory matter, the person
concerning whom such matter is living or dead.

Proof:
- Statement defamatory
- Referred (was directed) to the plaintiff.
- Published.
- Slander is non-permanent for

Actionable when:
- Imputes that plaintiff has committed a crime not punishable by fine alone.
- Implies that the plaintiff has existing contagious disease
- Imputes that a female has committed adultery or it is not chaste.
- Statement to disparage the plaintiff any profession calling trade or business.

WHAT IS THE DIFFERENCE BETWEEN ADVOCATES COMMITTEE AND

COUNCIL FOR LEGAL EDUCATION?

Note: Both are established by Advocate’s Ordinance. CAP 341.

(a) Advocate Committee; S. 4 of the Ordinance

Composition:
- Judge of the High Court
- Attorney General’s Chamber or DPP.
- Practicing Advocates by Tanganyika Law Society

Functions/Power:
- Hear and determine application by advocate to be removed from the roll.
- Hear and determine application by any person to remove name of advocate from the
roll.
- To hear and determine any allegation of misconduct made against any advocates from
by any person.
- Direct removal of advocate from the roll.

24
 - Admonish/warn advocates.
- Suspend advocate from practicing
- Make rules (with approval of CJ).

S. 24: If an advocate is aggrieved by the decision of council he may within 30days appeal to
the High Court against such decision and shall be heard by full bench of High Court
composed not less than 3 judges.

S.28: May also apply to the High Court for order to set aside the order or reduce period of
suspension or for re-admission.

Council for Legal Education established by S.5A

Composition: 5A. Establishment and procedure of Council Act No. 16 of 1963 s. 4

(1) There is hereby established a Council of Legal Education which shall consist of–
(a) The Chief Justice or his representative;
(b) The Attorney-General or his representative;
(c) The Dean of the Faculty of Law of the University of Dar es
Salaam or his representative; and
(d) Two practicing advocates elected by the Law Society.

(2) The members of the Council elected by the Law Society shall hold office for such
period, not exceeding three years, as the Law Society may determine and shall be eligible for
re-election.
(3) The meetings of the Council shall be held at such times and places as the
Chairman may determine.
(4) At any meeting of the Council three members thereof, of whom one shall be
either the Chairman or the Attorney-General or his representative, shall constitute a quorum.
(5) Questions coming before the Council shall be determined by a majority of votes
of the members present and voting but the Chairman shall have no casting vote.
(6) Subject to the provisions of this section the Council may regulate its own
procedure.

Functions of Council Act No. 16 of 1963 s. 4

The functions of the Council shall be to exercise the functions conferred upon it by
or under this or any other law and to exercise general supervision and control over legal
education in Tanzania for the purposes of this Act and to advise the Government in relation
thereto.

POWERS OF THE DPP:

DPP is established under S.89 CPA. Powers S.90 CPA
(i) To institute and undertake criminal proceedings against accused persons before any
court save for court martial.
(ii) S.90: (i) 9b) to take over and continue any criminal proceeding which were instituted
and undertaken by other persons or authorities.

25
 (iii) May discontinue any criminal proceedings which where instituted or not instituted or
undertaken by him by way of Nolle prosequi;
(iv) By withdrawal of charges.

Consent in institution of some criminal proceedings:

(i) Incest
(ii) Witchcraft
(iii) Economic offences
(iv) Terrorism.
(v) Sedition.
(vi) Offences by foreigners in territorial water S.94 CPA
(vii) Drugs worth more than 10 million

WHAT IS INNUENDO?
Its is a statement which is indirectly defamatory therefore libelous
It is a defamatory statement discovered defamatory after construing it or passing between
the lines.

Defenses:
- Words not defamatory in themselves.
- Denial of publication.
- Justification.
- Fair comment.
- Privileged communications
- Apology

ABSOLUTE PRIVILEDGED
- Not actionable under any circumstances
- Parliament.
- Spouses communication
- Officers of the state.
Qualified Actionable on proof of express malice.

TO ENJOY QUALIFIED PRIVILEDGE THERE MUST BE :

(i) A legal, moral or social duty to make on one side.
(ii) A corresponding interest to receive it on the other, e.g. Statement in discharging duty:
- In protecting interest.
- Professional communication e.g. between solicitor & Client

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 APPEALS:

CIVIL APPEALS
 Appeals from ward tribunal-Ward Tribunal Act.No.7, 1985.

S 8. GENERAL JURISDICTION
(1) The primary function of each Tribunal shall be to secure peace and harmony in
the area for which it is established by mediating and endeavoring to obtain just and amicable
settlement of disputes.
(2) In all matters before it relating to a dispute, a Tribunal shall attempt to reach a
settlement by mediation before exercising its compulsive jurisdiction as provided under this
Act, and may adjourn any proceedings relating to a dispute in which it is exercising that
jurisdiction if it thinks that by doing so a just and amicable settlement of the dispute may be
reached.
(3) Without prejudice to the generality of subsections (1) and (2), a Tribunal shall
have and exercise jurisdiction in relation to all matters and disputes arising under all laws and
directives passed by the appropriate authority, and laws and orders for the time being in
force in relation to or affecting the business and affairs of the ward made or passed by a
local government authority or any other competent legislative authority within the area of
the Tribunal's jurisdiction.

Jurisdiction:
S.10. PECUNIARY JURISDICTION
(1) Notwithstanding measures imposable by a tribunal under section 17, a tribunal
shall, in the exercise of its jurisdiction be limited to the following awards and penalties–
(a) In criminal matters, a fine not exceeding ten thousand shillings;
(b) in default of payment of a fine which does not exceed one thousand shillings,
the convicted person shall be committed to work on an on-going communal project for not
more than ten days;
(c) in case of default of payment of a fine exceeding one thousand shillings, the
matter shall be referred to the Primary Court for committal of the convicted person to
prison or any other appropriate action under the law;
(d) in civil matters, awards not exceeding ten thousand shillings.
(2) Subject to section 19, the power to commit persons to imprisonment under this
Act shall vest in Primary Courts.

 [In land matters the pecuniary jurisdiction is 3m (amended by s. 15 of

courts (Land Disputes Settlement) act, 2002, Act. No. 2.]

WHO TAKES MATTERS TO TRIBUNAL?

 Chairman of Village Council.
…or any person may take it to secretary of tribunal.
- Tribunal is not bound to rule of evidence.
Failure to obey order to tribunal – is offence and fine thereto can be imposed or imprisoned.
- Incase of imprisonment the order is to be endorsed by primary court (S.19).

27
APPEALS:-
S. 20 Appeal in writing to primary court:
- Circumstances requiring leave of primary court before appealing.
- Criminals if fine is not more than 500/=
- Civil if not exceeding 800/=

Finality of Appeals from tribunal:

S.20 (3) Finality lies in district court only on point of law otherwise the decision of primary
court final and conclusive.

Land Dispute Settlement Act.20002.

Village Council

Appeal

District Land & Housing Tribunal

Appeal

High Court (land Division)

With leave on point of law

PRIMARY COURT:
- established under S.3 of the MCA 1987

S.7: Coram:
I magistrate & 2 assessors, in every proceeding including a finding

APPEALS
S. 20 appeal by aggrieved person to go to District Court.
- No appeal on own plea guilty
- No appeal of fine of guilty.
- No appeal on fine exceeding 100/= Save with leave of primary court.
- No appeal on issue in the Schedule to minimum sentence act, 1972

MODEL OF APPEAL
S. 20(3) Appeal be by way of petition and be filed in district court within 30days after the
court order judgment.
- District Court shall permit appellant to state the grounds orally.

28
Primary Court requires leave of the court and certificate that point of law is involved in
decision or order.

CAN YOU MENTION THE CASE WHERE ASSESSORS SIT WITH THE
PRESIDING JUDGE?

Murder case:
Q. WHAT IS THE STATUS OF ASSESSORS IN MURDER?
- The trial judge is supposed to involve assessors in whatever he does over the case.
- At the end the judge must sum up and hear their opinion before judging the case
- When it comes to cross – examination the judge must make sure that the assessors are
given an opportunity, if they wish to cross examine the accuser’ witnesses. This helps them
to come up with appropriate opinion.
- Therefore they should participate in very issue.
- Failure to allow assessors to exercise this right renders a trial a nullity.

What is the status of assessors in Primary Courts?

S .7 MCA, 1984
 In every processing in the primary court including a finding. The court is required to
sit with not less than 2 assessors.
 All matters in primary court including a finding in any issue the question of
adjourning the hearing on application for bail, a question of guilty or innocence of
the accused, determine the nature of sentence, assessment of magistrate and assessor
or any of them shall decide by vote of majority of the magistrate and assessors.
 In the event of equality of votes, magistrate has a casting vote in addition to his
alternative vote.
 In proceeding in which customary/Islamic law is in issue or relevant, the court may
and when directed by an appropriate judicial 9officer) authority, shall sit with an
assessor(s) and every such assessor shall be required before judgment, to give
opinion as to the question in issue. The magistrate shall not be bound to confirm the
opinion of assessor.

THE ADOPTION ORDINANCE CAP 335.

- The law that provides for adoption of children –

- It permits adoption orders when two spouse jointly apply for such an order S.312
- To be recognized as husband and wife for the purpose of the Ordinance, the
marriage must be registered pursuant to S. 43 of the law of marriage act.
- There is a requirement for the putative father consent in writing. The consent form
should be duly signed.
- The applicant in case of non-residents, required to apply to the social welfare
Department with his resident permit. No adoption order can be made in respect of
the putative father is supposed to be produced.
- The curator ad litem plays the role of recommending the proposed adoption of the
infant to the petitioner.

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WHICH LAW ESTABLISHES THE LAND DIVISION OF THE HIGH COURT?
(i) S.16 7 (b)of the Land Act.1999.

WHICH LAW ESTABLISHED THE COMMERCIAL COURT?

(ii) Its is established under Rule 5 A of the High Court Registries (Amendment)
- It is a division of the High Court Tanzania though it enjoys a degree of
administrative autonomy.
-
WHAT ARE THE FUNCTIONS OF COMMERCIAL COURT?
- Settling disputes arising out of commercial relations expeditiously and efficiently for
the benefit of all parties involved.
- It streamlines procedure with the aim of facilitating quick resolutions of commercial
disputes where possible by way of mediation or other forms of settlement. Without
necessitating parties to go through trial.

WHAT DO YOU UNDERSTAND BY THE FOLLOWING?

(i) ATTACHMENT BEFORE JUDGMENT 0.XXXVI R.6 CPC.

- The legal process of seizing another’s property in accordance with a writ or judicial
order for the purposes of securing satisfaction of a judgment yet to be rendered.

(II) SECURITY FOR COSTS 0.XXV OF CPC

Payment into court in the form of cash, property or bond by the plaintiff on an
appellant to secure payment of costs if such person does not prevail, required
adequate security when reasoning order or preliminary injunction is issued.

SUSPENDED SENTENCE: S. 368 CPA, 1985:

- A conviction of a crime followed by a sentence that is given formally, but not
actually served.
- Means in effect that the defendant is not required at the time the sentence is imposed
to serve the sentence

It is whereby a person entitled to appeal has entered an appeal and the High Court
subordinate court which convicted or sentenced such person may for reasonable cause:

(i) Be release on bail, with or without sureties pending the hearing of appeal (If is
imprisonment sentence).
(ii) Or execution of sentence be suspended pending appeal (Death sentence).

Oxxi- r 28 OF CPC
Execution: Upon money judgment it means the legal process of enforcing the judgment
usually by seizing and selling properly of the debtor.

MODES: DECREE FOR PAYMENT OF MONEY

(a) By detention as a civil prisoner of the judgment debtor.

30
(b) By the attachment and sale of his property.
(c) Decree for specific movable property.
 By Seizure: If practicable of the movable or share and delivery to the party thereof to
whom it has been.

(d) Decree for specific performance:

 Detention of judgment debtors as a civil prisoner or

 By attachment of his property or by both.

(e) Decree for delivery of immovable property when in occurring of a tenant.

 Delivery be made by court order for affixation of a copy of a warrant in some
conspicuous place on the property decree:
(f) Decree for reinstitution of conjugal rights Rule 31:
 Court may order judgment debtor to make periodical payment as may be if court
thinks fit.

Act No. 7 of 2001

The act makes provisions in pursuance of Article [131 of the constitution. The provisions
are in relation to the functions privileges and other matters of human rights and good
governance.

Functions of the commission: S. 6 (!)

(a) To promote protection and preservation of human rights and other duties to the
society in accordance with the constitution and other law of the land.
(b) To receive allegations and complaints in the violation of human rights.
(c) To conduct inquiries into matters involving violation of human rights and
contravention of the principles of administration of justice.
(d) To conduct research into human rights, administration of justice.
(e) To conduct research into human rights, administrative justices and good governance
issues and to educate the public about such issues.
(f) When necessary to institute proceedings in court designed to terminate activities
involving violation of human rights or redress the right so violated or control version
of the principles of administrative justice.
(g) To investigate the conduct of any person to whom or any institution to which the
provisions of this (S.6) apply in the Ordinary Course of the exercise of functions of
his office or discharge of functions in excess of authority.
(h) To investigate and inquire into complaints concerning practices or actions by person
holding office in the service of the government, public authorities or other public
bodies including private institution, abuse of power, injustice, unfair treatment of
any person weather complaint whether complainant or not in the execution of the
official duties.
(i) To visit persons and places of detention or relative facilities with a view a view to
assessing and inspecting conditions of person held in such place and making
recommendations to redress the existing problems.

31
 (j) To take steps to secure the remedying correction, reversal or cessation of instance,
referred to items (e),(f),(g) or (h) through fail proper and effective means including
the institution of legal proceedings.
(k) To provide advice to the government or other public organs and private sector
institutions on specific issues relating to human rights and administrative justice.
(l) To make recommendations to any existing or proposed legislation regulations or
administration provisions to ensure compliance with human rights norms and
standards and with the principles of good governance.
(m) To promote ratification of or accession of treaties or conventions on human rights
harmonization of natural legislations and monitor and assess compliance with human
rights standards with united Republic of Tanzania
(n) Under the auspices of the government to co-operate with agencies of the UN, the
OAU, the common Wealth and other bilateral multilateral regional and national
institution of other countries which are competent in the areas of protection and
promotion of human rights and ad administrative justice
(o) To make such measures as it may be appropriate for promotion and development of
mediation and reconciliation among the various persons and institution who come or
are brought before the commission.

COMPOSITION OF THE COMMISSION.

(a) A Chairman who shall be a person qualified for appointment as Judge of the High
Court or The Judge of the Court Appeal.
(b) A vice-Chairman to be appointed on the basis of the principle that where a
chairman hails from one part of United Republic Tanzania, then the Vice Chairman
shall be a person who hails from another part of United Republic Tanzania.
(c) Not more than 5 other commissioners appointed amongst persons who have
knowledge, experience and a considerable degree in matter relating to human rights
law, government politics or social affairs.
(d) Assistant Commissioners:
- Commissioners and their assistants are appointed by the president by acting
upon recommendation of the appointment committee.

POWERS OF THE COMMISSION:

- It has powers to investigate any human right abuses or mal- administration:
(a) On its own initiative or
(b) On receipt of a complaint or allegation under the Act by:

(i) An aggrieved person acting is such persons own interest.

(ii) Association acting in the interest of its members.
(iii) A person acting in the interest of its members
(iv) A person acting in the interest of a group or class of person.

After conducting investigation, the commission has power to:

32
 (a) Causing the complaint between the parties and the finding of the commission to be
reported to the approximate authority or person having control over the person in
respect of whose the act/conduct of in investigation has been carried out by the
commissioners or.
(b) Recommending to the relevant person or authority such measure or requiring that
authority to law such measures as will provide an effective settlement, remedy or
redress.

S. 16: Provides for limitations and restrictions on in investigation:

- The commission is bound by the provision of Act. 46 of United Republic of

Tanzania Constitution and Art 36 of the Constitution of Zanzibar.
- The commission does not have power to investigate or institute legal proceedings
against the president.

Also the commission can’t investigate the following:

S.16 (2):
 A matter pending in a court of law or other judicial tribunals.

 A matter involving dealings or relations between the governments of Tanzania

and the government of any foreign state.

 A matter relating to the prerogative of mercy.

 A matter on which the president direct otherwise in accordance with the

provisions of the United Republic of Tanzania constitution.

 Decision shall have status of recommendations to the appropriate authority or

person in respect of whose act/ conduct an investigation has been carried out.

 Proceedings, decisions any information or document or thing proceed by any

person in relation to an inquiry is privileged in the manner of other proceedings
in court.

 No inquiry proceeding or process of the commission shall be invalid for any

error or irregularity, of lack of jurisdiction.

 No inquiry proceedings of process or report of the commission shall be

challenged, reviewed or quashed or called in question in any court.

S. 17 Immunity to commission’s officers and employees and other persons

authorized by the commission in the exercise of their function unless done in bad
faith.

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 - Sub Sect 4 & 5 does not apply in any of the following:

 Proceedings for an offence under National Security Act.

 Offence Contrary to section 102,103,106 or 109 of the Penal code.
 Proceedings for an offence under sect. 37 of Act No.7/01 (human and Good
Governance Act)

Proceedings for hearing – S.20

 Commission empowered to determine its own procedures.
 It may otherwise be guided by such procedures as may be prescribed by regulations
made under the Act.
 The commission is required to observe the rules of natural justice.
 It is not bound to any legal technical rules of evidence applicable to other
proceedings by courts.

What do you understand by the following terms?

(i) Sentence:
The judgment formally pronounced by the court or judge upon the accused after
his conviction in a criminal prosecution imposing the punishment to be inflicted in
the form of the fine incarceration probation
(ii) Concurrent Sentence:
A Sentence imposed which is to be served at the same time as another Sentence
imposes earlier or at the same proceeding.
(iii) Consecutive Sentence:
It is also known as cumulative sentence

Separate sentences (each additional to the others) imposed up an accused who has
been convicted upon a charge containing several counts.

Suspension Sentence;
This term may either a withholding or postponing the sentencing of a prisoner after
the conviction.
OR
A postponing of the execution of the sentence after it had been pronounced.

See S. 368 of the CPA – Execution of sentence may be suspended pending determination
of an appeal by convict/appellant.

Definite/Fixed/mandatory sentence:
- Sentence set by law with no discretion for the judge to individualize punishment
- The statutes specify the exact penalty that will follow conviction of each offence
Q Which law establishes the land division of the High Court?

Establish under S. 167 of the Land act.1999.

S.167 (b)

34
Q Which law establishes the commercial Court Division?
It is established under Rule 5 of the high Court Registries (Amendment) Rules 1999.

Q Would you mention 5 presumptions

Presumption:
Definition: An inference in favour of particular fact. Is a rule of law,
Statutory or judicial by which finding of a basic fact gives vise to
existence to existence of presumed fact until presumptions are re-
buttable.

These are:
(i) Presumption of death
(ii) Presumption of innocence
(iii) Presumption of legitimacy
(iv) Presumption of validity.

(i) Presumption of Death:

Presumption which arises upon disappearance and construed absences of a person
from his customary location/home for extended period of time. At common law it is
7 years.

(ii) Presumption of Innocence:

It is a principle of criminal law to the effect that the court/state has burden of
providing every element of crime beyond a reasonable doubt and that the accused has
no burden to prove his innocence.
- Whenever it is established that a child was born to woman while she was a lawful wife
a specified man, the party asserting the illegitimacy of the child has a burden of
producing evidence and persuading the trier of the fact beyond a reasonable doubt
that the man was not the father of the child.

(iii) Presumption of survivorship

This Presumption is to the effect that one person survived another applied for the
purpose to determine a question of succession or similar matter in a case where the
two persons perished in the same catastrophe and there are no circumstances extend
to show which of them actually died first except those which the presumption is
found viz difference of age, sex, strength or physical conditions.
(iv)Presumption of Validity:
In patent law, a holder of patent is entitled to a statutory presumption of validity
(genuine).

PROBATION:
Definition:
(i)The evidence with prove a thing, the act of proving, proof trial test used in the
latter sense, when referring to an initial period of employment during which a new,
transferred or promoted employee must prove to show that he is capable of
performing the required duties of the job/position before he will considered as
permanently employed in that position.

35
 (ii)Sentence is imposed for commission of crime whereby a convicted criminal is
released into the community under the supervision of the probation officer in lieu of
incarceration (imprisonment) that there has a chance to prove himself innocent and
its purpose is reform and rehabilitation.
The accused must agree to specify standards of conduct and the public authority
operating through the court impliedly promise that if he makes good, his probation will
continue however his violation of such standards subjects his liberty revocation.

Factors determining for one to be subject of probation

(i) Nature and the circumstances of the offence.
(ii) The history characteristics of the accused.
(iii) The need for the sentence imposed.

NB. Probationer: Is convicted offender who is allowed to go at large, under suspension

of sentence, during good behavior

Probation Officer: One who supervises person commonly juveniles) Places on

probation by the court in a criminal proceedings progress of the probation. S. 38 of the
Penal Code CAP 16.

THE PREVENTION OF TERRORISM ACT, 2002.

A. Provide for measures of dealing with terrorism.

- Cooperate with measures of dealing with terrorism.

- It is applicable in the United Republic of Tanzania (Mainland and Zanzibar).
- Vests jurisdiction to try terrorist acts in the High court of Tanzania (Mainland and
Zanzibar are also covered under the Act, provided they are committed by a Tanzania.

B. Definition of an offence/terrorist Act.

With INTENTION (mens rea) does an act which:
(a) May seriously intimidate the populations.
(b) May seriously damage a country or an international organization.
(c) Is intended to unduly compel a government from performing or abstaining any act.
(d) Seriously destabilize or destroy the economic fundamental political constitutional or
social structure.
(e) Involves or causes;
- Attacks from persons
- Kidnapping a person

Terrorist Act also includes:

(i) Serious bodily harm to person.
(ii) Serious damage to property.
(iii) Endangering of persons life.
(iv) Use of firearms or explosives
(v) Disrupting of any services.
(vi) Demonstration/protest and stoppage of work leading to 1-v above.

36
Terrorism Act also includes:
(i) Involvement in terrorist meetings
(ii) Prescribed organizations for commission of terrorism
(iii) Support to terrorism
(iv) Harboring terrorists(concealing)
(v) Possession of unauthorized articles i.e. Sketch plan model, other documents for
terrorism purposes.
(vi) Use of property for terrorist acts
(vii) Arrangements for retention or contact of terrorist property.
(viii) Provision of weapon to terrorist groups.
(ix) Recruit of persons to be members of terrorist groups or to participate in terrorist acts.

Other important points to note:

(i) It is the High Court of Tanzania [Mainland and Zanzibar]which has jurisdiction to
try terrorists acts – S. 34 (1)
(ii) Prosecution of the Offences depends on the Consent of the DPP- s.34 (2).
(iii) The inspector General of Police/Commissioner of police may exchange information
relating to terrorism with other states.
(iv) The director of Immigration or other authorized shall not grant a permit persons
reasonably suspected to be terrorist in United Republic of Tanzania even refugees
applications may be rejected by the minister.
(v) Offences under the prevention of Terrorism act,2002 are not bail – s.49
(vi) The following statutes (acts) have been amended.
(a) The Criminal Procedures Act. 1985).
(b) The National Security Act. 1970.
(c) The Extradition Act, 1991.
(d) The Immigration Act.1967.

(vii) Any police may arrest without warrant any person

(a) Has committed an offence or
(b) Is committing an offence.
(c) He has a reasonable ground for suspecting to have committed or to be committing
an office.
(viii) The Inspector General of police may issue a detention order in respect of an air craft.

THE NON-GOVERNMENTAL ORGANISATION ACT – 2002.

1. This is an a ct to;
i. Provide for registration of non-Governmental organizations.
ii. To coordinate the activities of non-governmental activities.

2. The Act establishes the office of the director of NGO to link between the
government and the NGO’s whose functions includes.
-Advices on the policy and other matters on NGOs.
- To ensure proper implementation of policy
- To ensure that information about NGO’s and their activities are available to the
government.
-To attend all bound meetings as a member.

37
 3. The Act establishes the office of the REGISTRAR who shall appointed by the
minister responsible for NGO’s. The Registrar’s functions include:
 To register all national and International NGO’s
 To keep track registers for the registered NGO’s
 To attend Board meetings as secretary.
 To keep other records of NGO’s
3. The act, established shall be a body corporate with perpetual succession and shall in
its name be capable suing or being sued etc.

FUNCTIONS OF THE BOARD

(i) To approve and coordinate registrations of NGO’s
(ii) To order cancellation of any NGO
(iii) To provide guidelines to NGO’s
(iv) To advice of the code of conduct prepared by the council.
(v) To investigate and inquire into any matter regarding the performance of NGO’s

Procedure for Registration on NGO’s:-The Founder are required to the following:

(i) Apply for registration to registrar. The Application in the prescribed form shall be
accompanied by:
(a) A copy of the constitution
(b) Minutes containing full names and signatures of founder members.
(c) Personal particulars of leaders.
(d) An application fee.
(e) Any other particulars.

(ii) Within 3 months the Registrar shall forward the application to the board
consideration which shall/ may approve or refuse registration.
(iii) If no reply is made by the Board in 3 months the NGO shall continue operating
as if it was dully registered.
(iv) The Registrar shall issue a certificate or Registration.

Effect of Registration:
(i) The NGO shall be a body corporate and capable in its name of:
 Suing and being sued.
 Acquiring, purchasing and disposing properties.
 Entering into contracts.

NB: The Act establishes the council called the National council for NGO’s which shall
accept a code of conduct for self regulations of NGO’s
National Council for NGO’s a council established with the aim to provide for
conduct or self regulations of NGO under NGO Act of 2002.

THE OATHS (JUDICIAL PROCEEDINGS) AND STATUTORY

DECLARATION ACT, 1966.

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 -The Act rests authority in courts to administer oaths and affirmations (save for
the court martial).

-The Act makes it mandatory for the following persons to make oaths:

(a) Any person who may be lawfully be examined upon oath.

(b) Any person who may give to evidence upon oath or before a court.
(c) Any person acting as interpreter of questions put a person being examined
upon oath or giving evidence before court.

HOWEVER: Any person may object to being sworn or instead be affirmed.

(a) He professes any faith other than Christian faith.
(b) Or he has no religious faith.
(c) Or that making of an oath is contrary to his religious belief.

iv The Act provides for the form in which the affirmation and oath has to be
made. It also provides for the form of Declaration.
iv The Act also provides for the form in which statutory declarations should be
made.

WHAT DO YOU UNDERSTAND BY THE FOLLOWING?

1. A COMPANY:
A company is the association of persons who contribute money or common stock
and employed in some trade or business and who share the profit loss arising there
from
NB: The common stock so contributed form a CAPITAL of the company.
The proportion of capital to which each member is entitled is his SHARE

2. PARTNERSHIP:
A partnership is the relation between persons carrying on business in common with
a view of profit.

3. COMPANY LIMITED BY SHARES:

Company whose liability of the members is restricted to the amount of money
(stock) unpaid on the shares in the event of its winding up.

4. COMPANY LIMITED BY GUARANTEE:

Company whereby every member undertakes or promises to contribute a certain
amount of money incase the company is would up.

A PROMOTER:
Is a person who undertakes to form a company with reference to given objective
(project) and who sets it going and takes all the necessary steps to accomplish the
purposes?

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WHAT DO YOU UNDERSTAND BY THE TERM ULTRA-VIRES IN
COMPANY LAW?
-The term simply means beyond the powers or authority,

e.g. Outside company’s powers/objects as set out in the memats

Where the official of the company has no authority to act.

NB: Utra vires – contract is void and neither party can enforce it. The transaction will be
regarded as ultra – vires in 2 senses:

(i) Where the contract does not comply with the articles.
(ii) Where the contract completely outside the memorandum of Association (Objects)

S.24, ADVOCATES ORDINANCE.

Any Advocate aggrieved by the decision of the committee may appeal;

(a) Where: to the High Court.

(b) Time limit: Within 30days from the date of the decision.

(c) Power of the High court: the court may:

(i) Affirm
(ii) Reverse
(iii) vary
(iv) Exercise all powers under the CPC in Civil suits.
(d) How many judges:
Full bench of the judges composed of not less than 3 judges

NB: The judges who participated during the proceeding is disqualified in the appeal.

If further aggrieved by the decision of the High Court may appeal to the Court of appeal.

In any appeal the committee has to be joined as a party.

QN: WHAT IS AN ADVOCATE’S DUTY TO THE COURT?

Rules: Rules of professionals conduct and etiquette of Tanganyika Law Society.

Duties:
(a) Must discharge all what is required of him to the court.
(b) To help the court to arrive at just decision.

Qn: Duties of the advocate to the client:

(i) Has to discharge all his duties with honest and up-right.
(ii) Serve his clients with best of skills and care.
(iii) Preserve his confidence.

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 (iv) To be diligent over his financial dealings
(v) To defend his client’s interest

QN: Does the Land Act provide for the Registration of Mortgages?
Answer: Yes see S.112 (5) of the Land Act.

It provides that:
“In respect of mortgages other than the mortgage of Land registered under CAP 334 it shall
take effect when it is registered in the prescribed from”

QN: What is the effect of the mortgage which is not registered?

(i) The lender shall not be entitled to exercise any of the remedies under that
mortgage, S.112 (5) of land Act, 1999.
(ii) It shall not take effect as mortgage to secure the facility.
(iii) Un-registered mortgage shall take priority after the registered mortgage.

QN. The Land Act. No 4 of 1999 repeals a number of legislations, can you mention
them.

(i) The Land Ordinance, CAP 113.

(ii) The Land (Law of property and conveyance) Ordinance, CAP 114
(iii) Rights of Occupancy (Development conditions) Act, 1963, CAP 513.
(iv) Land Settlement of Disputes) Act, 1963.
(v) Range development and Management Act, 1964, CAP 569.
(vi) Land Tenure (Village recovery) Act, 1966, CAP 588.
(vii) Government Rents (Summary recovery) Act, CAP 579
(viii) Rural Lands (Planning and utilizing) Act, 1973.
(ix) Specified Coffee Estates (Acquisition and Regrant) Act, 1973.
(x) Specified Sisal Estates (Acquisition and Regrant) act, 1974.

QN; Can you mention two legislations which were not repealed by Act No. 4 of
1999?

(i) The Land Acquisition Act, 1967.

(ii) Registration of Documents Ordinance, CAP 117.

QN: What are the remedies provided in the land Act, 1999, in respect mortgages?
(i) Sue for the monies due, S. 125, (3) (a)
(ii) Appoint a receiver, S. 127 (1)
(iii) Take possession of the mortgaged land, S 129 91).
(iv) Sale the mortgaged land S. 131 (1)

QN Can a non citizen own land under Land Act, No. 4 of 1999?
Answer NO

S.19 (1) right to occupy land lies in the following holders:

41
(a) A citizen.
(b) A group of two or more citizens.
(c) A partnership
(d) A corporate body.

See Chapter 113 S. 19.Rights to Occupy Land

(1) The rights to occupy land which a citizen, a group of two or more citizens whether
formed together in an association under this or any other law or not, a partnership or a
corporate body, in this Act called "right holders", may enjoy under this Act are hereby
declared to be–
(a) A granted right of occupancy;
(b) A right derivative of a granted right of occupancy, in this Act called a
derivative right.
(2) A person or a group of persons, whether formed into a corporate body under the
Companies Act * or otherwise who is or are non-citizens, including a corporate body the
majority of whose shareholders or owners are non-citizens, may only obtain a right of
occupancy or derivative right for purposes of investment prescribed under the Tanzania
Investment Act *.

QN: Can you tell the council the two types of mortgages created by the Land Act,
1999?

First category of mortgages:

(i) Small Mortgages: S. 114:
A mortgages for a period of not exceeding 3 years for a sum of money not exceeding
500,000/=

NB: Remedies are the same but apply to court for leave before exercising the rights, S
238.

(ii)Registered mortgage of the R/O.S. 112, for unspecified amount. This may be;
(a) (Informal mortgage, S. 112 (6) (a). See S. 112 (7) written and witnessed
undertaking changing the Land for repayment of monies.
(b) Lien by deposit of documents. S.112 (6) b, see S. 112 (7).Depositing any of the
following documents.
 CT of a R/O
 CT of customary R/O
 Documents of Lease.

Second Category of Mortgages:

(i) Mortgages of granted Right of Occupancy. See S. 112 (1) i.e. Mortgages of land
registered under CAP. 334.
(ii) Customary mortgages, S. 113 (1). Mortgages which are in accordance with the
customary law, but in case of lacuna the provisions applicable under the
granted R/O mortgages apply.

Remedies. See S. 113 (2)

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 (a) Dispose
(b) Permanently deprive the owner/ borrower that mortgaged land.
Note;
Before exercising any of the remedy the lender shall make an application to the village land
council.
QN Are husband and wife joint tenant or tenant in common under land Act, 1999.

Answer: Tenant in common

S.16 (1):
Unless a provision in the certificate of right of occupancy or certificate of customary
occupancy clearly state that one spouse is taking the right of occupancy in his or her own
name only or that spouses are taking the land as occupiers in Common.
THE SPOUSES will hold land as OCCUPIERS IN COMMON and unless the
presumption is rebutted the registrar shall register the spouses as occupiers in common.

QN; CAN YOU, MENTION THE INGREDIENTS OF A VALID CONTRACT:

(i) Offer.
(ii) Acceptance/Unconditional acceptance
(iii) Free consent.
(iv) Capacity
(v) Consideration
(vi) Intention to create legal capacity (Common
Law requirement)
(vii) The object of the contract must be legal.

QN; WHAT FACTORS WILL VITIATE THE VALIDITY OF A CONTRACT:

The observance of any of the above ingredients:
- Fraud (In case of consent)
- Lack of Capacity.
- Lack of consideration.
- The object of the contract is illegal
- Conditional acceptance.
QN; TELL THE COUNCIL THE LAW GOVERNING THE FOLLOWING:
i) Intellectual property; Intellectual property includes patents design, trade
mark, know-how and copyrights.
(a) Patent – Patent act,1987
(b) Copyright- copyright and neighboring Rights act, 1999.
(c) Trademark- Trade and service marks act, 1986.

ii) Prerogative orders:

Law Reform (Fatal Accidents and Miscellaneous Provisions Act.
iii) Sexual Harassment:
Sexual Offences Special Provisions Act, 1998.
iv) Suits against a ministry:
Government Proceedings Act, 1967.

v) Money Laundering: S.71 of Cap 256

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 The Proceeds of Crime Act,1997.

QN: WHAT IS A PATENT?

A grant of right to exclude others from making using ones invention.
It includes right to license others to make use or sell it.

Copyright: The Sole legal right to print, publish, perform film or record a literally or
artistic musical work.
Trademark: A distinctive through which the products particular manufactures of the
vendable commodities of a particular merchants may be distinguished from
those others.

TELL THE COUNCIL WHICH STEPS SHOULD BE TAKEN IF:

(a) A person refuses to take Oath
(b) Refractory witness
(c) S.1999 CPA.
Steps to be taken
(i) The Court has to adjourn the case for a period not exceeding 8 days.
(ii) In the meantime commit such person to prison, unless he sooner consents
what is required of him.
(b) A person refuses to plead.
(i) The court shall order the Registrar or any officer of the court to enter a plea of
not guilty on be behalf of the accused person or,
(ii) The court shall thereupon proceed to try whether the person be of sound or
unsound mind.
(iii) Incase the accused is of sound mind, the court shall proceed with the trial.
(iv) Incase the accused is of unsound mind and thus incompetent to testify or make a
defence the court shall trial.
(v) Incase the accused is of sound mind and thus incompetent to testify or make a
defence the court shall order trial be postponed and the accused to be kept in
custody AND
(vi) The Court shall transmit the court record to the Attorney General consideration
by the minister and the minister may order Such person to be detained in a
mental hospital or other suitable place of safe custody.

QN: WHAT HAPPEN IF AN ACCUSED PERSON REPUDIATES OR

RETRACTS HIS FORMER STATEMENT:
- Repudiated confession: denying to have made the statement at all.
- Retracted: Admits to have made the Statement but qualifies the same by
stating that either:-
(a) He made under inducement.
(b) He made under threat or promise.
(c) What is sought to be produced is not what he said.

All the above need corroboration before conviction (As a matter of practice).
See Manyalike v.R. (1971) HCD 314.

44
“The court shall hold a “trial within a trial” and if it will be found that what an accused
alleges is true the court shall NOT admit that confession as evidence with that proceeding”

See DPP v. Noah Kipenya (1980) TLR 212.

QN; Tell the Counsel what the following concept mean in law:
(a) A share warrant:- S.71 (1) (2) CAP 212.
A warrant or certificate of corporation stating that the bearer of the warrant
is entitled to a certain amount of fully paid up shares/stock.

(b) Stock Warrant:

Certificate entitling the owner to buy a specified amount of stock at a
specified time at a specified price.

(c) Share Certificate:

An instrument of a corporation certifying that a person therein name is
entitled to a certain number of shares it is prima facie evidence of his thereto.
S.69, CAP 212.

QN: WHERE DO YOU SEEK RELIEF IN AN APPLICATION FOR LEAVE

TO SUE A SPECIFIED PUBLIC CORPORATION?

S. 43(1) (a) of Public Corporations Act, 1999.

The PSRC becomes an official receiver of the specified corporation.
The official receiver under the bankruptcy ordinance has to be sued upon getting
leave of the court –see S.9 of CAP 25.
Effect of receiving order
(1) On the making of a receiving order the official receiver shall be thereby
constituted receiver of the property of the debtor, and thereafter, except as directed
by this Act, no creditor to whom the debtor is indebted in respect of any debt
provable in bankruptcy shall have any remedy against the property or person of the
debtor in respect of the debt, or shall commence any action or other legal
proceedings, unless with the leave of the court and on such terms as the court may
impose.
(2) This section shall not effect the power of any secured creditor to realize
or otherwise deal with his security in the same manner as he would have been
entitled to realize or deal with it if this section had not been passed.

QN. WHICH COURT HAS THAT JURISDICTION?

High Court.

QN WHAT DO YOU UNDERSTAND BY TRUSTEE BANKRUPTCY

A Person appointed by bankruptcy court to take change of debtor estate, to collect
assets, to bring suit on debtors claims to defend actions against if and other
administer debtor estates, he has power to examine debtor, to initiate actions to set
aside preferences.

45
QN: CAN YOU NAME 5 OFFENCES WHICH REQUIRE THE CONSENT OF
DPP.
(i) Incest male c/s. 158 CAP 16.
(ii) Incest by female c/s. 160
(iii) Offences under the National Security Act, 1970 Act, No. 3/00.
(iv) Offenses under the EOCCA 1984, Act. 13 0f 1984 (Economic
and Organized crimes control Act.)
(v) Offences under the witch craft Ordinance.
(vi) Terrorism under Terrorist Act, No.13/2002

QN: WHAT ARE MAJOR DIFFERENCES BETWEEN CRIMINAL

PROCEDURE CODE AND CRIMINAL PROCEDURE ACT, 1985?

(i) CPA: Extends the power of issuing arrest warrant to the secretaries and
village counsels. This was not in the code.
(ii) CPA – Provides for compensation to a person who suffers materials loss
injuries or death – NO such provision in the code. But that is not
applicable to persons who suffered such loss because of assisting police or
magistrate in apprehending the suspects.
(iii) CPA: Requires that suspect be treated with respect and Human dignity –
No in the Code.
(iv) CPA: Empowers the minister to make regulations to make regulations on
how identify parade should be conducted. No in the Code.
(v) CPA: Cross examination of a witness will be there been if Evidence was
not given on oath. In the given on Oath. In the Code Oath was necessary.
(vi) CPA: Incase of silence by the witness negative inference shall be inferred:
Under the Code positive inference is referred.
(vii) CPA: If provides preliminary inquiring (i) Committal proceedings incase
the suit is tribunal by the High Court in the code there was no such
provisions
(viii) CPA: There is a procedure for one judge to take over and continue a trial
commence by another judge. No in the Code.

QN: CAN A DECREE HOLDER ATTACH AND SALE A WAGON

BELONGING TO TRC IN EXECUTION OF A DECREE.

S.88 of the Tanzania Railway Corporation Act, 1977.

 No execution or attachment shall be issued against the corporation or its property.
But the Director general shall cause to be paid out of the revenue of the corporation
such amount as may, by the judgement/order be awarded against the Corporation to
the person entitled thereto.
 No seizure.

Note: The TRC Act has been repealed by the Railways Act, 2002, Act No. 4/02 which is yet
to come into force.

43. STATUTORY COMPANIES

46
  They are bodies with a special type of object, which has been thought
desirable to encourage.
 They are state-based. They are formed under general Public Acts. For
example the National Micro finance Bank, the defunct NBC Limited and
others.

Bankrupt.
The state or condition of person (individual, partnership, corporation, municipality) who is
unable to pat its debts as they are, or become due.
This includes a person against whom an involuntary petition has been file, or he has filed a
voluntary petition, or has been adjudged a bankrupt.

Bankruptcy proceeding
Proceeding initiated either by an insolvent individual or business (termed a voluntary
bankruptcy) or by creditors (termed an involuntary bankruptcy) seeking either have the
debtor’s from any further obligation or to restores an reorganize the insolvent’ debt
structure..

Bankruptcy discharge
An order of bankruptcy court, which discharges the debtor from all dischargeable
obligations and debts.

Receivership
Legal or equitable proceedings in which a receiver is appointed for an insolvent
corporation, partnership or individual to preserve its assets for benefit of the affected
parties. In most cases creditors (financials institutions and banks are the affected parties.)

The state or condition of corporation, partnership, financial institution or individual over

whom a receiver has been appointed for protection of its assets and for ultimate sale and
distribution to creditors.

44. INSURANCE

Comprehensive coverage
A simple and convenient for of indemnity now commonly available in contracts automobile
insurance
It includes not only the conventional coverage against loss caused by fire, theft wind, etc.but
it is generally designed to protect against all damage to the insured vehicle except collision or
upset

Cover note
Written statement by insurance a gent that coverage is in effect

47
Over insurance
Insurance effected upon property, either in one or several companies to an amount which
separately or in the aggregate exceeds the actual value of the property.

46. PECUNIARY JURISDICTION OF COURTS IN TANZANIA.

 Primary courts – 1st Schedule of the Magistrate Court Act,1984 Tanzanian s
shillings 3,000,000 and 5,000,000/= for immovable
 Resident Magistrate Courts – Tshs 12,000,000/= for immovable property and
10,000,000/= for the subjects capable of being estimated at money value as
provided by written Laws (Misc. amendments (No. 3) Act, 1991 which amended
Section 40 (2) (a) (b) of the magistrate’s Court Act, 1984.
Repealed by act No. 25 of 2002,
150,000,000/= for immovable
100,000/=for movable

High Court
- According to the constitution of the United Republic of Tanzania Art. 108
High Court has unlimited jurisdiction.
- It may entertain any matter whose value is beyond Tshs. 150,000,000/= ad
infinitum

45. PUNISHMENTS THAT CAN BE INFLICTED BY COURT WHEN ONE

GUILTY OF AN OFFENCE:

(a) Death – The cessation of life, permanent cessation of all vital functions and signs,
sustaining irreversible cessation of circulatory and respiratory function.
(b) Imprisonment – the detention of a person contrary to his will.
The act of putting or confining a person in prison. That restraint of a person/s
personal liberty.
(c)Corporal Punishment – Physical punishment as distinguished from pecuniary punishment
or fine. Andy kind of punishment of or
inflicted on the body.
(d)Fine – a pecuniary punishment or penalty imposed by lawful tribunal person
convicted of crime or misdemeanor.
(e)Forfeiture – a deprivation or destruction of a right in consequence of the non-
performance ce of some obligation.
(f)Forfeiture of some property (including money, securities and real estate) is one of the
penalties provided for under common law jurisdictions.
(g)Payment of compensation-Finding security to keep the peace and behaviour or to
come up for judgment
D) Any other punishment provided by the penal code or any other law or ordinance
E) Conditional discharge

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46. RAPE- SEXUAL OFFENCES SPECIAL PROVISIONS ACT 1998 SECTION
130.

The Term rape means unlawful sexual intercourse with a female without her consent.
It is that unlawful carnal know ledge of a woman by a man forcibly and against her will.

INGREDIENTS OF RAPE”.
(a) Unlawful carnal knowledge
(b) Absence of consent of a woman
(c) There must be evidence of penis penetrating into vagina

PUNISHMENT FOR RAPE- SECTION 131.

i Life imprisonment, or
ii Imprisonment of not less that 30years with corporal punishment and with fine.
iii In addition the accused shall be ordered to compensation of an amount
determined by court for injuries caused for such persons.
iv In case of gang rapes - life imprisonment.

IF THE OFFENCE IS COMMITTED BY A BOY OF 18 YEARS OLD OR LESS,

THE BOY SHALL BE IN FOR:
1. If the 1st Offender, he will be liable for corporal punishment only.
2. If 2nd time offender- imprisonment for a term of twelve months with
corporal punishment.
3. 3rd time and recidivist – he be sentenced to life imprisonment.

REDUNDANCY
Become impending at the stage when the employer contemplates the need to reduce the
workforce.
Employer is duty bound to consult the field branches on any impending redundancy.
- Section 6(i) (g) of the Security of Employment Act, 1964

MATTERS UPON WHICH CONSULTATION SHOULD TAKE PLACE

1. Measures to avoid reduction of the workforce
2. Restriction of overtime.
3. Training and re-training.
4. Transfer between departments.
5. Measures to minimize the effects of reduction of the work force.
6. Section of workers to be effected.

CRITERIA TO USE WHEN IT COMES TO SELECTION OF EMPLOYEES.

The rule of First In Last Out [FILO] is applicable in the Tanzania jurisdiction. However, the
following things also need to be considered:

(a) Need for efficient operation of the undertaking, establishing or service.

49
 (b) Ability, experience’s skills and occupation qualifications of individual
workers.
(c) Length of service.
(d) Age of employees.
(e) Employees.
(f) Employees’ Family situation.

DIFFERENCES BETWEEN CONTRACT OF SERVICES AND CONTRACT

FOR SERVICES:
(a) Master power of selection of his employees/Servants
(b) Payment of wages or other remuneration
(c) Maters’ right to control the mode of doing the job
(d) Masters’ right of suspension or dismissal
(e) Employees being part and parcel or the masters; business integrated to it.

EMPLOYEES AND LAW COVERING THEM:

The Employment Ordinance, Cap 366- section 2 employee means any person who entered
or works under a contract of service with an employer whether by way of manual labor,
clerical work or otherwise
The Industrial Court act, 1967 – defines employees provided by section 2 of the
Employment Ordinance but it excepts the following:

(a) Employment of service by or under the government

A voluntary agreement must be recorded in writing by the parties and
submitted to the Zonal Labor Officer.

Procedures for making voluntary agreement

1) It must be negotiated between the parties ( Employers and the workers trade
union)
2) It must be submitted to the commissioner
3) Labor Commissioner submits it to the Minister with his report the same.
4) Minister transmit it to the Industrial Court
5) Court decides whether to register it or otherwise
6) Once registered, it becomes an award of the Court.

NEGOTIATED AGREEMENT – Section 4 (5) of the Industrial Court Act, 167. it

becomes binding only when registered by the courts as an award.
Finally of the decision of the Minister for labor/Conciliation Board
Section 27 of the Industrial Court Act, 1967- decision of the Board is final and
conclusive and not liable to be challenged, reviewed or question save lack of jurisdiction.

- Jurisdiction of the Ordinary Courts is ousted in issues of summary

Dismissal

Judicial review is the remedy available to the aggrieved party. The decision of the Board may
be challenged by way of certiorari.

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GROUNDS FOR CHALLENGING THE DECISION OF THE
BOARD/MINISTER
1. Excess of jurisdiction.
2. Error law of the face of the record.
3. Breach of the rules of natural justice and
4. Whether determined was procured by fraud, collusion or perjury

QN: WHAT DOES THE TERM “STOCK” MEAN IN CORPORATION LAW?

DEFINITION:
The aggregate of a certain number of shares severally owned by the members or
stockholders f the corporation, or the proportion share of the individual shareholder.
The capital or principal fund of a corporation.

Certificate of Stock:
A certificate of a corporation that the named person is the owner of the designed number
of shares of stock

It is merely written evidence of ownership of stock and of the rights and liabilities resulting
from such ownership.

Certificate of title:
Document evidencing ownership commonly associated with terms

QN WHAT DO YOU UNDERSTAND BY THE FOLLOWING TERMS:

(i) Strict Liability:
(a) In criminal law, it is an unlawful act whose elements do not contain the need
for criminal intent or mens rea, the crimes are usually acts that endangers the
public welfare, such as illegal damping of toxic waste.
(b) In product liability it is liability without fault. The seller becomes liable for
any and all defective a hazardous products personal safety.
What is the relevancy of strict liability with the requirement of burden of proof?

(ii) Occupiers Liability:

Liability of an occupier for loss sustained by person at the occupiers premises.

THE LIABILITY EXTENDS TO 4 CATEGORIES OF PERSONS:

(i) A license i.e. the one that has the gratuitous permission of the occupier has no
interest.
(ii) Invites; A person who comes into the occupier’s premises with occupiers consent,
in pursuit of a common interest with the occupiers i.e. Shopkeeper and Customers.
(iii) Trespassers: A person without any kind of permission to be on the premises, and
whose presence is either unknown to the proprietor or if unknown is practically
objected to

The duty the occupier to the trespasser is not to inflict damage intentionally
or recklessly on a trespasser he knew to be there.
(iv) Vicarious Liability:

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 The imposition of liability on one person for actionable conducts of another based
solely on a relationship between Employer and Employee.

(v) Corporate Liability:

Is the liability of the corporation for the acts of its officers for the Acts of its officers
done with the scope of the duties/power as contained in the MEMARTS?

QN: WHAT DO YOU UNDERSTAND BY THE FOLLOWING?

(i) Conditional discharge
(ii) S.38 CAP 16.

It is a discharge by which a convict is required not to commit an offence within a prescribed

period of time not exceeding 12 months from the date of the order.

A sentence to confinement of the defendant fails to fulfill conditions of probations.

BANKRUPTCY ORDINANCE CAP 25

i A debtor commits an at of bankruptcy in each of the following cases

(a) If he makes conveyance or assigns his property to trustee for the benefits of his
creditors.
(b) If he makes a fraudulent conveyance, gift, delivery or transfer of his property.
(c) If he makes any conveyance or transfer of his property or creates any change
thereon which transcend to be void as fraudulent preference.
(d) If with intend to defeat or delay his creditors, he does any of the following:
i. Departs out of the territory
ii. Departs from his dwelling house
iii. Absent himself.
iv. Begins to keep house.
(e) If execution against him has been levied by Seizure of his goods in any civil
proceedings and the goods have been sold or held by the plaintiff.
(f) If the debtor give notice to any of his creditors that he has suspend payment of his
debts
(g) If he fails to satisfy the decree passed against him.

ii. Receiving Order:

It’s a debt commits an act of bankruptcy the court on a bankruptcy petition being
presented either by a creditor or by the debtor make an order called receiving order for the
protection of the estate.

GENERAL SUMMARIZED BRIEF

1. Representative suit – O.1,r.8 of Civil Procedure Coe Act,1966

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 One person may sue or defend on behalf of all in same interest. Such person is
supposed to act with leave of the court, and ought to get the authority of each and
every person so represented. Those represented are supposed to sign a document
authorizing one to represent them.

2. Reference – s77 of the Civil Procedure Code act,1966

Subject to prescribe conditions and limitations, any Court may state a case and refer
the same for the opinion of the High Courts Court may make such order thereon as
it thinks fit.

3. Review – Section 78 of the Civil Procedure Code Act,1966

Remedy available to persons aggrieve by decree or order from which an appeal is
allowed by the CPC or by a decree or order from which no appeal allowed by the
same code.
Review of judgment is made to a court, which passed the decree or made the order.
The Court may make such order thereon, as it thinks fit.

4. Revision Section 79 of the Civil Procedure Code act,1966

The High court may call for the record of any case, which has been decided by any
subordinate Court to the high court and in which to appeal is allowed by the same
code.
Review of judgment is made to a court passed the decree or made the order. The
Court may make such subordinate court appears
(a) To have exercised a jurisdiction not vested to in it by law.
(b) To have failed to exercise jurisdiction so vested to it.
(c) To have acted in the exercise of jurisdiction illegally or with material
irregularity.

The Court may make such orders, as it thinks fit.

The exercise of the powers under this section not be construed to limit High Court
powers in the exercise of reversionary powers conferred to it by the magistrate’s
Court Act, 1984.

5. Appeal – Section 70 of the Civil Procedure Code Act, 1966.

Appeal on every decree passed by a Court of Resident magistrate/ District exercising
original jurisdiction shall lie to the high court. But situation is different where it is
provided otherwise by the Code or any other law.

Appeal may also lie to decree passed ex-parte.

Appeal does not lie in case judgment was passed by consent of parties.

6. Orders, which are appealable, are as follows: - Section 74 of the Civil

Procedure Court Act, 1966

1) An order suspending arbitration where the award has not been completed
within the period allowed by court.
2) An order on an award stated in the form of a special case.
3) An order modifying or correcting an award

53
 4) An order filing or refusing to file an award to refer to arbitration.
5) An order staying or refusing to stay a suit where there is agreement to refer
to arbitration.
6) An order filing to file an award in arbitration without intervention of the
Court.
7) An order under section 69 of the Code (compensation for obtaining arrest
attachment or injunction or sufficient grounds)
8) Any order made under Rules from which an appeal is expressly allowed by
the rules.

7. Power of the High Court in an Appeal – Section 76 of the Code.

1) To determine a case finally

2) To Remit a case for retrial
3) To Frame issues and refer them for trial
4) To take additional evidence or to require such evidence to be taken

8. Quantum meruit

This latin phrase so much as deserves. This doctrine is based on the implied
condition that the party deriving benefit from a service agrees to pay for it. It is a
common case in quasi contracts though it may be available in other instances of
contact. The work done is said to have been performed ex-debito.
E.g. A agrees to build a house for B under certain specifications while almost
finishing the building, A deviates from the specifications. B decides to fire A and
decides to retain the well- built portion of the house. B has to pay A for the work
done.

9. Requirements of a valid Contract

(a) An offer
(b) Total acceptance of the offer
(c) Supported by consideration in most cases
(d) By competent parties
(e) The object of the contract must be legal
(f) The offer and acceptance must be made with free mind.

10. Quasi contracts

A latin phrase, which in ordinary English means “as if a Contract” it is something,

like a contract but yet it is not one. Contractual obligations are generally created
voluntarily, but there are some obligations, which are not contractual, which are
treated as such by law. That is to say there is no contract in fact but there is one in
contemplation of law. Theses contracts are based on principles f natural justice and
equity.

11. Contingent contract – s. 31-36 of the Law of Contract Ordinance

54
 A contingent contract is a contract to do not to something, if some event, collateral
to such contract dopes or do happen. It is sometimes referred to as conditional c
contract. Features of contingent contacts are.
(a) The liability for performances is not absolute. It depends the happening or to
not happening of certain event.
(b) The contingency should relate to the matter collateral to the main purpose of
the agreement.
(c) The contingency should not depend on mere will and pleasure of a partly,
but must depend on the act of the party.
Contingent contract to or not to do an event can not be enforced by law unless and
until that event has happened. If the event becomes impossible, such contacts
become vide.

12. Restitution in intergrum

Restoration on restitution to the previous condition. This is affected by prateor on

equitable grounds at the prayers of the injured party, by rescinding or annulling a
contact or transaction valid by the strictness of the law. Or annulling a change in the
legal condition produced by an omission and restoring the parties to their situation
or legal relations

13. Accomplice – Section 142 of the law of Evidence Act,1967

One who knowingly, voluntarily and with a common intent unites with the principal
offender in the commission of a crime. One who in some was concerned or
associated with in commission of crime, partaker of guilt, one who aids assist is an
accessory.

14. Hostile witness or adverse witness

A witness who manifests so much hostility or prejudice under examination chief to

the party who has called him, representative. The party that called him is allowed to
across – examine him. This is to say the party may treat him as though he had been
called by the opposite party. When a party calls a hostile witness, an adverse party, or
witness identified with an adverse party, interrogation may be a way of leading
questions.

15. Amicus Curiae/Friend of the courts

A person with strong interest in or views on the subject matter of an action, but not
a party to the action. That person may petition the Court for permission to file a
brief, ostensible on behalf of a party but actually to suggest a rationale consistent
with its own views.

16. Ex-parte
On one side only: By for one party, done for, in behalf of, or on the application of,
one party only.

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17. Per incuriam
Inadvertently

18. Bona vacantia

Of goods, unclaimed property
Generally, personal property which escheats to state because no owner, heir or next
of kin claims it.

19. Inter-alia
Among other things
A term commonly used in pleading – especially in reciting statutes, where the whole
statute was not set forth at length

20. Inter vivos

- Between the living, from now living person to another
- Where property passes by conveyance, the transaction is said to be intervivos, to
distinguish it from a case of succession or devise
- So an ordinary gift from one person to another is called a gift “intervivos” to
distinguish it from a gift made in contemplation of death (mortis causa) or a
testamentary gift.

21. Nemo propri causa testis esse debet

No one ought to be a witness in his own case

22. Nemo dat quit non habet

He who has not given

23. Doli incampax

Incapable of criminal intention or malice, not of the age of discretion, not possessed
of sufficient and intelligence to distinguish between right and wrong to the extent to
being criminally liable for his actions.. Defence available to children of tender age.

24. Ration decidendi

The ground or reason of decision, The point in the case which determines the
judgement

25. Consensus and idem

- An agreement of parties to the same thing. That meeting of minds.
- A term applied to anything accorded as a favour, as distinguished from that which
may be demanded ex debito as a matter or right.

26. Ex facto
From or in consequence of fact or action

27. Exgratia
Out of grace, as a matter of grace, favour or indulgence, grabuitous.

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 28. Ingorantia Legis neminem excusat
Ignorantia of the law does not excuse anyone.

29. De facto.
- In fact, Indeed, actually
- A phrase commonly used to characterize an officer, a government, a practical
purpose, but is legal or illegitimate.
- It is the opposite of de jure. Which means rightful, legitimate, just or constitutional.

30. Audi alterum

- One of the principals of natural justice
- Hear the other side, hear both sides
- No man should be condemned unheard.

31. Cum testamento annexo

- With the will annexed
A term applied to administration granted where a testator makes an incomplete with
without naming any executors or where he names incapable persons, or where the
executors named refuses to act.

Functus officio
- a task performed having fulfilled the function, discharge the office or
accomplished the purpose and therefore of no force or authority.
- It is applied to an officer whose term has expired and who has consequently
no further official authority.
- And also to an instrument, power or agency etc. Which has fulfilled the
purpose of its creation, and is therefore of no further virtue or affect.

Viva Voce
- worth the living voice, by word of mouth.
- As applied to the examination of witnesses, the phrase is equivalent to orally,
it is used in contradictions with evidence affidavits or dispositions

Vioir Dire
- to speak the truth
- the phrase denotes the preliminary examination which the Court and
attorney make of prospective jurors to determine their qualification and
sustainability to serve as jurors
- Peremptory challenges or challenges for cause result from such examination.

Judgement in rem
- An adjudication pronounced upon the status of some particular things or
subject matter, by a tribunal having competent authority

57
 - It is founded on proceedings instituted against or on some thing or subject
matter whose status or condition is to be determined
- It sis a judgement resulting from a case brought to enforce a right in the
thing itself
- It operates directly upon the property
- It is that solemn declaration of the status of some person or something
This judgement binds on all persons in so far as their interests in the property are concerned

Final judgement
- One which puts to an end an action at law be declaring that the plaintiff
either has or has not entitled himself to recover the remedy he sues for (as
distinguished from interlocutory judgments)
- The judgement which disposes of the subject matter of the controversy or
determines the litigation as to all parties on its merits.
- This category of judgement terminates all litigation on the same right.

Agreed judgement/judgement by consent.

- Judgement entered on agreement of parties, which receives the sanction of
the Court, and I constitutes a contract between the parties to the agreement,
operates as an adjudications between the and when the Court gives the
agreement its sanction, becomes a judgments of the Court.
Locus
It is a right of appearance in Court of justice of before a legislative body on a given
question. (Refer Shubi balonzi’s case).

32. Remedies for breach of contract

(i) Liquidated damages
 Damages those are fixed or ascertained.
 Parties may agreed that in the event of breach, the party in breach
shall pay a certain agreed sum of money
 Where there is no such agreement, but nonetheless one party suffers
loss, the loss can be calculated so as to compensate the injured party,
Here damages are not ascertained, and the court will ultimately
calculate. These are unliquidated damages.
(ii) Nominal damages- Where injured party in contract is unable to prove
actual damage, he will not be denied a judgement on the ground that the
law will not bother itself with trival. He may be awarded nominal damages
(iii) Special damages – damages claimed from a party only if the claimant has
notified the other party that special damages may result from the breach
(iv) Compensatory damages – damages that can be compensated for by
payment of money making or replacing the loss caused by the wrong or
injury.
(v) Mitigation of damages – If defendant breaches a contract, the plaintiff
owes a Defendant a duty to make a reasonable effort to avoid damages. If
the Plaintiff can avoid or minimize the damages he will suffer as a result of
the Defendant’s breach.

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 (vi) Specific performance – Equitable remedy. That actual carrying out of a c
contract by a party in breach. The order is given only at the discretion of
the court and it may order one party of the suit to carry out the agreement.
This remedy is granted by the Court only if damages are insufficient to
compensate the injury.
(vii) Injunction- an equitable remedy meant to protect property or other rights
from irreparable injury by decreeing or commanding acts to be done or
forbidding their commission.
- Used to prevent hardships and oppression in contacts.
33. Prerogative Remedies – Section 17 of the Law Reform (fatal Accidents and
Miscellaneous Provisions) Ordinance (Amendment) Act, 1968.
 In days gone by habeas Corpus was grouped as apart and parcel of the
prerogative writs – Procedure for challenging in Court legality of
detention of a person. It may also be used to detention in civil matters.
 According to modern administrative law, prerogative remedies are:
1. Certiorari – It operates to quash a decision that has made in excess of
legal authority.
- An order for challenging an ultra vires act.
- The order is used not because of any personal injury to the applicant but
because of the need to control the machinery justice in the general public
interest.
-
2. Prohibition – Operates to pre vent an authority from acting in excess
(absence or lack) of its legal authority before the authority has completed it
proceedings.
- An order used to prohibit an interior tribunal from continuing to exceed its
jurisdiction e.g. entertaining a case, which falls outside its power.
- It is relevant before the interior tribunal has completed its proceedings
- The order will issue to an applicant who has suffered any personal injury
- Court has discretion whether it will issue the order or otherwise.

3. Mandamus – Order for compelling performance of public duties. It is

discretionary power like all other prerogative order. Conditions for
Mandamus:
- A demand for performance must precede an application for mandamus
- The Application must have a legally enforceable right against the party from
who he seeks to have the writ issued.

34. Mode of application for prerogative order is two staged

1) Application for leave to lodge an application for prerogative orders. At this stage
it is necessary to join the Attorney General.
2) Once leave is granted by the Court, the next step is to lodge the Application for
pre-rogative order. At this stage it is not a must that the A.G. joined as party.

35. Debenture:

59
 A promissory note or bond backed by the general credit and earning history of a
corporation and usually not secured by a mortgage or lien on any specific property.

36. Remedies available to the mortgage Section 125 of the Land Act, 1999.
(a) Suing the mortgage for any monies due and owing under the mortgage where the
mortgage is not small
(b) Appointing receiver of the income of the mortgage and
(c) Leasing the mortgage land where the mortgage is on a lease, subleasing the same
(d) Entering into possession of the mortgaged land
(e) Selling the mortgaged land.

37. Small mortgages – Section 114 of the land Act,1999

- a mortgage for a period not exceeding 3 years to secure any sum of money
not exceeding Tshs. 500,000.00 unless it is ordered otherwise by the Minister.
This mortgage is supposed to be in simple and clear languages

38. Alternative Dispute Resolution (ADR) – GN No. 422/94, Order VIIC of the
Civil procedure Code

The term refers to procedures for setting disputes by means other than litigation e.g
arbitration, mediation and mini-trial. Such procedures which are usually less costly
and more expeditious, are increasingly being used in commercial and labour disputes,
divorce actions and in other disputes that would likely otherwise involve court
litigation.
- In Tanzania, where .D.R is directed by the Court under a rescheduling order
made under sub Rule 2 of Rule 3 of order VIIIA or Sub Rule 3v of Order
VIIB such procedure save for arbitration, is conducted in accordance the
Direction issued by the Chief Justice.
Arbitration – Order VIIC Rule 3 of the Civil Procedure Code Act,1966
- Where parties in any suit agree at a pre-trial Conference held under the
provisions of order VIIA of the CPC that any matter in difference between
them shall be referred to arbitration, the courts bound to give orders to that
effect.
- Court has power to appoint an arbitrator where the person appointed to be
an arbitrator or umpire.
a) dies
b) Refuses or neglects to act or becomes incapable of acting
c) Leaves the country. Circumstances showing that he will probably not return at an
early date

39. Public Company

- Must be registered as a public company

- Must have at least *two members) 7 members
- Must have state in its memorandum that it is a public company
- Purpose of a public company is to raise capital from the public to run the
enterprise

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 - It must issue a prospectus giving minimum essential information to potential
members
- Shares of a public company are easily transferable on the stock exchange.
- Public Company must have a minimum share capital

40. Private Company – Section 27 of the Companies Ordinance Cap 212

- Private Companies are limited companies, which are not registered as public
companies
- Does not have the ability to offer shares to the public
- May rise capital by issuing its securities to the public
- S hares’ rights are restricted(
- The memorandum must state that it is a privae company
- Limits the number of members to 50 not including the company’s employees

41. Company limited by guarantee

 The company’s act does not permit a company to be created n which
members are free from liability whatsoever. But as an alternative to limit
their contributions to amount payable on their shares, they will, if
required subscribed an agreed amount
 According to common law, there are two forms of companies limited
guarantee.

a) The guarantee company without a share capital

b) The guarantee company with a share capital

The former is guarantee company in its pure from, whereas the later a sort of hybrid.

42. Company limited by shares

 Guarantee Company is unsuitable when the primary object is to carry on
business for profit and to divide that profit amongst members.
 Just in partnership agreement, will to prescribed shares of the partners,
so the company’s constitution needs to define shares of members.
 The members who subscribed for shares, will be under duty to pay the
company for then in money or money worth and the company is
according said to have been limited by shares.
 Members’ liability to contribute towards the Company’s debts is limited
to nominal value of shares for which they have subscribed.
 Once the members have paid the shares, they are under no further
liability.

43. Statutory Companies

 They are bodies with a special type of object, which has been through
desirable to encourage

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  The are state- based. They are formed under general Public Acts. For
example the National Miscrofinance Bank, the defunct NBC Limited
Bankrupt

The state or condition of a person (individual, partnership, corporation, municipality) who is

unable to pay its debts as they are, or become due.

This includes a person against who an involuntary petition has been filed, or he has filed a
voluntary petition, or has been adjudged a bankrupt.

Bankrupt Proceedings
- Proceedings initiated either by an insolvent individual or business(termed a voluntary
bankruptcy) or by creditor’s (terms an involuntary bankruptcy) seeking to either have the
debtor’s remaining assets distributed amongst

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