TANZANIA HIGH COURT DIGEST Volume 111 1969

TANZANIA

HIGH COURT DIGEST

Volume 111

1969

CITATION

These digests will be cited thus:

[1969] H. C. D.

Followed by the page number and,

In brackets, the case number

TANZANIA

HIGH COURT DIGEST

Faculty of law,

University College,

P. O. Box 35093,

DAR ES SALAAM

Method of Digesting.

In this volume of the High Court Digest, edited versions of cases are given whenever possible, rather than mere summaries. This is done particularly in reporting the holdings of a case, where quotation marks indicate that the actual words of the court are being reproduced. The resulting “digests”, we hope, are more citable and authoritative than formerly.

Citation of Digests

There has been no uniform method by which cases reproduced in the Digest can be cited. Formerly each issue of the Digest started its pagination afresh, so that if one wished to cite a case by the page on which it was found, it was also necessary to mention the month of the issue, as well as the year. In this volume, we will number pages consecutively throughout the years, so that when the twelve issues of a volume are bound they will form a single “book”. This allows a case to be cited merely by mentioning the year and the page number as follows: (1969) H.C.D. 25.

Classification of cases.

A new list of headings under which cases are classified is used in this volume. The heading used for civil cases are based on the index developed for the African Law Reports by Dr. Alan Milner. The headings used for criminal cases are based primarily upon chapters in the Penal Code, and shortly titles of statutes. A special issue of the Digest will be appearing shortly, containing a complete list of headings and sub-headings.

IDENTIFICATION OF CASES

The system of identifying cases which are digested is as shown by the following example:

“Ali s/o Hamisi v. R., (PC) Crim. App. 828 – D – 66; 19/1/67; Saidi J.”

(1) (2) (3) (4) (5) (6) (7) (8)

(1)Parties – the full name of each party is given, first. Where there are several plaintiffs, defendants, or accuseds only the name of the first party is given. “R” is the abbreviation used for “Republic”.

(2) Court of Origin – this indicates the type of court in which the case was originally head. “(PC)” stands for “Primary Court”< and “(LC)” stands for “Local Court”. Following the practice of the High Court in marking and numbering its judgments, no abbreviation is used when the case originated in a District Court.

(3) Type of Case – the following abbreviations will be used:

Criminal Appeals Crim. App.

Criminal Revisions Crim. Rev.

Miscellaneous Criminal Causes Misc. Crim. Cause

Criminal Sessions Crim. Sess.

Criminal Cases Crim. Case

Civil Appeals Civ. App.

Miscellaneous Civil Causes Misc. Civ. Cause

Civil Cases Civ. Case

Matrimonial Confirmations Matr. Conf.

Other abbreviations may be added as the need arises. All new abbreviations, and changes in the old ones, will be explained in the prefatory comments in each issue.

(4) Case Number – this is the number assigned to the case by the High Court in the series indicated by parts (2) and (3) of the citation.

(5) City – this indicates the city in which the case was heard, or to whose registry the case was assigned, by the High Court. “D” is Dar es Salaam; “A” is Arusha; “M” is Mwanza. Where these may not be appropriate, the name of the city is given

(6) Year of Filing – this indicates the year in which the case was filed with the High Court. And assigned as case number.

(7) Date of Decision – this is the date appearing on decision handed down by the High Court.

(8) Name of Justice – this indicates the High Court Justice who decided the case and wrote the judgment.

Thus, in the example given, “Ali s/o Hamisi v. R.” is Primary Court Criminal Appeal Number 828 of 1966 in the Dar es Salaam registry, decided on 19 January 1967, by Mr. Justice Saidi.

Inspection Notes. Inspection Notes contain information and counsel useful to magistrates and advocates alike, and are therefore included in this Digest. The cases involved are assigned number assigned by the court whose decision was considered by the High Court, the name of the court, and the city in which that decision was rendered. The date give is that of the issuance of the Note by the High Court.

NAME INDEX

(1)

Abasi s/o Ramadhani v. R. 1969/226

Abbasi Mohamed Comorian v. R. 1969/113

Abdallah s/o Robert and Beita d/o Michael v. R. 1969/39

Abdallah Ali v. R. 1969/298

Abdallah Khamisi Telekelo v. Salima d/o Hokelai 1969/197

Abdallah Zarafi v. Homamed Omari 1969/191

Abdallah s/o Ngwale v. R. 1969/211

Abdullah Ramadhan v. Asinate Kimomwe 1969/24

Abdulali Walji v. Maganlal Mulchand 1969/87

Abdulramahman Ali Shirazi v. R, 1969/111

Abel s/o Mtiana v. R. 1969/64

Aboul Iddi Milani v. R. 1969/115

Abudu Ame Ame Shirazi v. Dadiya Binti Hemed Shirazi 1969/77

Administrator General, Zanzibar, Administrator of

Estate of Topan Karsan Ramji alias Rashid Karsan

Ramji, Deceased v. Kulsam Fadhil Mussa and five others. 1969/80

Aggarwal v. Dhillon 1969/165

Ahmed s/o Osmani v. R. 1969/145

Ahmedi s/o Mohamedi v. R. 1969/235

Akbar Virji v. Emu Mwakang’ata 1969/288

Akber Merali Alibhai v. Fidahussein and Com. Ltd and others. 1969/270

Albert s/o Mwandenuka v. R. 1969/48

Ali bin Omar Rashid v. R. 1969/93

Ali bin Risasi v. R. 1969/125

Ali Said Shirazi v. R. 1969/124

Ali bin Khamis v. R. 1969/128

Ali Mohamed v. R. 1969/241

Alli s/o Iddi v. R. 1969/263

Alloys Anthony Duwe v. Ally Juyawatu 1969/268

Ambari s/o Zanga 1969/175

Ambindwile Kibona v. R. 1969/255

Amin N. J. Ltd. v. V. B. Patel & Co. Ltd. 1969/17

Amir s/o Ali v. R. 1969/41

Amour Muhammed Mazrui v. R. 1969/129

Amos John v. R. 1969/182

Andrea Nicodemo v. R. 1969/25

Andrew Mashamba v. R. 1969/305

Augustine Mhanga v. R. 1969/149

Arusha General Stores v. Mawji 1 1969/160

Arusha General Stores v. Mawji 11 1969/161

Athumani s/o Pembe v. R. 1969/229

Athumani Ibuda v. Salim s/o Jeu 1969/200

Attilio v. Mbowe 1969/284

Ayub issa and two others v. R. 1969/68

Bachu bin Abdulrahmani Indian v. R. 1969/121

Bakari s/o Hamisi v. R. 1969/311

Bakari Basegese Mrundi v. Mowlem Construction Co. 1969/82

Barthomeo Daniel v. R. 1969/300

Bhanbir s/o Versi and another v. R. 1969/243

Cletusi s/o Sefu v. R. 1969/314

Clipper bin Anasis v. R. 1969/118

Commissioner General of Income Tax v. Nuruddin Hassanali

Noorani 1969/202

Constantine Bulagile v. Bi Genereza Mashakala 1969/20

Costas Papadopoules v. R. 1969/237

Dabili s/o Mani 1969/154

Damian Christoper v. R. 1969/178

Daudi Milamibulo v. R. 1969/37

Daudi Mtwe v. R. 1969/55

Daud Abdalla v. Naraisningh Khansingh 1969/86

Eli Nsambila v. R. 1969/63

Eliakim s/o Nicholaus v. R. 1969/231

Emmanuel Paul v. Wilfred Rwemigira 1969/12

Ernest Uchai v. Eunice Elikana 1969/2

Ernest Joseph v. R. 1969/147

Eston Mwaipopo v. Simithy Manyafu 1969/192

Evelyine d/o Mathias v. R. 1969/245

Faustine Manoni v. R. 1969/29

Fatehali Ali Jessa v. Shabani Kapera and two others. 1969/85

Felician s/o Zaburuza v. R. 1969/67

Ghankurh Vilas Cashew Industries v. Hadman Kasim and Co. Ltd. 1969/141

Gosbert Mujumzi v. Dihumulali Matonde. 1969/138

Gurbachan S. Pardesi v. Mrs. Zerakhanu J. G. Meghji. 1969/266

(111)

Haji bin Khamis v. R. 1969/119

Hamadi Ali Omar v. R. 1969/109

Hamisi Sinbato v. Gladness Haduri 1969/194

Hamadi Ramadhani Mnyasa v. r. 1969/116

Hard Fibres Ltd. v. Tanganyika Electric Supply Co. Ltd. 1969/135

Hassani s/o Shenlugu 1969/45

Hassani Msange Sarota v. R. 1969/40

Hassani K. Njokole v. R. 1969/215

Hassani Abdulla v. R. 1969/120

Hassani bin Vusu Mnyasa v. R. 1969/100

Hassani Mohamed Kermali v. Khaku Rajpar’ &Co. 1969/83

Hattan v. R. 1969/234

Haula Dad & Rose (Tanganyika) Ltd. v. Hem Singh 1969/201

Hussein bin Adam v. R. 1969/98

Ibrahim Ramadhani v. R. 1969/218

Iddi s/o Nyanza v. Yonaza s/o Mboja &others 1969/289

Ignace Kassula v. Oscar Kazaula 1969/140

Ikaka s/o Murenda v. R. 1969/35

In the Matter of an intended appear between

Mbaruku Khamis and Abbas Moshoka and Ali

Saleh Suleman Ismail. 1969/84

In the Matter of Antonio Natalicchio Prob and Admin. Cause. 1969/142

In re Eastern Province – Transport Co.

Ltd., Procetti v. Adinistrator General 1969/164

Isidori Ndethnga v. Eugen Mangalili 1969/186

Issa Tasilima v. Sefu Ranyamigila 1969/139

Issa Mbarak v. R. 1969/122

Issa Nkalinga v. R. 1969/74

Itta s/o Lwangwa and Eliwario s/o Thomas v. R. 1969/253

Jackson Ochwalo s/o Oniyiwa v. R. 1969/27

Jackson Lesirango v. Pantaleo Kirboi 1969/277

James s/o Jackob and another 1969/310

James s/o Selemani v. R. 1969/216

James Malawi v. R. 1969/172

Japhet Mwangwa v. Mtemi Senge 1969/21

Jeremiah Njau v. R. 1969/308

John Luli v. R. 1969/299

John Opio and another v. R. 1969/59

John s/o Mhanze 1969/62

John Joseph v. R. 1969/171

(1V)

John Maduhu v. R. 1969/174

John Charles Haule v. R. 1969/210

John Mchenya v. R. 1969/303

Joseph Lello v. R. 1969/158

Joseph Lelo v. R. 1969/260

Joseph Aliphonce v. R. 1969/106

Juma Mkurasi v. R. 1969/72

Juma Musho v. R. 1969/61

Juma bin Hamadi v. R. 1969/94

Juma Gora Haji v. Abbas Hajab 1969/88

Juma bin Kombo Mnyamwezi v. R. 1969/126

Juma King’ombe v. R. 1969/179

Juma Kisuda v. Hema Mjie 1969/188

Juma s/o Legeza v. R. 1969/244

Kampala s/o Mateo v. R. 1969/92

Kassian Paul Kanta v. R. 1969/43

Kasyupa Mwakabuta v. Salimu Mwalubwelo 1969/52

Kastumu bin Mathias v. R. 1969/102

Kasella Bantu and others 1969/170

Khamis Bin Mohamed Hassan v. Mwana Alama binti

Haji Juma Mtumbatu 1969/78

Khamis Haji Bajun v. R. 1969/114

Khamis Suleiman v. R. 1969/117

Khamis bin Haji Mtumbatu v. R. 1969/134

Khatibu Haji Shirazi v. R. 1969/95

Khushalbhai R. Patel (t/a Patel Flour Mills v.

Laloobhai A. Patel and others (as partners in Bombay Floor Mill). 1969/187

Kibonge s/o Ramadhani v. R. 1969/28

Kitwana s/o Bakari 1969/208

Klosser A. J. v. R. 1969/183

Kondo bin Ali Mtumbatu v. R. 1969/132

Lalji Gajjar v. Karim 1969/294

Lawrence s/o Makabayi v. R. 1969/34

Lesso v. Neiliang Melita 1969/285

Levi s/o Nyoro v. R. 1969/73

Lodrick Kisamo – (Adminstrator of the

Estate of Gilbert Andrew Kisamo v. Onaufoo Kandaeli 1969/205

Lubundki Mkanga s/o Malunde v. R. 1969/144

Lucas Cosmas v. R. 1969/302

Lukia Saidi v. R. 1969/49

Lukas Masirori Kateti v. Oloo Sebege 1969/11

(V)

Madhur Kapadia v. R. 1969/103

Madirisha s/o Kitikiti v. R. 1969/233

Mahundya Mburmatare v. Mugendi Nyakangara 1969/7

Makangore s/o Kindai and others v. R. 1969/239

Makame bin Chumu v. R. 1969/96

Makuzi Zaidi and another 1969/249

Makeja s/o Mashawii v. R. 1969/220

Maddened s/o Kisunte 1969/5

Malek P. Manji (Mrs) v. Mrs. Halima M. Hizam 1969/272

Mangangi Mbuki v. R. 1969/251

Manubhai R. Patel v. R. 1969/176

Margaret Andrew v. R. 1969/3

Margovind Savani v. Juthalala Velji Ltd. 1969/78

Marwa Mbau v. Ligamba Eringo. 1969/14

Marcel Mpembee v. R. 1969/222

Maryam bint Ahmed v. Ali Salim Mohamed 1969/79

Maseore Mwita v. Rioba Masaro 1969/199

Matiko Chabha v. Mathias Mwita 1969/8

Matiko Chacha v. Mathias Mwita 1969/196

Mathias Pirmin v. R. 1969/240

Mazengo s/o Magala v. R. 1969/156

Mazunguewa d/o Chilennu v. Mwango s/o Chilennu 1969/282

Mboya R.F. v. Mewa Singh Mangat 1969/1

Mboya v. Kitambia and others 1969/168

Mkakofia Meriananga v. Asha Ndisia 1969/204

Mkoya s/o Shabani v. R. 1969/232

Mohamed Bandihai v. Vedasto Kabakama 1969/166

Mohamed H.S. Dewji v. The Commissioner of In come Tax 1969/207

Mohamed Hassan v. R. 1969/71

Mohamed s/o Omari Shirazy 1969/99

Mohamedali Husseinbhai v. R. 1969/307

Mohamed bin Alias Ali Mohamed v. R. 1969/123

Mohamed Salum Mzaramo v. R. 1969/127

Mohamed bin Mahoud Mazrui v. R. 1969/130

Mohamed Ally v. R. 1969/54

Msangi v. R. 1969/238

Muna Siasi v. R. 1969/223

Mussa Salim Othman v. R. 1969/91

Mussa Chegere v. Marwa Nyanchama 1969/281

Mustafa s/o Said v. R. 1969/146

Mwaipopo s/o Mwakibale v. Mtelina d/o Nbimbile 1969/50

Mwahela Kibungo v. Mudabe Muhungula 1969/167

Mwehela Kibungo v. Mudabe Muhungula 1969/274

Mwita s/o Muhoni v. R. 1969/47

(V1)

Mzee Abubakar v. Salum Selemani and another 1969/279

Naradlal Ambasana v. Harlal Mahta 1969/291

Naran Singh v. R. 1969/108

Natory Mugalagala v. Felician Timanyika 1969/10

Nesto Kilabi v. R. 1969/306

Ndamugoba Herman v. Byarugaba Herman 1969/51

Ngaremtoni Coffee Estate Ltd. v. Commissioner of

Income Tax 1969/265

Ngidi s/o Paul v. R. 1969/153

Ng’washi Kamwezi v. Bunga Kulaba 1969/267

Nurdin Abdulhusein v. R. 1969/131

Nyamangara Francis v. R. 1969/258

Nyirenda v. National Union of Tanganyika Workers

And others 1969/162

Oddo Fungareza Meets v. R. 1969/252

Odero s/o Obila v. R. 1969/53

Official Receiver as Trustee of Kishan Singh

Sandhu v. Makund Ran Aggrawal 1969/15

Omari s/o Saidi v. R. 1969/42

Omari s/o Athumani and another 1969/65

Pancililo s/o Hassani v. R. 1969/217

Pascal s/o Mtaka v. R. 1969/213

Paskari Joseph v. R. 1969/225

Paskazia d/o Lutahikilwa v. Felician 1969/137

Patel D.M. v. R. 1969/60

Paul Makimela v. R. 1969/30

Peter John v. Richard Barongo 1969/19

Peter Zakaria v. R. 1969/236

Peter Msunovi v. R. 1969/257

Peter Lugayula v. R. 1969/69

Peter Merishoki v. Barnabas Kiriri 1969/286

Petro s/o Muna v. R. 1969/31

Philipo Mtoakodi v. R. 1969/38

Pili d/o Kafiti v. R. 1969/152

Pius s/o Hassan v. R. 1969/148

Puri H. c. & Co. v. R. 1969/181

Rajabu s/o Juma v. R. 1969/304

Ralang Mumanyi v. Wambura Mwita 1969/2

Ramadhani Juma and others 1969/315

(V11)

Ramadhani Mugwena v. R. 1969/159

Ramzanali G. Virji v. R. 1969/259

Rashidi s/o Abdallah 1969/70

Rashidi s/o Mfaume v. R. 1969/155

Rashidi Saidi v. R. 1969/230

Re Innocent Mbilinyi, deceased 1969/283

Re Robert William Stafford Bird, deceased 1969/297

Region Land Officer, Tabora – Harub Haited 1969/275

Rehmtulla Bandali v. The Commissioner of Transport The

East African Railways & Harbours Administration 1969/293

Reliance Marine Insurance Co. v. Khabu Rajpar & Co. 1969/81

Reverian Byamanyilwohi v. John Mutengana 1969/169

Robert s/o Mwamaso v. Mwangwala s/o Mbyuta 1969/13

Rockland International Corporation v. Alloys

Anthony Duwe and another 1969/269

Romani s/o Modesti &two others v. Amiri s/o Kitego 1969/22

Rosa d/o Wilbald v. Ebnezer s/o Yosia 1969/195

Rourafric Trading Ltd. v. Kassamali G. Peera 1969/76

Rwelamila s/o Kaijage v. R. 1969/143

Sabihi Duka v. Amani Huruma 1969/290

Sabo Bukenyera v. Mwizarubi Malayarubazi 1969/190

Sachak v. Ferdinand Kabuye 1969/292

Sadik Budha Ilyas v. R. 1969/97

Said Rasamu Tamimi v. R. 1969/90

Saidi Abdulla Riyami v. R. 1969/107

Saidi bin Juma Abrawy v. R. 1969/133

Sakaya s/o Kingesler v. Long’idu s/o Ngitalangile 1969/271

Salim bin Ali v. R. 1969/112

Salum s/o Sefu v. R. 1969/177

Salehe Abdallah v. R. 1969/254

Salehe Arepi v. Mohamed Khan 1969/273

Salehe Mahamburi v. Noseni Mrinda 1969/276

Salvatori Tena v. William Mkodo 1969/18

Samson s/o John 1969/66

Sambu Ng’osha v. R. 1969/261

Sangija Kanyambo and another v. R. 1969/58

Sawe E.D.U. v. R. 1969/180

Sawe E.D.U. v. R. 1969/228

Sebastina Lothi and others v. R. 1969/184

Selemani s/o Hassani v. R. 1969/250

Selestian Magalama v. R. 1969/219

Selerin Mriringe v. R. 1969/301

Shabani Hida Omari v. R. 1968/56

Shabani Matando v. R. 1969/57

(V111)

Shaban Ibrahim v. R. 1969/212

Shabani Mbunda v. R. 1969/75

Shabani Mwalyambwile v. R. 1969/256

Sherali Issack Nareja v. R. 1969/110

Shija Maziku v. Mpemba Nzunya 1969/4

Shoma d/o Jungu v. R. 1969/151

Simjana s/o Nteli and another 1969/247

Simlongole v. Kitinyi 1969/185

Stanislaus Saroni Maresi v. R. 1969/32

Stanslaus s/o Kyamwibula 1969/150

Sultan Maginga v. R. 1969/33

Sultan Habib v. R. 1969/89

Swalehe s/o Mohamed 1969/44

Sylvester R. Machusi v. R. 1969/227

Tahir Ali v. R. 1969/105

Tanzania Tailors v. Kashavji Lalji 1969/296

Tanzania Exhibitors Limited v. Karimhai Hassanali

Adamji Jariwalla 1969/203

Thaker singh v. R. 1969/46

The National Bank of Commerce v. Manubhai

Shankarbhai Desai and others 1969/206

Thomas Bangili and Samike Maduhu 1969/246

Thomas Jorrat v. R. 1969/157

Tomson s/o Msumali v. R. 1969/26

Tribhon Gokaldas v. R. 1969/101

Tumanieli v. Aisa d/o Issai 1969/280

Ulijah Lufiroo v. Mwakinomo Mwakaje 1969/189

Umbwa Mbegu and another v. R. 1969/312

Valerian Paul v. Registrar of Co-operative Societies and

Narumu Munushi Co-operative Society Ltd. 1969/295

Victor Juma Shaaban v. R. 1969/221

Wabil Abushir Mnubi v. R. 1969/104

Wambura Kanga v. Khuria Nyakura 1969/198

Wandwi s/o Muhagachi 1969/224

Waryoba d/o Katera v. Kirimi s/o Wangari 1969/6

Waziri Kofia v. R. 1969/209

Welesi Kwandai s/o Maleke v. R. 1969/214

(1X)

William s/o Simon & Mmari v. R. 1969/173

William Andrea Shangarai v. Farm Vehicle Ltd. 1969/16

Willson s/o Katanda v. R. 1969/313

Yasin Osman v. Kulthum Ali Kara 1969/262

Yasin s/o Selemani v. R. 1969/136

Yohana Majuni v. Isaya s/o Bakobi 1969/23

Yusufu Hussein v. R. 1969/36

Yusufu Khatri v. R. 1969/242

Yusuf Salim Mkaly v. R. 1969/264

Zanfra v. Duncan and another 1969/163

Zebedayo Naftali v. Telezea Mamlya 1969/287

Zuberi s/o Rashid and Adam s/o Kibwana v. R. 1969/248

Zuhura d/o Yusufu v. Juma Said 1969/193.

CIVIL INDEX

CIVIL

CV.1

ADMINISTRATIVE LAW (See also; LANDLORD AND TENANT

Natural justice – Rent Tribunal 1969/292

ADULTERY

See: FAMILY LAW – Adultery.

ADVERSE POSSESSION

See: LAND LAW – Adverse possession.

AFFIDAVITS

See: PROCEDURE – Affidavits.

AFFILIATION

See: FAMILY LAW – Parentage.

ALIENS AND NATIONALITY

See: CRIMINAL INDEX – ALIENS AND NATIONALITY

APPEAL

Appeal out of time

Delay of eighteen months too long even where money for court fees was lacking. 1969/271
Special circumstances – Zanzibar Revolution of 1964. 1969/84 (Zanzibar).
Dismissal of appeal for non – appearance – When court may set aside its own order, and readmit appeal. 1969/191.
East Africa Court of Appeal – Extension of time to lodge appeal – “Sufficient reason”. 1969/15.
Order appealed from – Certified copy required. 1969/83 (Zanzibar).

Parties to appeal

Defendant’s insurers may apply for leave for leave to appeal on behalf of defendant. 1969/84 (Zanzibar).
Surcharge under s. 71(2), Cooperative Societies Act – Cooperative Society should not be joined as party to appeal. 1969/295.

Rent Restriction Act – Order of resident magistrate refusing to set aside order for possession made by predecessor is appealable. 1969/296.

Retrial - Order ambiguous. 1969/138.

Revision

District Court may quash Primary Court judgment without hearing parties. 1969/138.
High Court’s powers on revision not limited to cases from which no appeal lies. 1969/272.

APPEARANCE

See: PROCEDURE – Appearance.

ARBITRATION

Evidence – Inadmissible – Decision cannot be based on. 1969/141.

CIVIL

CV.2

ARUSHA LAW

See: CUSTOMARY LAW – Arusha law.

ASSESSORS

See: PROCEDURE – Assessors.

ASSOCIATIONS

Companies

Agreement made prior to incorporation cannot be ratified – whether new agreement comes into existence is question of fact. 1969/265.
Liquidation – Whether receiver appointed with respect to company in receivership is same “person” as original company. 1969/135
Promoters – No right of indemnity against company promoted as regards obligations undertaken before incorporation. 1969/265.
Cooperatives – Surcharge under s. 71(2) of Cooperative Societies Act – Cooperative Society should not be joined as party to appeal. 1969/265

Partnership

Assignee of right in partnership not entitled to interfere in management, only entitled to share of profits. 1969/269.
Execution of decree against – Partner not named in decree. 1969/187.
Temporary injunction may be granted to prevent probable wastage of partnership property. 1969/268.

AUCTION

See: LAND – Sale of clan land – Auction.

BAILMENT

Loss of goods bailed – Bailee has no absolute liability – Customary law. 1969/14.

BOUNDARY TREES

See: LAND – Boundary trees.

BREACH OF CONTRACT

See: CONTRACT – Breach.

BRIDEWEALTH

See: FAMILY LAW – Bridewealth.

BURDEN OF PROOF

See: EVIDENCE – Burden of proof.

CHAGGA LAW

See: CUSTOMARY LAW – Chagga law.

CHIEFS

See: LAND – Allocation.

CIVIL

CV.3

CHILDREN

See: FAMILY LAW.

CHOICE OF LAW

See: CONFLICTS OF LAWS.

CLAN LAND

See: LAND LAW – Pledge of clan land: LAND LAW – Sale of clan land.

COMPANY LAW

See: ASSOCIATIONS – Companies.

COMPENSATION FOR IMPROVEMENTS

See: LAND LAW – Compensation for improvements.

CONFLICTS OF LAWS

Family law – Divorce – Custody of children. 1969/136.
Gifts and distribution of estates – Islamic law governs where deceased was Muslim. 1969/80(Zanzibar).
Succession – Mode of life test – Facts amounting to rejection of Chagga law. 1969/283

CONSTITUTIONAL LAW

Immigration – Union matter. 1969/97. (Zanzibar).

CONRTACT

Breach

· Fundamental – Breach of condition converted into breach of warranty when buyer of unworkable vehicle does not refuse to accept delivery. 1969/1

· Letters of credit – Failure to open in prescribed time. 1969/141.

· Damages – Allowed for expenses incurred due to false representations of other party. 1969/194.

· Letters of credit. See: CONTRACT – Breach.

· Marriage – Promise to marry. See: FAMILY LAW – Promise to marry.

· Parties – Whether receiver appointed with respect to company in receivership is same “person” as original company. 1969/135.

Sale of goods

· Cattle – Condition of refund if death occurs within six months – Nyakyusa law. 1969/189.

· Doctrine of “caveat emptor” does not apply in customary law. 1969/189.

· Payment by letters of credit – Failure to open in prescribed time. 1969/141.

Sale of land. See: LAND – Sale of land.

Usage – May be proved by parol evidence to supplement terms of written contract. 1969/141.

CIVIL

CV.4

CONTRACT (Contd.)

Waiver – Entry into fresh contract – Whether constitutes waiver of rights arising under old contract. 1969/135.

CONVERSION

See: TORT – Conversion.

COOPERATIVES

See: ASSOCIATIONS – Cooperatives.

COSTS

See: PROCEDURE – Costs.

COURTS

See: PROCEDURE – Jurisdiction.

CUSTODY OF CHILDREN

See: FAMILY LAW – Custody of children.

CUSTOMARY LAW

Application

· Burden of proof – Customary land cases should not be decided on basis of burden of proof. 1969/276.

· Custom which “dangerously encroaches on individual rights of property” not enforced. 1969/199.

· Custom which is unreasonable and outdated should not be enforced. 1969/282.

· Custom which would cause difficulty if applied unreservedly should be restricted. 1969/280.

· Outdated custom – Award of one cow for upbringing of child or “mtonga”. 1969/188.

Arbitration by elders – Not criminal offence if settlement of minor, personal or private dispute done in accordance with customary law. 1969/289.

Arusha law – Land law – Compensation for improvements. 1969/285.

Chagga law

· Land law – Ownership of boundary trees. 1969/186.

· Land law – Women’s rights to inherit land. 1969/277.

· Tort – Defamation. 1969/280.

· Tort – Liability for fall of boundary trees. 1969/186.

· Succession – Women’s rights to inherit land. 1969/277.

Customary law Declaration

· Application – Not applicable to events occurring in 1944.

· Family law – Adultery of wife: - Courses open to parties. 1969/195.

· Family law – Bridewealth. 1969/281; 1969/282

· Family law – Custody of Children – Adulterous child. 1969/4.

· Family law – Custody of children – Illegitimate child. 1969/3.

· Family law – Divorce – Bridewealth. 1969/8; 1969/9; 1969/50; 1969/196.

CIVIL

CIV.5

CUSTOMARY LAW (Contd.)

Customary law Declaration (Contd.)

Family law – Guardianship. 1969/10.
Family law – Marriage – Validity. 1969/7.
Family law – Parentage – Child born in wedlock not subject to legitimatization by another unless repudiated by reputed father. 1969/185
Family law – Parentage – Child cannot renounce paternity of one man and adopt that of another. 1969/185.
Family law – Parentage – Impotent husband. 1969/267.
Land – Sale of clan land – Redemption – Period of limitation. 1969/140

General

Bailment – Loss of goods bailed. 1969/14.
Family law – Custody of children. 1969/5; 1969/6.
Family law – Maintenance of children 1969/5.
Family law – Parentage of adulterous children. 1969/5
Family law – Return of bridewealth. 1969/5.
Succession – Wills – Bridewealth. 1969/19.

Gogo law – Family law – Bridewealth. 1969/282.

Ha law – Land law – Formalities accompanying sale, 1969/274.

Haya law

Family law – Illegitimate children – Legitimatization. 1969/19.
Land – House built partially on land of another. 1969/51.
Land – Nyarubanja Tenure (Enfranchisement) Act – Transfers of courts. 1969/138.
Land – Nyarubanja Tenure (Enfranchisement) Act – Transfers of enfranchised land. 1969/139.
Land – Sale of clan land – Redemption period. 1969/12; 1969/140.
Land – Sale of clan land Redemption price. 1969/12; 1969/140.
Land- Sale of clan land by public auction. 1969/137.
Succession – wills – Distribution of “the big house”, the Nyaruju. 1969/51.
Succession – Wills – Women may not inherit immoveable. 1969/20.

Kuria law – Family law – Obligation of father to furnish bridewealth required by son not enforceable by courts. 1969/199.

Limitation period. See: LIMITATION OF ATIONS – Customary law actions.

Nyakyusa law

Contract – Sale of cattle. 1969/189.
Family law – Divorce – Pension. 1969/50.
Family law – Divorce – Return of bridewealth. 1969/50.
Land law – Allocation by chief. 1969/52.

CIVIL

CIV.6

CUSTOMARY LAW (Contd.)

Nyaturu law

Family law – Custody of children. 1969/188.

Family law – Maintenance. 1969/188.

Proof – Required. 1969/11; 1969/286.

DAMAGES

See: CONTRACT, TORT.

DEFAMATION

See: TORT – Defamation.

DEPOSIT

See: BAILMENT.

DIVORCE

See: FAMILY LAW – Divorce.

DOWRY

See: FAMILY LAW – Bridewealth.

EAST AFRICA COURT OF APPEAL

See: APPEAL.

EAST AFRICA RAILWAYS AND HARBOURS ACT

See: RAILWAYS AND HABOURS ACT.

EVIDENCE (CIVIL)

Burden of proof – Customary land cases should not be decided on basis of burden of proof. 1969/276.
Documentary evidence – Report of customs officer as to condition of goods, including remarks on reverse side of report form – Admissible. 1969/81 (Zanzibar).
Extra – judicial statements made to magistrate during visit to site – Inadmissible. 1969/13.
Unsworn testimony – Inadmissible. 1969/77(Zanzibar).
Usage – May be proved by parol evidence to supplement written contract. 1969/141.

FALSE IMPRISONMENT

See: TORT – False imprisonment.

FAMILY LAW

Adulterous children

Custody. See: FAMILY LAW – Custody of children.

Maintenance. See; FAMILY LAW – Maintenance.

Parentage. See: FAMILY LAW – Parentage.

CIVIL

CV.7

FAMILY LAW (Contd.)

Adultery

Adulterous wife cannot sue seducer – Husband alone can sue.-Customary Law Declaration. 1969/195.
Courses open to husband whose wife gives birth to child conceived in adultery. – Customary Law Declaration. 1969/195.
Affiliation. See: FAMILY LAW – Parentage.
Bridewealth (See also: FAMILY LAW – Divorce)
Adulterous children – Legal father entitled to receive bridewealth. 1969/5.
Agreement to return bridewealth on death of wife not enforceable – Customary Law Declaration. 1969/281.
Obligation of father to furnish bridewealth required by son not enforceable by courts – Kuria Law. 1969/199.
Person entitled to receive is father – Customary Law Declaration. 1969/282.

Custody of children

Adulterous children – Lawful husband has right of custody – Other considerations irrelevant – Customary Law Declaration. 1969/4
Adulterous children – Mother who has raised child since infancy has right to custody. 1969/5.
Adulterous children – Welfare of child first consideration. 1969/5.
Husband of divorced wife not entitled to child conceived during “eda” where father is third party – Islamic law. 1969/197.
Illegitimate children – Mother’s right to custody may be ever ridden in the interests of child. – Affiliation Ordinance. 1969/3.
Legitimate children – Welfare of child main consideration. 1969/6; 1969/136; 1969/267.
Welfare of children – Welfare of child main consideration – Nyaturu law. 1969/188.

Divorce

Bridewealth. See also: FAMILY LAW – Bridewealth.
Bridewealth – Claim for refund maintainable only against parents of wife not against wife herself. 1969/5.
Bridewealth – Father of divorced wife must return proportionate part of original bridewealth on subsequent remarriage of his daughter – Customary Law Declaration. 1969/196.
Bridewealth – No refund, normally, where children born- Customary Law Declaration. 1969/8.
Bridewealth – No refund, where divorce not first obtained. – Customary Law Declaration. 1969/9.
Bridewealth – Partial refund where woman remarries and bridewealth given by new husband – Customary Law Declaration. 1969/8; 1969/50

CIVIL

CV.8

FAMILY LAW (Contd.)

Divorce (Contd.)

Change of religion- A Christian woman converted to Islam on marriage but reverting to Christianity on divorce is not bound by Muslim rules relating to “eda” – Islamic law. 1969/197
Grounds for – Serious disputes inadequate – Islamic Law. 1969/78 (Zanzibar).
Pension – Divorced wife entitled to – Nyakyusa law.
Dowry. See: FAMILY LAW – Bridewealth.
Guardianship – Woman may not be guardian of minor. – Customary Law Declaration. 1969/10.
Illegitimate children (see also: FAMILY LAW – Parentage)
Custody. See: FAMILY LAW – Custody of children.
Legitimatization – Child born in wedlock not subject to legitimatization by another unless repudiated by reputed father – Customary Law Declaration. 1969/185.
Legitimatized by payment of money by father for child’s clothing – Haya law. 1969/20.

Maintenance

Adulterous children – Legal husband of mother has duty of maintenance. 1969/5.
Award of one cow for upbringing of child or “mtonga” declared outdated custom. – Nyaturu law. 1969/188.
Cost of maintaining child in village set at Shs. 100/- per year. 1969/188.
District Courts (Separation and Maintenance) Ordinance. – Applies only to monogamous marriages. 1969/2.
Parentage – Child cannot renounce paternity of one man and adopt that of another – Customary Law Declaration. 1969/185.
Res judicata – Whether maintenance order can be discharged by subsequent ruling. 1969/2

Marriage

Change of sect by either spouse does not necessarily nullify marriage. 1969/290.
Fire worshippers and idolaters – Muslims may not marry – Islamic law. 1969/290
Restitution of conjugal rights – Islamic laws. 1969/290.
Validity – Marriage certificate essential – Customary Law Declaration. 1969/7.

Parentage

Child born to wife of impotent man seven months after divorce is deemed to belong to him – Customary Law Declaration. 1969/267.
Children born of adulterous association – Lawful husband presumed to be father. 1969/5.
Promise to marry – Specific performance cannot be ordered – Damages only remedy for breach – Islamic law. 1969/79(Zanzibar)

CIVIL

CV.9

FEES

See: PROCEDURE – Costs.

FIRE

See: TORT – Fire

GIFTS

Requirement for validity – Islamic law. 1969/80 (Zanzibar)

GOGO LAW

See: CUSTOMARY LAW – Gogo law.

GOVERNMENT ACTIONS

See: LIMITATION OF ACTIONS – Government actions.

GOVERNMENT LEASES

See: LAND – Government leases.

GUARDIANSHIP

See: FAMILY LAW – Guardianship.

HA LAW

See: CUSTOMARY LAW – Ha law.

HAYA LAW

See: CUSTOMARY LAW – Haya law.

HIRE PURCHASE

See: CONTRACT.

ILLEGITIMATE CHILDREN

See: FAMILY LAW – Illegitimate children.

IMMIGRATION

See: ALIENS AND NATIONALITY: CONSTITUTIONAL LAW.

IMPROVEMENTS

See: LAND LAW – Compensation for improvements.

INCOME TAX

Appeal to High Court

Burden of showing excessiveness of assessment remains on taxpayer. 1969/202; 1969/207.
Court approaches issues of fact as res Integra. 1969/202; 1969/207.
New points of law may be raised. 1969/207.
Construction of income tax statutes – Principles. 1969/202.
Deductions – Expenses incurred by vendor of land are deductible by buyer who agrees to pay for them as consideration for sale, 1969/265.
“Home” – Defined. 1969/202; 1969/207.

CIVIL

CV.10

INCOME TAX (Contd.)

“Home” – Plurality of homes possible. 1969/202; 1969/207.
Income – Revenue from sale of crops on recently purchased land is income although used to pay purchase price of land under sale agreement. 1969/265.
“Resident” – Discussed. 1969/202; 1969/207.
“Resident” – Plurality of residences possible. 1969/207.

INHERITANCE

See: SUCCESSION.

INJUCTIONS

See: PROCEDURE – Injunctions.

INSURANCE

Marine Insurance Act
Theft – Burden of proof. 1969/81 (Zanzibar).
Theft – Definition of. 1969/81(Zanzibar)
Policy taken out by landlord under obligation in lease – Tenant with notice of warranties in policy in breach of terms of lease. 1969/293.

INTERLOCUTORY APPLICATIONS.

See: PROCEDURE – Interlocutory applications.

INTERPRETATION OF STATUTES

See: STATUTES.

INTESTACY

See: SUCCESION – Intestacy.

ISLAMIC LAW

Family Law

Custody of children – Husband of divorced wife not entitled to child conceived during “eda” where father is third party. 1969/197.
Custody of children – Welfare of child main consideration 1969/136.
Divorce – A Christian woman converted to Islam on marriage but reverting to Christianity on divorce s not bound by Muslim rules relating to “eda”. 1969/197.
Divorce – Grounds for. 1969/78. (Zanzibar).
Marriage – Change of sect by spouse. 1969/290.
Marriage – Muslims may not marry fire worshippers and idolaters. 1969/290.
Marriage – Restitution of conjugal rights. 1969/290.
Promise to marry – Specific performance cannot be ordered Damages only remedy for breach. 1969/79. (Zanzibar)
Gifts – Requirements for validity. 1969/80. (Zanzibar).

CIVIL

CV. 11

JURISDICTION

See: PROCEDURE – Jurisdiction.

JURISPRUDENCE

Reception of English law

Fire prevention (Metropolis) Act, 1774 – Of general application in Tanzania. 1969/293.
Law of self – defence. 1969/54; 1969/89.

KURIA LAW

See: CUSTOMARY LAW – Kuria law. LABOUR LAW

Oral contract – Unenforceable. 1969/82. (Zanzibar).

Termination – Oral employment contract unenforceable – notice not required. 1969/82. (Zanzibar)

LAND LAW

Adverse possession

Fifteen years occupation gives little. 1969/286.
Occupant not relieved of duty to show title. 1969/276.
Thirty years occupation as tenant insufficient to establish claim. 1969/204.
Three years insufficient to establish claim even where claim supported by public policy. 1969/200.

Allocation

Land allocated by chief – allocation upheld – Nyakyusa law.
1969/52.
Land already occupied – Village Development Committee should not reallocate in absence of occupant. 1969/11.
Village Development Committee – Allocation upheld although contrary to title of ownership established by sale. 19969/198.
Boundary trees – Joint ownership – Chagga law. 1969/186.
Clan land – See: LAND LAW – Pledge of clan land: LAND LAW – Sale of clan land.
Compensation for improvements
Allowed after thirty years occupation by evicted tenant. 1969/204.
Redemption of land – Redemptor entitled to compensation from original owner who reclaims land – Haya law. 1969/140.
Title dispute – Compensation allowed – Arusha law. 1969/285.

Government leases

Disposition of – Agreement for sale of government lease not capable of specific enforcement unless Commissioner’s consent has been obtained. 1969/206.
Disposition of – Transferee has no interest in property before the Commissioner’s consent has been obtained. 1969/206.

CIVIL

CV.12

LAND LAW (Contd.)

House built partially on land of another – Haya law. 1969/51.
Licence to occupy land – Occupant should not be dispossessed at owner’s whim. 1969/274.
Limitation period. See: LIMITATION OF ACTIONS – Land.
Mining Ordinance

Joint holders – Legal status. 1969/269.

Joint holders – Rights to transfer. 1969/269

Mining claims – Joint registration – Legal basis for practice unclear 1969/269.

Nyarubanja Tenure (Enfranchisement) Act
Jurisdiction of courts not excluded. 1969/138.
Transfers of enfranchised land void until rules made under Act – Primary court entitled to grant transferee use of land. 1969/139.
Possession. See: LAND – Adverse possession.
Redemption of clan land. See: LAND LAW – Compensation for improvements; LAND LAW – Pledge of clan land; LAND LAW – Sale of clan land.

Sale of clan land

Auction by court order – No redemption possible – Haya law. 1969/137.
Redemption – Limitation period of six months – Haya law. 1969/12.
Redemption – Limitation period of twelve years. – Haya law as altered by Customary Law Declaration. 1969/140.
Redemption – Original owner has right to claim land redeemed by relative on payment of redemption price plus improvements. – Haya law. 1969/140.
Redemption – Price includes improvements effected during redemption period. Haya law. 1969/12.

Sale of land

Formalities – Ha law. 1969/274.
Property in crops passes to buyer despite agreement to pay seller directly from sale of crops. 1969/265.
Title to land – Customary land cases should not be decided on the basis of burden of proof – Where evidence is unsatisfactory, court should call witnesses on its own initiative. 1969/276.
Women – Rights to inherit land – Chagga law. 1969.277.
Village Development Committee. See: LAND – Allocation.

LANDLORD AND TENANT

Appeal – Order of magistrate refusing to set aside order for possession is appealable – Rent Restriction Act. 1969/296
Distress. See: LANDLORD AND TENANT – Rent.

CIVIL

CV. 13

LAND AND TENANT (Contd.)

Agreement as to key – money severable from main contract – Rent Restriction Act. 1969/294
False promise by tenant to pay on entering into tenancy – Does not disentitle tenant from relief. – Rent Restriction Act. 1969/294.

Lease

Breach – Notice of tenant of terms of insurance policy taken out by landlord led to his being in breach. 1969/293
Forfeiture of – Conditions governing; 1969/287.
Mesne profits – Resident Magistrate’s Court has power to assess, despite lack of jurisdiction as regards standard rent. 1969/294.

Rent

Non-payment – Deposit against damage cannot be set off against rent due. 1969/287.
Non-payment – Distress levied by lessor – Conditions governing. 1969/287.
Non-payment – Distress levied by lessor – Irregularities subsequent to levy do not render unlawful. 1969/287.

Repairs

Failure by landlord to carry out needed repairs – Standard rent may be reduced until repair carried out. – Rent Restriction Act. 1969/279; 1969/291.
Landlord’s obligations – Rent Restriction Act. 1969/291.
Tenant’s obligations – Rent Restriction Act. 1969/291.

Standard rent

Evidence – Rent should be fixed on basis of available evidence – Unusual for Tribunal to call for additional evidence on own motion. – Rent Restriction Act. 1969/266.
Evidence obtained in landlord absence – Rent Restriction Act. 1969/292.
Resident Magistrate’s Court has no jurisdiction to fix-Rent Restriction Act. 1969/294.
Reduction until landlord carries out needed repairs – Rent Restriction Act. 1969/279; 1969/291.

Vocation of premises

Criteria for ordering vacation of commercial premises: reasonableness of order and availability of alternative accommodation. – Rent Restriction Act. 1969/203.
Order of as against trespasser – Finding as to “reasonableness” not necessary. – Rent Restriction Act. 1969/294.
“Reasonableness” of eviction order – Court may be presumed to have considered “reasonableness” where evidence was before it. – Rent Restriction Act. 1969/294.
Section governing commercial premises different from section governing dwellings. – Rent Restriction Act. 1969/203

LEGAL PROFESSION

Fees. See: PROCEDURE – Costs.

CIVIL.

CV.14

LEGITIMACY

See: FAMILY LAW – Illegitimate children.

LIMITATION OF ACTIONS

Civil wrongs. 1969/14.
Customary law actions – Limitation period of twelve years from time right to action arose or time when limitation rules came into operation, whichever is later. 1969/140; 1969/204.
East African Railways and Harbours Act s. 93 (b) – Not inconsistent with Indian Limitation Act, s. 15(2) – period of notice prescribed under s. 93 excluded in computing limitation period. 1969/293.
Government actions – Limitation period of sixty years. 1969/275

Land

Recovery of. 1969/13
Redemption of. 1969/12; 1969/140

MAINTENANCE

See: FAMILY LAW – Maintenance.

MARINE INSURANCE

See: INSURANCE – Marine Insurance Act.

MARRIAGE

See: FAMILY LAW – Marriage.

MINING

See: LAND – Mining Ordinance.

MOHAMMEDAN LAW

See: ISLAMIC LAW.

NEGLIGENCE

See: TORT – Negligence.

NYAKYUSA LAW

See: CUSTOMARY LAW – Nyakyusa law.

NYARUBANJA

See: LAND LAWS – Nyarubanja.

NYATURU LAW

See: CUSTOMARY LAW – Nyaturu law.

PARENTAGE

See: FAMILY LAW – Parentage.

PARTIES TO CASE

See: APPEAL – Parties to appeal.

PARTNERSHIP

See: ASSOCIATIONS – Partnership.

CIVIL

CIV.15

PLEADINGS

See: PROCEDURE – Pleadings.

PLEDGE OF LAND

See: LAND LAW – Pledge of clan land.

POSSESSION

See: LAND LAW – Adverse possession.

PROBATE

See: SUCCESSION – Probate.

PROCEDURE (CIVIL)

Affidavits

Interlocutory applications – Whether an affidavit must state whether the facts are deposed from depondent‘s own knowledge or from information and belief – Rule enunciated in case of Noormohamed Jonmohamed held to be obiter. 1969/206.
Leave to amend granted. 1969/278.

Appeal. See: APPEAL.

Appearance

Failure to defendant to appear – advocate present. 1969/16.
Failure of plaintiff to appear at retrial – Suit should not be dismissed. 1969/88 (Zanzibar).
Assessors – Opinions should be recorded. 1969/9.
Attachment before judgment – Security – Amount of security. 1969/206.

Costs

Taxation scales – Considerations. 1969/76. (Zanzibar).
Taxation scales – Not absolutely binding on taxing officer. 1969/76. (Zanzibar).
Cross examination – Should be allowed. 1969/9.
Execution of decree – Decree cannot normally be executed against person not named as party therein. 1969/187.
Framing of issues – Essential. 1969/9.

Injunctions

Temporary – Considerations for granting. 1969/268; 1969/284.
Temporary – May be granted to prevent probable wastage of partnership property. 1969/268.
Interlocutory applications – District Registrar has jurisdiction in absence of judge. 1969/268.
Judgment debt – Default – Arrest of debtor – Proper procedure. 1969/85. (Zanzibar).
Jurisdiction
District Court – Pecuniary jurisdiction. 1969/87. (Zanzibar).
District Registrar – Interlocutory applications – Registrar has jurisdiction in absence of judge. 1969/268.

CIVIL

CIV. 16

PROCEDURE (CIVIL) (Contd.)

Jurisdiction (Contd.)

High Court – Claim reduced to less than Shs. 20,000/- by set-off admitted in pleadings – Jurisdiction of High Court not ousted. 1969/17.
Nyarubanja Tenure (Enfranchisement) Act – Jurisdiction of courts not excluded. 1969/138.
Primary Court – Contracts involving small sums. 1969/18.
Primary Court – Contracts involving small sums where parties lack common legal ground. 1969/273.
Race of parties – Irrelevant as regards jurisdiction of courts. 1969/273
Resident Magistrate’s court – Has jurisdiction to award mesne profits on premises to which Rent Restriction Act applies. 1969/294.
Resident Magistrate’s court – Has no jurisdiction to determine standard rent under Rent Restriction Act. 1969/294.
Partnership – Execution of decree against – Partner not named in decree. 1969/187.

Pleadings

Contract – Failure to state to whom alleged services and materials were supplied – Does not constitute failure to state material fact. 1969/201.
Inconsistent averments not pleaded in the alternative – When amendment permitted. 1969/17
Res Judicata
Acquittal on criminal charge not bar to civil proceeding. 1969/24
Maintenance order – Whether it can be discharged by subsequent ruling. 1969/2.
Prior order by court calling for specific performance of contract does not bar subsequent trial on question of which party ultimately broke contract. 1969/18.
Successive suits on same cause of action not maintainable. 1969/193; 1969/270.
Suit in respect of matter which might have been settled in prior suit but need not have been so settled is maintained. 1969/270.
Revision. See: APPEAL – Revision.
Successive suits. See: PROCEDURE – Res judicata.
View of premises by Rent Tribunal in absence of landlord contrary to natural justice. 1969/292.

Witnesses

Court should call witnesses on own initiative where evidence is unsatisfactory and parties unrepresented by advocates 1969/276.
Parties have right to call. 1969/14.

PRESCRIPTION

See: LIMITATION OF ACTIONS.

CIVIL

CIV.17

PROMISE TO MARRY

See: FAMILY LAW – Promise to marry.

RAILWAYS AND HARBOURS ACT

Limitation period – See: LIMITATION OF ACTIONS – East African Railways and Harbours Act.

RECEPTION OF ENGLISH LAW

See: JURISPRUDENCE – Reception of English law.

REDEMPTION

See: LAND LAW – Compensation for improvements; LAND LAW – Pledge of clan land; LAND LAW – Sale of clan land.

RENT RESTRICTION

See: LANDLORD AND TENANT – Rent Restriction Act.

RES IPSA LOQUITUR

See: TORT – Res ipsa loquitur.

RES JUDICATA

See: PROCEDURE – Res judicata.

RETRIAL

See: APPEAL – Retrial.

REVISION

See: APPEAL – Revision

SAFEKEEPING

See: BAILMENT.

SALE OF GOODS

See: CONTRACT – Sale of goods.

SOURCES OF LAW

See: JURISPRUDENCE.

STATUTES

Interpretation.

Code of Criminal Procedure. 1969/262.
Income tax statutes. 1969/202.
Penal statutes. 1969/299.
Revocation of enactment creating offence – Offender may be charged under old enactment for act committed prior to revocation. 1969/237.
“Shall be liable” – Meaning identical with “is liable”. 1969/255.

SUCCESSION

Conflict of laws – Rejection of Chagga law by deceased. 1969/283.
Intestacy – Women’s rights to inherit land – Chagga law. 1969/277.

CIVIL

CV.18

SUCCESSION (Contd.)

Probate – Verification by witness of petition for probate dispensed with under s. 57 of Probate and Administration Ordinance Cap. 445. 1969/297.

Wills

Construction – Reference to “my wife” sufficient to indicate wife subsequently divorced and remarried. 1969/297.
Construction – References to money held in specific bank accounts cannot be construed as applying to money in other bank accounts. 1969/142.

Disinheritance of beneficiary – Beneficiary cannot challenge. 1969/19.

Disinheritance of customary heir – Heir may challenge. 1969/19.

Distribution of “the big house”, the Nyaruju – Haya law.

Promise to make person heir in return for gifts – Contract. 1969/19.

Women – May not inherit immovable – Haya law. 1969/20

TORT

Conversion of crops – Police uprooting crops of person charged with criminal offence. 1969/23.
Damages. See: TORT – Defamation; TORT – Trespass.
Dangerous objects – Fall of boundary trees – No liability for damage – Chagga law. 1969/186.

Defamation

Aspersions on morality – Not actionable unless connected with occupation or enjoyment of person. 1969/191.
Complaint to police – Qualified privilege – Malice required. 1969/23.
Complain to police – Qualified privilege – Malice required – Chagga law. 1969/280.
Damages – Measure of. 1969/21.
Innuendo – Facts constituting. 1969/21.
Malice not required except in case of qualified privilege. 1969/21; 1969/23.
Publication – Facts constituting. 1969/21; 1969/22.
Publication – Requirements. 1969/192.
Special damages – Mere injury to feelings not covered. 1969/196.
Special damages – Need not be proved where criminal offence alleged. 1969/21.
False imprisonment – Confinement by police on criminal charge. 1969/23

Fire

Fire Prevention (Metropolis) Act, 1774 – of general application in Tanzania. 1969/293.
Occupant of shamba strictly liable for damage caused by spread of fire from his shamba. 1969/24.

CIVIL.

CV.19

TORT (Contd.)

Negligence

“Agony of the moment”- Person who puts another in peril cannot complain if that person fails to avert an accident by decision forced upon him. 1969/288.
Motor accidents – Driver on major road in rural areas has no duty to be on lookout for traffic approaching on access road where access road and traffic on it are hidden from view. 1969/205.
Res ipsa loquitur – Does not apply in case of outbreak of fire on premises. 1969/293.
Trespass – Damages – Attitude of party at fault irrelevant. 1969/190.

USAGE

See: CONTRACT – Usage.

VIEW OF SITE

See: PROCEDURE – view.

VILLAGE DEVELOPMENT COMMITTEE

See: LAND – Allocation.

WAIVER

See: CONTRACT – Waiver.

WILIS

See: SUCCESSION – Wills.

WITNESSES

See: PROCEDURE – Witnesses.

WOMENT

See: LAND – Women; SUCCESSION – Wills.

********
****
**

CRIMINAL INDEX

CRIMINAL.

CR.1

ABDUCTION OF GIRLS UNDER SIXTEEN

Consent of girl is no defence. 1969/241.

“Custody of father” interpreted.

Inducement by accused necessary. 1969/241.

ABSOLUTE LIABILITY

See: MENS REA.

ABUSIVE LANGUAGE

Word “mshenzi” uttered by police officer to subordinate discovered drinking illegal liquor with other not likely to cause breach of peace. 1969/149.

ACCESSORIES AFTER THE FACT.

Alternative verdicts – Accessory after the fact cannot be substituted for theft. 1969/25.

Elements of offence. 1969/25.

ACCIDENT

Homicide

Death resulting from accidental firing of gun. 1969/31.
Killing in course of customary game. 196/220.

ACCOMPLICES

See: EVIDENCE.

ACQUITTAL

See: PROCEDURE.

ADMISSIBILITY

See: EVIDENCE.

ADMISSIONS

See: EVIDENCE.

AFFRAY

Alternative verdicts – Brawling cannot be substituted for affray. 1969/58.

AGE OF ACCUSED

See: MINIMUM SENTENCES ACT; SENTENCE – Material factors.

ALIBI

See: EVIDENCE.

ALLENS AND NATIONALITY

British Nationality Act, 1948 – Effect of. 1969/183.

British subject who registers in Zanzibar loses status of British subject under Zanzibar constitution. 1969/183.

Deportation – State has right to deport stateless person. 1969/183.

Nationality and citizenship matters of fact. 1969/183.

CRIMINAL

CR.2

ALLENS AND NATIONALITY (Contd.)

Statelessness – Universal Declaration of Human Rights has no application. 1969/183.
Zanzibar Constitution – Effect of with respect to citizenship. 1969/183.
Zanzibar subject deported from Zanzibar prior to Union Day loses status of Zanzibar subject and does not become citizen of United Republic on Union Day. 1969/183.

ALTERNATIVE VERDICTS

See: PROCEDURE.

ANIMALS

See: FAUNA CONSERVATION ORDINANCE.

APPEAL (CRIMINAL)

Evidence – Appeal court should exercise right to interfere with trial court’s estimation of the evidence only with caution. 1969/249.
Interlocutory orders – Cannot be appealed from until case finally disposed of. 1969/314.

Parties entitled to appeal

Complainant has no right to appeal. 1969/312.
Republic and accused alone are entitled to appeal. 1969/312

Revision

Proper only where decision of lower court is illegal or incorrect or where proceedings are irregular. 1969/40.
Whether appeal can be heard relating to case previously revised. 1969/38.

ARREST

See: IMMUNITY OF JUDICIAL OFFICERS; PROCEDURE; USE OF FORCE IN EFFECTING ARREST; WRONGFUL CONFINEMENT.

ARSON

Sentence – Arson at night – Case should be sent to higher court for sentence. 1969/254.

ATTEMPTED HOUSEBREAKING

Alternative verdicts – Rogue and vagabond may be substituted for attempted housebreaking. 1969/99(Zanzibar)/

ATTEMPTED RAPE

Mere preparation distinguished. N. 225.

AUTREFOIS ACQUIT

See: PROCEDURE.

AUTREFOIS CONVICT

See: PROCEDURE

BAIL

See: PROCEDURE.

CRIMINAL.

CR.3

BIGAMY

Sentence – Conditional discharge. 1969/210.

BRAWLING

Alternative verdicts – Brawling cannot be substituted for affray. 1969/58.

“BREAKING”

Does not include breaking into vending machine found on outer wall of post office. 1969/216.
Does not include climbing over partition separating one room from another in house. 1969/309.
Includes opening of door from within house by person lawfully inside. 1969/240.

BREAKING WITH INTENT TO COMMIT FELONY

Alternative verdicts – Malicious damage cannot be substituted for breaking with intent. 1969/147.
“Breaking”. See: BREAKING.
Entering required. 1969/147

BURDEN OF PROOF

See: EVIDENCE.

CASE TO ANSWER

See: EVIDENCE – Prima facie case.

CAUSATION

See: HOMICIDE.

CAUSING GRIEVOUS HARM WITH INTENT – See also: GRIEVOUS HARM.

Alternative verdicts – Causing grievous harm with intent can be substituted for murder. 1969/233.

CHARGE

See: PROCEDURE.

CHASTISEMENT OF WIFE

See: HOMICIDE.

CHEATING

Facts constituting offence. 1969/127 (Zanzibar).

Obtaining by false pretences distinguished. 1969/171.

CHILDREN

See: JUVENILES.

CLAIM OF RIGHT

Convictions for burglary and theft quashed where accused thought he could take complainant clothes to make up for unpaid wages. 1969/71.

CRIMINAL

CR. 4

CLAIM OF RIGHT (Contd.)

Includes an honest belief unfounded both in law and in fact. 1969/222; 1969/239.
Need not be reasonable. 1969/222.
Use of money held for owner not theft where there is reasonable belief that owner would consent to use. 1969/263; 1969/264.
Youth and good record of accused relevant in assessing whether honest claim of right existed. 1969/71.

“COIN”

See: UTTERING COUNTERFELT COIN.

COMMON ASSAULT

Alternative verdicts – Common assault can be substituted for indecent assault. 1969/230.

COMMON INTENTION

Facts constituting. 1969/72.

COMMON NUISANCE

Backfiring a car deliberately at night in quit residential area. 1969/243.

COMPENSATION

See: MINIMUM SENTENCES ACT; SENTENCE.

CONCURRENCE

See: HOMICIDE.

CONCURRENT SENTENCES

See: SENTENCE.

CONDITIONAL DISCHARGE

See: SENTENCE.

CONFESSIONS

See: EVIDENCE.

CONSERVATION

See: FAUNA CONSERVATION ORDINANCE.

CONTEMPT OF COURT

Procedure where court takes cognizance of offence – Court must normally confirm substance of charge and allow accused right of reply. 1969/184.
Showing disrespect – Mens rea required. 1969/60.
Wrongfully retaking possession of land or other property.

(a)Does not cover cutting down and taking trees. 1969/143.

(b) Judgment defied must be more recent than eight years old. 1969/143.

“CONVERSION”

See: THEFT.

CRIMINAL.

CR. 5

CORPORAL PUNISHMENT

See: MINIMUM SENTENCES ACT; SENTENCE.

CORROBORATION

See: EVIDENCE.

CORRUPTION

See: PREVENTION OF CORRUPTION ORDINANCE.

COUNSELLING

Delivery of “dangerous” speech which could be misunderstood as an order to kill does not constituted counseling the offence of murder. 1969/170.
Words used must be strictly proved. 1969/170.

CREATING A DISTURBANCE

Threat to peace essential element – Police officers unlikely to be provoked. 1969/177.

CREDIBILITY

See: EVIDENCE.

CRIMINAL RESPONSIBILITY

Unincorporated body may not be convicted of criminal offence. 1969/181.

CRIMINAL TRESPASS

Intention to commit offence on premises not required. 1969/129 (Zanzibar).

DEFENCE OF PERSON

Amount of force permissible. 1969/89 (Zanzibar).
English law applicable. 1969/89(Zanzibar).
Excessive force resulting in death – Conviction for manslaughter. 1969/89. (Zanzibar)/

DEFENCE OF PROPERTY

English law applicable. 1969/54.

Firearm may be used only as last resort. 1969/54.

DEFILEMENT OF GIRLS UNDER TWELVE

Sentence

Material factors – Strong temptation. 1969/41.

Material factors – Youth of parties. 1969/41.

DEPOSITIONS

See: EVIDENCE.

DISMISSAL OF CHARGE

See: PROCEDURE.

CRIMINAL

CR. 6

DIOBEDIENCE OF LAWFUL ORDER

Impossibility as defence. 1969/112 (Zanzibar).

Interpretation – Whether section should be restrictively interpreted. 1969/299.

“Order” – Includes verbal commands made to prisoner by court. 1969/299.

DOCTORS

See: MEDICAL PRACTITIONERS AND DENTISTS ORDINANCE.

EVIDENCE (CRIMINAL)

Accomplices

Payer of bribe is accomplice. 1969/248.
Person who is given stolen goods as gift is not accomplice but person with interest of own to serve – Evidence should be corroborated. 1969/300.
Unsafe to convict on uncorroborated testimony of accomplice. 1969/91 (Zanzibar); 1969/248.

Admissibility

Admissions. 1969/233; 1969/253
Confessions. 1969/90. (Zanzibar) 1969/253.
Extra – judicial statements. 1969/310.

Admissions

Admissible when made to village executive officer. 1969/233.
Statement admitting only some ingredients of offence is admission not confession and so admissible. 1969/253.
Alibis – Need not be proved by accused. 1969/238.

Burden of proof

Alibi – Need not be proved by accused. 1969/238.
Possession of housebreaking instruments – Prosecution need not prove intent to commit housebreaking. 1969/216.
Case to answer. See: EVIDENCE – Prima facie case.
Child of tender years. See: JUVENILES.
Confessions
Admissions distinguished. 1969/253.
Inadmissible when made to police officer. 1969/90. (Zanzibar)

Corroboration

Accomplices – Requirement. 1969.(Zanzibar). 1969/248.
Credibility distinguished. 1969/91 (Zanzibar).
Person with interest of own to serve Requirements. 1969/300
Sexual offences – Requirements. 1969/27; 1969/226
Silence under accusation. 1969/307.
Suspects – Requirements. 1969/300

CRIMINAL.

CR. 7

EVIDENCE (CRIMINAL) (Contd.)

Credibility

Contradictory statements render testimony highly suspect. 1969/170
Distinguished from corroboration. 1969/91. (Zanzibar).
Discrepancies in witnesses’ accounts of swiftly – moving events – Does not destroy credibility. 1969/249.

Depositions – Admitted as evidence when witness unobtainable. 1969/34.

Experts – Report of handwriting expert – Proper form. 1969/49.

Extra – Judicial statements – Should be tendered in evidence when referred to in cross – examination. 1969/310.

Failure of accused to call witnesses – Not prejudicial to defence in circumstances. 1969/170

Handwriting – Identification. 1969/49.

Identification

Accused – Evidence of description given by identifying witness very important. 1969/28.
Body of deceased – Deposition of identifying witness admitted in witness’s absence. 1969/34.
Handwriting. See: EVIDENCE – Handwriting.
Stolen goods – Flight of accused on seeing policeman not proof that he did not own goods in question. 1969/258.
Stolen goods – Goods should be kept in proper custody until trial. 1969/93. (Zanzibar).

Identification parade – Highly desirable. 1969/59.

Judicial notice

· Prerogative of mercy exercised by 1^st Vice – President. 1969/119 (Zanzibar).

· Ugandan currency as not prohibited in Tanzania. 1969/72.

Plea – statements made by accused in answer to charge may be used as evidence. 1969/233.

Presumptions – Police presumed to act in good faith. 1969/103. (Zanzibar).

Prima facie case

Defined. 1969/249.

Threat to commit offence insufficient in itself to make out prima facie case. 1969/89. (Zanzibar).

Proof

Counseling an offence. Words used must be strictly proved. 1969/170.
Death of supposed victim. 1969/92. (Zanzibar).
Rural witnesses no held to high standards of precision. 1969/170.
Sexual offences – corroboration of complainant’s testimony normally required. 1969/27; 1969/226.

CRIMINAL

CR. 8

EVIDENCE (CRIMINAL) (Contd.)

Silence of accused – Knowledge peculiarly in possession of accused – Significance. 1969/243.
Suspects – Evidence requires corroboration. 1969/300.
Unsworn testimony – Cannot be used as evidence against co-accused. 1969/315.

Witnesses

Court’s power to call – Court has duty to call witness whose evidence is necessary for just decision even where evidence supports prosecution case. 1969/29.
Rural witnesses – Not held to high standards of precision. 1969/170.
Single witness – Conviction doubtful where prosecution did not call other available witnesses. 1969/30.
Single witness – Court may convict on testimony of. 1969/30.

EXPERTS

See: EVIDENCE.

EXTRA-JUDICIAL STATEMENTS

See: EVIDENCE.

FAILURE OF JUSTICE

See: PROCEDURE.

FALSE ASSUMPTION OF AUTHORITY

Customary arbitration is lawful. 1969/289.

FALSE INFORMATION

Lie to police constable – Not necessarily offence. 1969/259.

FALSE PRETENCES

See: OBTAINING BY FALSE PRETENCES.

FAUNA CONSERVATION ORDINANCE, CAP. 302.

Hunting in game controlled are – Mens rea not required. 1969/301.

FINE

See: SENTENCE.

PROCIBLE DETAINER

Alternative verdicts – Forcible detainer cannot be substituted for forcible entry. 1969/209

FORCIBLE ENTRY

Alternative verdicts – Forcible detainer cannot be substituted for forcible entry. 1969/209.
Elements of offence. 1969/308.
Owner of land forcibly ejecting trespassers and destroying their crops – When illegal. 1969/308.

CRIMINAL.

CR. 9

FORFEITURE

See: SENTENCE.

FORGERY

Charge – Particulars need not allege intent to defraud, although this is desirable. 1969/56.
Cheque drawn on closed account not document false in itself. 1969/242.

GAME

See: FAUNA CONSERVATION ORDINANCE.

“GOVERNMENT PROPERTY”

See: MINIMUM SENTENCES ACT.

GRIEVOUS HARD

Alternative verdicts – Grievous harm cannot be substituted for robbery. 1969/59.

GUILTY PLEA

See: PROCEDURE – Plea of guilty.

HANDWRITING

See: EVIDENCE.

HOMICIDE

Alternative verdicts – Causing grievous harm with intent can be substituted for murder. 1969/233.
Causing – No causality where original wound is mere setting in which actual cause of death occurs. 1969/233.
Chastisement of wife – Moderate use of force is lawful. 1969/261.
Concurrence – Malice aforethought separated in time from act causing death. 1969/233.

Manslaughter

Accidental death – accused not liable for death resulting from accidental firing of gun. 1969/31.
Chastisement of wife – Death resulting. 1969/261.
Excessive use of force in self-defence. 1969/89. (Zanzibar).
Mistake of fact – Man mistaken for wild pigs at night. 1969/33; 1969/250.
Sentence – Six month appropriate where death resulted from illegal medical treatment. 1969/43.
Sentence – Twelve months appropriate where deceased caught in act of adultery. 1969/47.
Sentence – Two years appropriate where death resulted from excessive use of force to effect arrest. 1969/55.
Shooting of cattle thief to prevent escape. 1969/55.

Murder

Counseling of – Delivery of “dangerous” speech which could be misunderstood as an order to kill does not constitute counseling the offences of murder. 1969/170.

CRIMINAL

CR.10

HOMICIDE (Contd.)

Murder (Contd.)

Malice aforethought – Intoxication – Incapability of forming intent. 1969/32.
Malice aforethought – Not found where repeated beating buttocks with stick. 1969/261.
Malice aforethought – Not found where weapon used not lethal and no motive was found for killing. 1969/214.
Procedure – Rule of practice that only one count of murder may be included against any one person in a charge – Violation of rule not prejudicial to accused in circumstances. 1969/170..
Proof of the death inadequate. 1969/92. (Zanzibar).

Negligent act causing death.

Poison negligently placed in bottle with medicine lable. 1969/96. (Zanzibar).
Sentence – Fine appropriate. 1969/96. (Zanzibar).

Provocation

Confession of adultery may constitute provocation even where prior suspicion existed. 1969/244.
Insults, a threat to use provocation and assault sufficient provocation. 1969/35.
Intoxication of accused is relevant factor. 1969/244.
Sensitivity of Moslems fasting during Ramadhani considered. 1969/95. (Zanzibar).
Sight of wife in pombe club with suspected lover sufficient provocation for husband in circumstances. 1969/34.
Words alone may be sufficient. 1969/94. (Zanzibar); 1969/95. (Zanzibar).
Unlawful act – Not found where killing occurred in course of customary game. 1969/220.

HOUSEBREAKING

Alternative verdicts – Possession of housebreaking instruments can be substituted for housebreaking. 1969/216.
“Breaking”. See: “BREAKING”.
“Dwelling” – Does not include walled yard adjacent to building 1969/175.

HUNTING

See: FAUNA CONSERVATION ORDINANCE.

IDENTIFICATION

See: EVIDENCE.

IMMIGRATION

Failing to report entry to Immigration Officer

Burden of proving facts’ leading to exemption falls on accused, 1969/145.
Somalis resident in Kenya exempt under certain condition. 1969/145.

CRIMINAL.

CR.11

IMMIGRATION (Contd.)

Prohibited immigrant – Burden of proof on accused. 1969/97. (Zanzibar).
Unlawful presence in Tanzania
Burden of proving facts’ leading to exemption falls on accused. 1969/145.
Somalis resident in Kenya exempt under certain conditions. 1969/145.

IMMUNITY OF JUDICIAL OFFICERS

See: JUDICIAL OFFICERS.

IMPOSSIBILITY

Defence to change of disobedience of lawful order. 1969/111. (Zanzibar).

IMPRISONMENT

See: SENTENCE.

INDECENT ASSAULT

Alternative verdicts – Common assault substituted for indecent assault. 1969/230.

Facts not supporting conviction. 1969/230.

INFANTICIDE

Death must be caused by willful act which, but for mental disturbance, would have constituted murder. 1969/245.
Giving birth in latrine – Reasonable doubt as to intention of accused. 1969/245.

INSANITY

Homicide – Killing in confused state after epileptic fit. 1969/26.

INTENTION

See: COMMON INTENTION MENS REA.

INTOXICATION

Homicide – Capability of forming intent required for offence of murder. 1969/32.

JOINDURE

See: PROCEDURE.

JOINT OFFENCES

See: COMMON INTENTION.

JUDICIAL NOTICE

See: EVIDENCE.

JUDICIAL OFFICERS

Arrest ordered by Justice of Peace – Exercise of executive rather than judicial functions – No immunity. 1969/252.

CRIMINAL

CR.12

JUVENILES

Children and young persons

Persons under sixteen years exempt from Criminal prosecution in High Count except for homicide. 1969/53.
Time at which age is determined is date of prosecution date of offence. 1969/53.

Witnesses

Child of tender years – Requirements and procedure. 1969/27; 1969/28; 1969/144.
Child of tender years – Where evidence improperly admitted conviction is sustainable if other evidence is sufficient. 1969/144.

LARCENY

See: THEFT

LAWFUL ORDERS

See: DISOBEDIENCE OF LAWFUL ORDERS.

LIQUOR

Possession of prescribed articles – Presumption of guilt occupier of premises where articles found – Presumption rebut table. 1969/98 (Zanzibar).

MAKING DOCUMENT WITHOUT AUTHORITY

Intention to defraud required – Intention to steal distinguished. 1969/75.

MALICIOUS INJURY TO PROPERTY

Alternative verdicts – Malicious injury cannot be substitute for breaking with intent to commit a felony. 1969/147.
Case arising out of dispute over land ownership – Issue of ownership should first be settled in civil court. 1969/36.
Claim of right good defence. 1969/36.
Elements of offence. 1969/36.
Owner of land destroying crops planted by trespassers – Whether illegal. 1969/308.
Owner of land has right to remove anything brought on land by trespasser. 1969/36.

MANSLAUGHTER

See: HOMICIDE.

MEDICAL PRACTITIONERS AND DENTISTS ORDINANCE, CAP. 409.

Diagnosing and curing witchcraft spells – Authorized activities 1969/246.

MENS REA

Contempt of court – Showing disrespect – Mens rea required. 1969/60.

Hunting in game controlled area – Mens rea not required. 1969/300.

CRIMINAL.

CR.13

MENS REA (Contd.)

Making document without authority – Intention to defraud required. 1969/75.
Murder – Malice aforethought separated in time from act causing death. 1969/233.
Neglect of official duty – Must be intentional. 1969/219.
Robbery – Fraudulent intent required. 1969/313.
Sentence – Lack of mens rea in strict liability offence is mitigating factor. 1969/46.
Theft – Unlawful seizure of property of suspected thieves – No intention to deprive permanently. 1969/239.

MINIMUM SENTENCES ACT

Alternative verdicts – Scheduled offence should not be substituted for non-scheduled offence. 1969/144.

Compensation

Joint offenders – Compensation ordered against each accused limited to property actually obtained by him. 1969/155.
Joint offenders – Participants resumed sharing loot equally. 1969/155.
Corporal punishment – Age of accused – Relevant time for determining age is not time of commission of offence but time when case appears in court or arises on appeal. 1969/303.

“Government property”

East African Posts and Telecommunications not covered. 1969/174.
Tanzania State Lottery covered. 1969/304.

“Public service” – East African Cargo Handling Services not included. N. 227.

“Special circumstances”

May be found where accused has dependents. 1969/75.
May be found where aged accused was merely passive participant in offence. 1969/45.
May be found where youthful accused acted under influence of older man. 1969/44; 1969/153.
Not found where were of accused became mentally unbalanced due to husband’s imprisonment. 1969/67.
Not necessarily found where amount taken is small. 1969/257.
Unlikely to be found where offence is robbery with violence. 1969/256.
Not found where robber suffered injuries as result of resistance by victim. 1969/256.

Value of property

Where no property is stolen accused may receive leniency. 1969/298.
Where value is unknown accused should get benefit of doubt.

MISTAKE OF FACT

Casting away a vessel – Boat of stranger mistaken for boat of accused’s brother. 1969/115 (Zanzibar).

CRIMINAL

CR.14

MISTAKE OF FACT (Contd.)

Homicide – Man mistaken for wild pigs at night – 1969/33; 1969/250.

“MONEY”

Includes cheque. 1969/215.

MOTOR VEHICLES

See: ROAD TRAFFIC.

MURDER

See: HOMICIDE

NATIVE LIQUOR

See: LIQUOR.

NECESSITY

Driving without proper licence in emergency situation – Necessity good defence. 1969/113. (Zanzibar).

NEGLECT OF OFFICIAL DUTY

“Negligence” must be intentional. 1969/219.

NUISANCE

See: COMMON NUISANCE.

OBTAINING CREDIT BY FALSE PRETENCES

Post-dated cheque not representation as to existing fact. 1969/157.

OBTAINING GOODS BY FALSE PRETENCES

Cheating distinguished. 1969/171.

Theft distinguished. 1969/75; 1969/173.

“ORDER”

See: DISOBEDIENCE OF LAWFUL ORDER

PLEA

See: EVIDENCE; PROCEDURE.

POLICE SUPERVISION

See: SENTENCE.

POSSESSION OF HOUSEBREAKING INSTRUMENTS

Alternative verdicts – Possession of housebreaking instrument can be substituted for housebreaking. 1969/216.

Burden of proof – Prosecution need not prove intent to commit housebreaking. 1969/216.

PRESUMTIONS

See: EVIDENCE.

PREVENTION OF CORRUPTION ORDINANCE, CAP. 400

Evidence – Payer of bribe is accomplice – Corroboration required. 1969/248.

CRIMINAL

CR.15

PREVIOUS CONVICTIONS

See: SENTENCE.

PRIMA FACIE CASE

See: EVIDENCE.

PROCEDURE

Accused unable to understand proceedings though sane – proper procedure. 1969/37.

Acquittal – Cannot be granted on application to withdraw the charge. 1969/221.

Act not yet in force – Whether convictions under can be maintained. 1969/39.

Alternative verdicts

Accessory after the fact cannot be substituted for theft. 1969/25.

Brawling cannot be substituted for affray. 1969/58.

Causing grievous harm with intent can be substituted for murder. 1969/233.

Common assault can be substituted for indecent assault. 1969/230.

Forcible detainer cannot be substituted for forcible entry. 1969/186.

Grievous harm cannot be substituted for robbery. 1969/59.

Improper to acquit on original charge and then convict on substituted charge. 1969/156.

Malicious damage cannot be substituted for breaking with intent to commit a felony. 1969/147

Obtaining goods by false pretences cannot be substituted for theft with respect to only part of sum originally alleged to have been stolen. 1969/173.

Offence scheduled under Minimum Sentences Act should not be substituted for non-scheduled offence. 1969/144.

Offence carrying heavy maximum penalty should not be substituted for offence carrying light maximum penalty. 1969/306.

Possession of house breaking instruments can be substituted for house breaking. 1969/193.

Rogue and vagabond can be substituted for attempted house-breaking. 1969/99 (Zanzibar).

Theft can be substituted for theft from person. 1969/159.

Amendment of charge – Failure of court to take new plea and allow re-call of witnesses harmless error when amendment unnecessary. N. 192.

Arrest without warrant

Detention without charge or bail. 1969/103. (Zanzibar).
Powers of Divisional Executive Officer acting as Justice of Peace. 1969/252.

CRIMINAL

CR.16

PROCEDURE (Contd.)

Autrefois acquit

Dismissal and acquittal due to non-appearance of complainant operates as a bar to further proceedings. 1969/262.
Dismissal of prosecution case bars further prosecution based on some facts – Proper procedure for prosecution to follow where dismissal is wrongful. 1969/101. (Zanzibar)

Autrefois convict - Failure of court to try one of three charges because of lack of jurisdiction while entering convictions on other counts does not bar subsequent prosecution in proper court. 1969/102.(Zanzibar).

Baid

Accused must normally appear personally to apply for bail. 1969/103 (Zanzibar).
Attempted suicide of accused not good reason for refusing bail. 1969/148.
No power to grant bail until accused charged with specific offence. 1969/103. (Zanzibar)
Relevant considerations. 1969/148.

Charge

Accused charged with stealing sum of money may be convicted of stealing cheques – “Money” includes cheques. 1969/176.
Defective – Laid under Act not yet in force – When error is curable. 1969/237.
Defective – Laid under repealed section – When error is curable. 1969/236.
Duplicity – Trespass by unlawful entry (Stock Theft Ordinance distinct offence from trespass by unlawful remaining. 1969/247.
Failure to prove charge preferred – Accused entitled to acquittal save where alternative verdict permitted. 1969/146.
Forgery – Particulars need not allege intent to defraud, although this is desirable. 1969/56.
Joint charge – Accused charged jointly with another of theft by taking cannot independently be convicted of theft by finding. 1969/146.
Commitment warrant – Should bear same date as sentence pronounced by court. 1969/302.
Curing provision. See: PROCEDURE – Failure of justice.

Deaf-mute – Proper procedure. 1969/194

Detention – Where illegal, habeas corpus is proper remedy. 1969/103. (Zanzibar).

Dismissal of charge due to non-appearance of complainant.

Operates as bar to further proceedings. 1969/262.
Power to order should be used sparingly. 1969/262.

Failure of justice

Defective charge – Criteria. 1969/236; 1969/237
Irregularities constituting failure of justice. 1969/146.
Irregularities not constituting failure of justice. 1969/107. (Zanzibar).

CRIMINAL

CR.17

PROCEDURE(Contd.)

Interpretation – Tanzania Code of Criminal Procedure should be viewed in light of Indian Code of Criminal Procedure on which it is based. 1969/262.
Joindure of offenders – Successive acts of defilement committed on same girl by different accused – Whether joindure proper. 1969/252.

Plea

Must always be taken in criminal proceedings. 1969/108.(Zanzibar).
Must be taken before magistrate who head case, although accused has already pleaded before another magistrate. 1969/107. (Zanzibar).
Particulars of charge must be given. 1969/106. (Zanzibar).
Proper procedure in taking a plea. 1969/106 (Zanzibar).
Statements made in answer to charge may be used as evidence. 1969/233.

Pleas of guilty

Accused must be given opportunity after statement of facts to say whether or not he agrees with statement. 1969/178.
Facts should be outlined before conviction entered on guilty plea. 1969/150.
Presumption that charge was correctly explained to accused despite its complexity. 1969/145; CONTRA 1969/150.
Statement “it is true” is unsatisfactory as guilty plea. 1969/242.
Unlawful wounding – Accused must state that wounding was unlawful. 1969/200.

Recognizance – Forfeiture of – Failure to pay penalty – Maximum sentence is six months. 1969/255.

Record of proceedings

Must always be kept in criminal proceedings. 1969/104 (Zanzibar); 1969/108 (Zanzibar); 1969/109 (Zanzibar).
Retrial appropriate where record lost. 1969/57.
Witnesses should be identified by both name and number. 1969/110 (Zanzibar); 1969/235.

Remand – Powers of Divisional Executive officer acting as Justice of Peace. 12969/252.

Summary trials – Proper procedure. 1969/108 (Zanzibar); 1969/109 (Zanzibar).

“Taking cognizance” of offence of contempt of court – Proper procedure. 1969/184.

Transfer of case to new magistrate.

Grounds for granting application. 1969/100(Zanzibar).
Statement by police to accused that arrangements had been made with magistrate to have him convicted not sufficient grounds for transfer. 1969/314.

Trial record. See: PROCEDURE – Record proceedings.

CRIMINAL

CR.18

PROCEDURE (Contd.)

Witnesses

Accused not permitted to call witness – Miscarriage of justice. 1969/38.

Proper designation in record. 1969/110. (Zanzibar).

PROCURING

Theft by directions made to child. 1969/130. (Zanzibar).

PROOF

See: EVIDENCE.

PROVOCATION

See: HOMICIDE.

RAPE

Corroboration

Immediate report does not constitute corroboration. 1969/226.

Normally required. 1969/226.

Rationale for requirement. 1969/226.

When not required. 1969/226

Sentence – Long prison term coupled with corporal punishment only justified in extreme cases. 1969/231.

RECENT POSSESSION

Forty – three days “recent” in case of burglary where accused found with stolen gun. 1969/218.

Four and a half months not “recent” in case of receiving stolen radio – Radio is common article. 1969/172.

One month “recent” in case of cattle theft. 1969/133 (Zanzibar)

Reasonable explanation should be investigated and not rejected unless shown false. 1969/126 (Zanzibar); 1969/132 (Zanzibar)

Two days “recent” in case of shop breaking. 1969/134 (Zanzibar)

Two years not “recent” in case of cattle theft where accused found with only one of nineteen cattle stolen. 1969/224.

RECOGNIZANCE

See: PROCEDURE

RECORD OF PROCEEDINGS

See: PROCEDURE.

REMAND

See: PROCEDURE.

REVISION

See: APPEAL

ROAD TRAFFIC

Causing death by dangerous driving

Imprisonment appropriate. 1969/229.

Substantial fine appropriate. 1969/228.

Test of whether driving is “dangerous” is objective. 1969/180.

CRIMINAL

CR. 19

ROAD TRAFFIC (Contd.)

Disqualification from holding driving licence.

Establishing “special reasons” – Evidence should be heard in preference to mere statements. 1969/179.
Length of disqualification – Three years appropriate even where accused is professional driver with thirteen years unblemished driving record. 1969/229.
“Special reasons” do not include condition of road or time of offence. 1969/228.
“Special reasons” exist where accused acted under orders superior officer. 1969/63.
“Special reasons” not found where accused was merely testing vehicle. 1969/179.
Driving motor vehicle without insurance – owner of vehicle rather than driver should be prosecuted. 1969/62.
Driving motor vehicle without proper licence – Necessity good defence in emergency situation. 1969/113 (Zanzibar).
Failing to comply with timetable – Only licence – holder can be charged. N. 182.
Road” – Includes runway at aerodrome. 1969/260.

Sentence

Fine appropriate save where there is continuous of flagrant disregard for law. 1969/61; 1969/305; 1969/311.
Injury caused by offence of dangerous driving is irrelevant consideration. 1969/311.
Primary responsibility for disrepair of vehicle rests with owner not driver – Driver should not be fined heavily. 1969/48.

ROBBERY

Alternative verdicts – Grievous harm cannot be substituted for robber, 1969/59.
Fraudulent intent required. 1969/313.
Participation of more than one person in theft does not make it robbery. 1969/72.
Snatching of hand bag and obstruction of complainant’s attempt to catch thief does not amount to “actual violence”. 1969/158.

ROGUES AND VAGABONDS

Alternative verdicts – Rogue and vagabond can be substituted for attempted housebreaking. 1969/99 (Zanzibar).

SENTENCE

Absolute discharge – Appropriate where accused sent letter threatening to kill wife’s seducer. 1969/64.
Commitment warrant – Should bear some date as sentence pronounced by court. 1969/302.

Concurrent sentences

Appropriate for convictions for housebreaking and theft. 1969/66; 1969/107 (Zanzibar)
Principles. 1969/107(Zanzibar)
Sentence can be ordered to run concurrently with sentences imposed in earlier trial as from date imposed. 1969/115 (Zanzibar).

CRIMINAL

CR.20

SENTENCE (Contd.)

Conditional discharge

Appropriate for offence of bigamy. 1969/210.
Appropriate where accused sent letter threatening to kill uncle. 1969/53.

Corporal punishment

Can be imposed for assault only in aggravated cases. 1969/118. (Zanzibar).
Cannot be imposed for receiving stolen property committed by adult. 1969/117 (Zanzibar)
Cannot be imposed for theft committed by adult. 1969/116 (Zanzibar); 1969/117 (Zanzibar).
Order automatically lapses when accused found medically unfit. 1969/232.
Rape – Strokes should be coupled with long prison term only in extreme cases. 1969/231.

Domestic offences – imprisonment inappropriate. 1969/151.

Fine

Must bear reasonable relation to accused’s power to pay. 1969/120(Zanzibar).
Payable in installments. 1969/96 (Zanzibar); 1969/122. (Zanzibar).
Road traffic – Causing death by dangerous driving – Substantial fine appropriate. 1969/228.
Road traffic – Fine appropriate save where there is continuous or flagrant disregard for law. 1969/61; 1969/305; 1969/31.
Road traffic – Primary responsibility for disrepair of vehicle rests with owner not driver – Driver should not be fined heavily. 1969/48.

Forfeiture

Proof must be given that item in question was unlawfully obtained. 1969/123 (Zanzibar).
Unlawful wounding – Order of forfeiture of firearm illegal. 1969/54.

Imprisonment

Arson – Severe prison term appropriate where lives endanger. 1969/254.
Domestic offences – inappropriate. 1969/151.
First offenders – Prison terms undesirable. 1969/234.
Manslaughter – Six months appropriate where death resulted from illegal medical treatment. 1969/43.
Manslaughter – Twelve months appropriate where deceased caught in act of adultery. 1969/47.
Manslaughter – Two years appropriate where death resulted from excessive use of force in effecting arrest. 1969/55.
Road traffic – Causing death by dangerous driving – Prison term appropriate. 1969/229.
Road traffic – Prison terms usually inappropriate. 1969/61; 1969/305; 1969/311.

CRIMINAL.

CR.21

SENTENCE (Contd.)

Imprisonment (Contd.)

Stealing from person – Appropriate. 1969/189; 1969/190.
Witchcraft – Appropriate. 1969/188.
Youthful first offenders – Prison terms undesirable. 1969/42.

Imprisonment in default of fine

Maximum term six months. 1969/121. (Zanzibar); 1969/145.
Relationship to maximum prison term imposable. 1969/145.

Irrelevant considerations.

Amount of money stolen in offence of theft from person. 1969/213.
Circumstances of guilty plea. 1969/234.
Gravity of injury caused by offence of dangerous driving. 1969/311.
Large number of dependents. 1969/69.
Loss of contributions to Provident Fund consequent upon offence. 1969/69.
Loss of job consequent upon offence. 1969/69.
Race of accused. 1969/54.

Material factors

Close relationship between accused and complainant. 1969/53.
Contempt for laws of country – Relevance of. 1969/234.
Element of discrimination in definition of offence. 1969/210.
“Good” motive. 1969/152.
Good record. 1969/69.
Infrequency of offence. 1969/210.
Lack of awareness. 1969/70.
Lack of mens rea in strict liability offence. 1969/46.
Lives endangered by offence. 1969/254.
Long delays in trial. 1969/65; 1969/105 (Zanzibar)
Mistakes of fact and law. 1969/68.
Old age. 1969/233.
Previous convictions based on some facts. 1969/102 (Zanzibar)
Provocation. 1969/47; 1969/154.
Reduction of minimum sentence in interim between imposition of sentence and appeal. 1969/119. (Zanzibar).
Refund of money stolen. 1969/69.
Remorse. 1969/53.
Self-defence. 1969/47.
Slight nature of wound caused. 1969/154.
Strong temptation. 1969/41.
Youth. 1969/41; 1969/53.

CRIMINAL

CR. 22

SENTENCE (Contd.)

Police supervision – When can be ordered. 1969/124 (Zanzibar).

Previous convictions – Disentitle accused leniency but not grounds for sentence more severe than offence itself warrants. 1969/70.

Principles of punishment

First offenders should not usually be sent to prison. 1969/234.
“Minimum sentences” for offences should not be fixed in advance by court. 1969/154.
Sentences for two accused convicted of same offence should be identical unless variation supported by record. 1969/125.(Zanzibar).
Sentences similar to those lay down by Minimum Sentences Act justified for theft from parastatal bodies not covered by Act. 1969/69.

Procedure – Two sentences cannot be imposed where charge contains single count. 1969/107. (Zanzibar).

Reconciliation

Cannot be ordered in case of assault causing actual bodily harm. 1969/312.

Terms of order must be agreed to by all parties. 1969/312.

“Shall be liable” – Meaning identical with “is liable”. 1969/255.

“SPECIAL CIRCUMSTANCES”

See: ROAD TRAFFIC.

STEALING

See: THEFT.

STOCK THEFT ORDINANCE, CAP. 422.

Trespass by unlawful entry or remaining

Charge irregular for duplicity. 1969/247.

Elements of offence. 1969/247.

SUBSTITUTION OF CHARGES

See: PROCEDURE – Alternative verdicts.

SUMMARY TRIALS

See: PROCEDURE.

SUSPECTS

See: EVIDENCE.

“TAKING”

See: THEFT.

THEFT

Alternative verdicts

Accessory after the fact cannot be substituted for theft. 1969/25.

Theft can be substituted for theft from person. 1969/159.

CRIMINAL.

CR.23

THEFT (Contd.)

Charge – Accused charged with stealing sum of money may be convicted of stealing cheque – “Money” includes cheques. 1969/176.

“Conversion”

Goods entrusted to accused for sale. 1969/128. (Zanzibar).

Money received by accused with direction as to use –

Ownership does not pass to accused – Misuse by accused constitutes conversion. 1969/73

Fraudulent intent

Facts not constituting. 1969/313.

Intention to return money converted – Irrelevant. 1969/73.

Unlawful seizure of property of suspected thieves – No intent to deprive permanently. 1969/239.

Use of money held for owner is fraudulent where contrary to specific instructions of owner. 1969/264.

Use of money held for owner not fraudulent where money is immediately replaced. 1969/264.

Use of money held for owner not fraudulent where there is reasonable belief that owner would consent to use. 1969/263; 1969/264.

Obtaining by false pretences distinguished. 1969/75; 1969/173.

Stealing by agent – Appropriation of money entrusted to accused to be changed into new currency. 1969/73.

Stealing by person having interest in thing stolen – Cattle impounded by Town Council – Forcible taking by owners. 1969/251.

Stealing from person

Stealing public servant –Conviction improper where public servant appropriated money on route to government which it was not his duty to receive. 1969/74.

Does not cover case of lawful taking followed by unlawful conversion. 1969/159.

Sentence – Amount of money stolen not material. 1969/213.

Sentence – Lond prison term appropriate. 1969/189; 1969/213.

“Taking”

· Act of driving cattle from cattle – boma but not from surrounding court-yard is sufficient “taking”. 1969/156.

· Act of picking pocket but being prevented from entirely removing purse from pocket is sufficient “taking”. 1969/156.

TOWNSHIP RULES, CAP. 101

Impounding of stray animals – Illegal unless done by police or person authorized by Administrative Officer. 1969/251.

TRANSFER OF CASE

See: PROCEDURE.

UNLAWFUL WOUNDING

Sentence – Order of forfeiture of weapon used illegal. 1969/54

CRIMINAL

CR.24

UNSWORN TESTIMONY

See: EVIDENCE.

USE OF FORCE IN EFFECTING ARREST

Firearm – When use of is justifiable. 1969/54; 1969/55.

UTTERING COUNTERFELT COIN

“Coin” – Notes not included. 1969/306.

UTTERING DOCUMENTS MADE WITHOUT AUTHORITY

Elements of offence. 1969/49.

Intention to defraud required as distinguished from intention to steal. 1969/75

UTTERING SEDITIOUS WORDS

Written consent of Attorney – General required for prosecution. 1969/112 (Zanzibar).

WITCHCRAFT ORDINANCE, CAP. 18

Diagnosing and curing witchcraft spells – Not offences. 1969/246.

Sentence – Imprisonment more appropriate than fine. 1969/211.

Using an instrument of witchcraft – Does not cover use of “talking gourd” used for diagnosis of illnesses and spells. 1969/246.

WITNESSES

See: EVIDENCE; PROCEDURE.

WRITTEN THREATS TO MURDER

Sentence

Absolute discharge appropriate. 1969/64.

Conditional discharge appropriate.

WRONGFUL CONFINEMENT

Arrest without warrant and confinement by Divisional Executive Officer of suspected offender. – When lawful. 1969/252

********
****

(1969) H.C.D.

CIVIL CASES

BAILMENT

Trustee or bailee of goods – Liability not absolute under customary law – Use of bailed goods by bailee.

See case No. 14

CONTRACT

1. Hire purchase agreement – Hire Purchase Act, 1966, inapplicable to this transaction. Doctrine o fundamental breach – Necessary returning chattels.

R .F. Mboya v. Mewa Singh Mangat, Civ. App. 18-A-67, 26/10/68, Platt J.

Defendants in 1964 entered into an agreement to purchase a motor vehicle from plaintiff. As the agreement predated the Tanzania Hire Purchase act, 1966, which Act would cover this transaction were it to occur today, the relevant law was found in the Contract Ordinance, Cap. 433, the sale of Good Ordinance, Cap. 214 and the common law. The vehicle was delivered in 1964. Despite the fact that the vehicle failed an inspection, defendants kept possession of the vehicle until August, 1965, at which time plaintiff repossessed it because defendants had not kept up their payments. Plaintiff in this action sought arrears for 9 unpaid monthly installments. Defendants refused to pay because they had expected a roadworthy vehicle. The contract contained a clause specifically waiving all warranties, both express and implied.

Held: (1) A disclaimer of warranties, no matter how widely expressed is “only available to a party where he is carrying out his contract in its essential respect ……. They do not avail him when he is guilty of a branch which goes to the root of the contract.” (Quoting Karsales (Harrow) Ltd. V. Wallis (1956) 2 All E.R. 866, at *\868. This case also involved the delivery of faulty vehicle. It was held there that defendant did not have to accept the wrecked vehicle which plaintiff tendered, notwithstanding that warranty of roadworthiness of the vehicle specifically disclaimed. This was because a car that is an undrivable wreck is so fundamentally different from a sound vehicle that its delivery does not satisfy the terms of the contract any more than delivery of 100 lbs. Of oranges would have sufficed. Thus it was in breach.)

(2) Assuming arguendo that the failure to deliver a workable vehicle constituted a breach going to the root of the contract, for the defendants to rely on that breach as a justification for their own non-performance, they should have refused delivery of the vehicle or returned the vehicle to the plaintiff upon learning of the breach. Having retained the vehicle, the defendants have converted what might have been a breach of a condition to a breach of a warranty, and their only remedy is by way of damages caused by the unsatisfactory stated of the vehicle (Citing National

Cash …….

(1969) H.C.D.

-2 –

Cash Register Ltd. v. Stanley (1921) 3K.B. 292). But defendants have not advanced any claim for damages and consequently judgment must be entered in favour of plaintiff for the unpaid hire purchase instalments.

(3) If the facts do not appear quite clearly that is reflection on the record. The judge observed: “I cannot help reflecting that a great deal more went on behind the scenes than appeared on the fact of the record”.

(Editors’ note: A less complete summary of this case appeared in Vol. 2, number 12, High Court Digest, n. 446. In view of the importance of this case, we are publishing this more complete version here).

Jurisdiction of Primary Court – Contracts involving small sums.

See case No. 18

CUSTOMARY LAW

Family La-Affiliation – Custody of illegitimate child.

See case No. 3.

Family Law – Custody of child born of customary marriage.

See case No. 6.

Family Law – Custody of children born of adulterous association – Lawful husband has right of custody – Other considerations irrelevant.

See case No. 4.

Family Law – Custody of children born of adulterous association – Lawful husband presumed to be father – Welfare of children paramount consideration in determining custody.

See case No. 5

Family Law – Divorce – Refund of dowry – When permisable.

See case No. 8.

Family Law – Divorce – Return of bride-wealth – No evidence of divorce.

See case No. 9.

Family ……………

(1969) H.C.D.

- 3 –

Family Law – Guardianship – Whether a woman may be guardian of a minor – Bukoba.

See case No. 10.

Family Law – Marriage under customary law – Validity depends upon issue of marriage certificate.

See case No. 7.

Land – North Mara – Whether woman can hold and during lifetime of husband.

See case No. 11.

Land – Period of limitation for recovery of possession.

See cases Nos. 12 and 13.

Succession – Revocation of a will – Whether a will is “property”.

See case No. 19.

Succession – Validity of will under Haya custom. Methods of legitimating children under Haya custom.

See case No. 20.

Trusts – Trustee or bailee of goods – Liability not absolute under customary law – Use of bailed goods by bailee.

See case No. 14.

ESTOPPEL

Maintenance order made under s. 8, District Courts (Separation and Maintenance) Ordinance, Cap. 274 – Whether it can be discharged by a subsequent ruling.

Ernest Uchai v. Eunice Elikanoa Civ. App. 16-A-67, 26/10/68, Platt J.

This appeal came from the ruling of the learned Senior Resident Magistrate who refused to entertain an application by the appellant for a discharge of the order by which the respondent, the wife of the appellant, was granted maintenance under the District Courts (Separation and Maintenance) Ordinance, Cap. 274. The application was dismissed on the basis that the points raised in the application were already adjudicated upon. The appellant, on this appeal, argued that s.8 (1) was not restricted to mere increases or decreases in the amount to be paid as maintenance, or indeed to a

discharge ………….

(1969) H.C.D.

- 4 –

discharge under the provisions of s. 8(2) of the Ordinance, but that the appellant was permitted to challenge “any such order” upon bringing fresh evidence which may indicate that the marriage was a customary marriage.

Held: (1) It is possible for the Magistrates upon fresh evidence to alter, vary or discharge the order that they had previously made. (See Rex v. Middlesex Justices (1933) 2. K.B. 1; see also In Re Wakeman (1947) 2 Ch. 607 and 613.)

(2) Fresh evidence is not restricted as to subject matter: it may concern not only matters connected with sums of maintenance to be awarded, but also matters affecting the position of the parties. Thus fresh evidence has been admitted to show that the order must be discharged because at the time of the wife’s marriage her former husband was still alive. (See Halsbury Vol. 12, pages 492 and 493, not (j) and the authorities there cited)

(3) In the present case the question was whether the marriage of the parties was a customary union or a monogamous union falling within the definition in s. 2 cap. 364. As the District Courts (Separation Maintenance) Ordinance applies only to monogamous marriages by virtue of s. 2(2) it follows that the distinction is vital.

(4) The first Magistrate held that the marriage fell within the definition, while appellant argues that it was customary union; therefore if there was fresh evidence on this matter, then it ought to have been admitted.

(5) The appeal is allowed not so much because the learned Magistrate was wrong in applying the doctrine of res judicata, since it may still apply, but because it appears to have been applied prematurely, before the appellant had been given the opportunity of putting his allegedly fresh evidence before the court.

Res judicata – Order of specific performance not carried out.

See case No. 18.

EVIDENCE

Out-of-court statements not introduced into evidence – Improper to consider.

See case No. 13.

FAMILY LAW

Affiliation – Custody of illegitimate child – Mother’s right to custody may be overridden in the interests of the child.

Margaret …………

(1969) H.C.D.

- 5 –

Margaret Andrew v. Bakari Mbagha, Civ. App. 14-A-68, 20/11/68, Platt J.

The appellant took affiliation proceedings in the District Court applying for maintenance for an illegitimate child, whose father was the respondent. The learned magistrate ordered the respondent to pay Shs. 100/- monthly, but he further ordered that the child remain in the custody of the father, this being in the best interests of the child. It was against this order for custody that the mother appealed.

Held: (1) Under paragraph 178 of the Declaration of Customary Rules, (Govt. Notice 279 of 1963), the illegitimate child belongs to the mother’s family, and it may be that under customary law the child would remain with the mother. However, s. 8 of the Affiliation Ordinance Cap. 278, overrides the mother’s right to custody if it is in the interest of the child.

(2) Taking into consideration the fact that the appellant has three other illegitimate children by other men, and her present income, it is in the interests of the child that he be with the father. Appeal dismissed.

4. Custody of children born of adulterous association – Lawful husband has right of custody – Other considerations irrelevant.

Shija Maziku v. Mpemba Nzunya, (PC) Civ. App. 33-D-68, 17/10/68, Duff J.

The respondent and the appellant were married but later divorced. Before the dissolution of the marriage, the appellant had been living with other men by whom she had two sons. The respondent claimed custody of the two boys, and succeeded in both the Primary Court and District Court, where it was held that children born in wedlock belonged to the husband despite the fact that they were conceived in consequence of an adulterous association.

Held: (1) “In her present appeal the appellant stresses that she fails to understand why the respondent wishes to take the children when they are not his, but unfortunately this is not a consideration which carries any weight. In both the lower courts reference was made to Government General Notice No. 279/63, which provides that children born in wedlock belong to the legal husband. This provision appears to cover this unfortunate situation, and apparently the mother’s claim cannot be supported”.

(2) (Obiter) It would appear that the mother has maintained the two children without any support from the respondent. “No doubt the appellant has a claim for maintenance in respect of these children, but this is a matter which may be considered elsewhere …..”

Custody ………..

(1969) H.C.D

- 6 –

5. Custody of children born of adulterous association – Lawful husband presumed to be father – Welfare of children paramount consideration in determining custody – Mother should have custody where move would have bad effects – Rights and duties of legal father.

Makende s/o Kisunte, (PC) Civ. App. 159-D-67, 6/1/69, Saidi J.

The respondent was married to the appellant many years ago in North Mara with a dowry of 38 head of cattle. They had four children. The respondent then deserted the appellant and went to live with another man, by whom she subsequently had four children. While a fifth child was in the womb, the marriage between her and the appellant was dissolved. The appellant claims custody of the children born of the other man and the return of the dowry.

Held: (1) The lower courts were correct in holding that the claim for dowry was not maintainable against the wife. A dowry is normally paid not to the wife, but to her parents or their heirs and it is against them that the husband should proceed.

(2) The appellant is presumed to be the father of the five children born after the desertion, as they were born, or conceived, before the marriage was dissolved. The presumption is made as a matter of public policy, undertaken to safeguard the sanctity of marriage.

(3) ‘As is well known and upheld by this court, the welfare of the children whose custody is disputed is the first matter to be taken into consideration”.

(4) Where the children have been born in another house and brought up in that house by the mother and another man, and may not have known anything about their legal father and where there is no complaint that they have not been property looked after, the best thing is to leave them with their mother. “To move them from the home to which they have been accustomed to another home to which they are not accustomed, during their most impressionable years, would be very upsetting and might result in serious psychological consequences”.

(5) (Obiter) Their legal father “owes a duty to lock after their maintenance, and he is entitled to arrange their marriages when they grow up and to receive dowry paid in respect of the marriage of any of the daughters”.

(6) Appeal dismissed. Custody of the five children to remain with their mother until they come of age.

6. Custody of child born of lawful wedlock – Welfare of child paramount consideration – Rights of father where mother awarded custody.

Waryoba d/o Katara v. Kirimi s/o Wangari, (PC) Civ. App. 123-D-66, 19/11/68, Saidi J.

The respondent ………..

(1969) H.C.D.

- 7 –

The respondent and the appellant were husband and wife by virtue of a customary marriage. One child was born in lawful wedlock, and it was not disputed that the respondent was the father. The appellant subsequently sought and obtained a divorce by judgment of the court. In proceedings concerning custody of the child, both the Primary Court and the District Court declared the respondent the father of the child and awarded him custody on that basis.

Held: (1) “The judgments of both courts below are ….. right in pronouncing the respondent the father of the child but I think they did not properly take into account the welfare of the child itself. As the facts are I am firmly of the view that the welfare of this child will be more secure if it remains in its mother’s custody than in its father’s custody ……” Custody awarded to the appellant.

(2) “The respondent is declared the father of the child and will have the right in due course to arrange the marriage of the child and to receive the bride price and is also given leave to apply to the court to review this order on custody if circumstances charge and the interests of the child require it.

7. Customary law marriage – Validity depends upon the issue of a marriage certificate.

Mahundya Mburumatare v. Mugendi Nyakangara, Civ. App. 207-M-68, 26/11/68, Seaton J.

The respondent claimed compensation for adultery allegedly committed by his alleged wife. The question turned on the proof of marriage. The respondent argued that he married the woman in 1964, and that the marriage certificate was not regarded as necessary under the local customs.

Held: (1) The case falls to be determined under the Declaration of Customary Law, G. N. Non 279 of 1963. Section 86 provides that the marriage must be legalized by the issue of a marriage certificate. The traditional ceremonies have no legal force.

(2) In the instant case besides the not –production of the marriage certificate there were other discrepancies in evidence which indicated that there was no marriage between the respondent and the woman. Appeal allowed.

8. Divorce – Refund of dowry – When permissible.

Matiko Chabha v. Mathisad Mwita, (PC) Civ. App. 56-D-68 , 4/11/68, Saidi J.

This was a claim for the return of dowry, the parties wee married under customary law, and the husband had paid dowry. On divorce, normally dowry is not returnable once children have been born, which was the case here. However the wife had since remarried and her father had received a second set of dowry

Held……..

(1969) H.C.D.

- 8 –

Held: Under clause 52B of the Customary Declaration Order, 1963 the claim for the return of dowry by the husband on dissolution of the marriage cannot be entertained if the wife has borne him children. The Declaration does not touch on the relevant issue raised in the instant case, namely whether it is fair to bar the husband from recovering the dowry or a proportionate part thereof where the wife who has borne him children is divorced and having been re-married dowry is paid again to the father. This way a father could get several sets of dowry for the same daughter. In such a case the former husband is entitled to recover a substantial part of the dowry he has paid.

Divorce – Return of bridewealth – Desertion by wife – No evidence of divorce. Procedure – Assessors’ opinions not recorded. Opportunity to call witnesses and cross-examine. Framing of issues.

Ralang Mumanyi v. Wambura Mwita, (PC) Civ. App. 164-M-68, 24/10/68, Seaton J.

The plaintiff sued the defendant in the Primary Court in North Mara District for the return of bridewealth. There was evidence that, after several years of marriage, the plaintiff’s wife (the defendant’s daughter) had deserted the plaintiff, but here was no evidence that the plaintiff had obtained a divorce. At the trial the plaintiff and the defendant gave evidence but were not allowed to cress- examine one another. It was not recorded whether or not they were allowed to call other witnesses. No issues were framed by the court, nor were the opinions of the assessors recorded. The trial court gave judgment for the plaintiff, relying on ss. 133, 134 and 140, Law of Persons, G. N. 279/1963, as applied to North Mara District by G. N. 640/1963, which provide that desertion is a ground for divorce and that the husband may claim divorce and seek a return of bridewealth without legal obligation to search for his wife.

Held: (1) After the plaint had been read and the defendant’s statement in reply recorded, the court should have framed the issues in the case and determined whether or not the defendant admitted or denied the plaintiff’s allegations. [Citing rules 44-47, Magistrate’s Courts (Civil Procedure in Primary Court) Rules G. N. 310/1964].

(2) The trial court should have recorded whether or not the parties had been give opportunity to cross-examine and to call witnesses.

(3) Although a primary court has discretion as to whether or not to sit with assessors [s. 8, Magistrate’s Courts Act, Cap. 537], once the court decides to sit with assessors it must record their opinions and, if he disagrees with them, give the reasons for his disagreement.

(4) The sections of the law of Persons cited by the trial court must be read together with s. 37A which provides that bridewealth may be required to be returned “in case of divorce”. In the present case there was no evidence of a divorce and the award cannot be sustained.

Guardianship ………..

(1969) H.C.D.

- 9 –

10. Guardianship – Whether a woman may be guardian of a minor – Bukoba.

Natory Mugalagala v. Felician Timanyika, Civ. App. 187-M-68, 27/11/68, Seaton J.

This appeal arose in respect of a piece of land on which it was alleged that the appellant had built a house without the permission of the owners, the clan members. The suit was brought by the respondent a guardian on behalf of a child of eight years to whom the disputed land was bequeathed. The respondent denied trespass and alleged that he had received the permission of the child’s aunt. From the evidence it was clear that the respondent did not help the child in providing him with the clothes, food, or school fees, and the permission by the aunt to use the land was given in order to get some money for the child.

Held: (1) The Law of Guardianship which applied to Africans within the jurisdiction on the Buhaya District Council by G. N. No. 605 of 1963 does not expressly disqualify a woman from acting as a guardian of a minor. However the disqualification may be inferred from the fact that the Law of Guardianship refers in several sections to the ‘eldest son’ being appointed guardian and never to daughters. Therefore the lower court’s ruling that the aunt was disqualified to be guardian may be justified.

(2) The respondent was appointed guardian by the members of the clan, but he misused the property and was dismissed. As a result he had no locus standi to take the suit. Appeal dismissed.

Legitimacy – Law applicable – Methods of legitimating under Haya custom.

See case No. 20.

Maintenance order made under s.8, District Courts (Separation and Maintenance) Ordinance, Cap. 274 – Whether it can be discharged by a subsequent ruling.

See case No. 2

LAND LAW

11. Reallocation of land by Village Development Committee North Mar. Customary Law – Whether woman can hold land during lifetime of husband.

Lukas Masirori Kateti v. Oloo Sebege (PC) Civ. App. 27-D-67, 8/11/68, Biron J.

The appellant claimed possession of land allocated to him by the Village Development Committee. At the time of the allocation, the respondent was in possession of the land, having occupied it for “some considerable time”; some witnesses testified that she had occupied the land “as long as they can remember”. The Primary Court gave judgment for

the………

(1969) H.C.D.

- 10 –

the respondent in view of her undisturbed occupation of the land for many years. The District Magistrate upheld the judgment of the Primary Court and, in reviewing the evidence, found that, not only was the land wrongly allocated to the appellant, but that the committee which allocated it was not properly constituted, and further that such allocation was done in the absence of the respondent, which was a denial of justice. The appellant appealed to the High Court, his main grounds of appeal being that, although he respondent was not present when the land was allocated, her husband was, and he made no protest; and further that, according the local customary law, a woman could not hold land during the life time of her husband.

Held: Although the respondent’s husband may have been present at the relevant time, the fact remains that the respondent herself was not. The appellant has failed to prove his proposition that under local custom a woman cannot hold land during her husband’s lifetime. The judge made reference to the increasing number of improper allocations by V.D. C .s. and subscribed to the warning issued by the District Magistrate that V.D.C. members must use their powers justly and wisely instead of creating discontent among the inhabitants whom they are entrusted to look after. Appeal dismissed.

12. Redemption of clan shamba – Bukoba – Period of limitation.

Emmanuel Paul v. Wilfred Rwemigira, (PC) Civ. App. 31-D-68 18/10/68, Biron J.

The plaintiff claimed to be entitled to redeem a clan shamba sold by the second defendant to the first defendant without clan consent. The second defendant asserted that he had consulted and obtained the approval of the clan elders, but he did not consult the plaintiff because, although the plaintiff was a member of the clan, he was descended from a different family – his approval was therefore not necessary for the validity of the sale. The Primary Court, sitting with assessors, found upon considering the authorities including Cory and Hartnoll, Customary Law of the Haya Tribe, as well as decided cases, that, although the plaintiff was descended from a different branch of the clan, he was entitled to be consulted, failing which he could redeem the shamba if near relatives failed to do so. An order was made for redemption within six months from the date of judgment. On appeal, the District Court upheld the judgment but reduced the redemption period to one month on consideration that a purchaser who was in possession of the shamba, well knowing that he would not be able to retain it, if it was redeemed, would fail to cultivate it. The plaintiff appealed to the High Court against the reduction of the redemption period.

Held: (1) The redemption price would automatically embrace improvements effected during the redemption period.

(2) “The judgment of the Primary Court was delivered on the 5^th of October 1967. That is more than a year ago. The six months’ redemption period granted by the Primary Court will long have expired by now. Although the order about to be made by this court may possibly be no more than an academic exercise, in view of the expiry of the period, as it is possible that the status quo has been maintained.

Pending ……..

(1969) H.C.D.

- 11 –

pending the determination of the appeal, I formally allow it. The order of the District Court reducing the period to one month is set aside and the judgment of the Primary Court is restored in toto”.

Period of limitation for recovery of possession. Evidence – Statements not in evidence considered by magistrate.

Robert s/o Mwamaso v. Mwangwala s/o Mbyuta (PC) Civ. App. 13-D-68, 5/11/68, Saidi J.

The plaintiff sued the defendant for recovery of a shamba. The defendant alleged that the shamba had been awarded to his grandfather in 1929 in exchange for other land. The plaintiff alleged that the land had not been a part of the exchange and had belonged to his grandfather’s brother. There was evidence that the shamba had been cultivated continuously since 1929 by the defendant’s grandfather, then his father, and then the defendant and that no claim had been made until the plaintiff attempted to cultivate it in 1964. The trial court gave judgment for the defendant on the ground of continued cultivation and the fact that no claim was made for 35 years. On appeal the district court reversed, holding that long cultivation gave the defendant no right to the land and relying on statements made to the magistrate by the villagers out of court.

Held: (1) The district court erred in taking into account statements made outside of court which were not a part of the evidence and had not been subject to cross-examination.

(2) Under the customary law of limitation, an action for the recovery of possession cannot be brought if the land has been continuously occupied by the possessor for more than 12 years. In the present case the occupation by the defendant, his father and his grandfather should be taken as one continuous occupation by one of the parties. Appeal allowed.

LIMITATION OF ACTIONS

Customary law – Period of limitation for recovery of land.

See case Nos. 12 and 13.

Return of goods entrusted to another – Customary Law – Period of limitation. Procedure – Opportunity to call witnesses denied. Customary Law –Duties of trustee or bailee of goods.

Marwa Mbau v. Ligamba Eringo, (PC) Civ. App. 208-M-68, 30/10/68, Seaton J.

The plaintiff sued the defendant in Zanaki Primary Court for the return of a bicycle allegedly entrusted to the defendant in 1959 for safekeeping. The case was filed on 24 August 1967. At the trial, the plaintiff stated facts concerning the entrusting of the bicycle. The defendant admitted that the bicycle had been entrusted to him, but he stated that the bicycle had been seized by the traffic

Police ………..

(1969) H.C.D.

- 12 –

police for failure to pay licence fees and the plaintiff had refused to go to the police to recover the bicycle. In an additional statement the plaintiff alleged that the defendant had sold the bicycle; it was not recorded whether or not this statement was on affirmation. The defendant was not allowed to call his witnesses, and the court gave judgment for the plaintiff. On appeal to the District Court, the court heard witnesses for the defendant but affirmed the judgment for the plaintiff, taking into account some evidence that the defendant had occasionally used the bicycle. The defendant then appealed to the High Court.

Held: (1) Under the Schedule, Magistrates’ Courts (Limitation of Proceedings under Customary Law) Rules, G.N. 311/1964, the period of limitation for civil wrongs is three years from the date of the wrong or from the date the rules came into effect (29 May, 1964), whichever is later. Under either test the action is time-barred.

(2) There is no ground for believing that the relevant customary law imposed absolute liability on trustees or bailes. Therefore, the plaintiff’s only duty was to return the bicycle or give a reasonable explanation for being unable to do so. The use of the bicycle was not expressly prohibited and is not unusual in such circumstances.

(3) Rule 3 (4), G.N. 311/1964, gives discretion to admit a time barred action. However, the discretion should not be exercised in the circumstances of this case.

(4) The trial court erred in not recording whether or not the plaintiff’s second statement was on affirmation.

(5) Assuming that the statement was on affirmation the trial court erred in denying the defendant the opportunity to call his witnesses. [Citing Rule 45, Magistrates’ Court (Civil Procedure in Primary Courts) Rules, 1964.] Defendant’s appeal allowed.

PROCEDURE

Appeal - Extension of time to lodge appeal to Court of Appeal – “Sufficient reason’ – Necessity to state nature of case and grounds of appeal.

Official Receiver as Trustee of Kishan Singh Sandhu v. Mokund Ban Aggarwal, Civ. App. 1-A-68, 16/11/68, Platt j.

The applicant seeks an order to extend the time in which to appeal to the Court of Appeal for Eastern Africa. He had taken 10 days to instruct his lawyer to lodge an appeal. Notice of appeal was then filed and under rule 54 of the East African Court of Appeal Rules he then had 60 days in which to appeal. Counsel immediately bespoke copies of judgment, decree and record. The court took 37 days to prepare the record, leaving 23 days for counsel to prepare his document, which included a number of complicated documents of account. The respondent objected to the extension on the grounds that there was no proper reason for the delay and that the nature of the case and reasons for appealing were not stated.

Held ………

(1969) H.C.D.

- 13 –

Held: (1) The lack of a satisfactory explanation as to the delay is only fatal in cases of excessive delay.

(2) It is unreasonable, in computing the time available to the advocate for compiling his documents, to take into account the period between judgment and his receiving instructions to appeal. It is reasonable that counsel should not waste time in preparing documents which might never be needed.

(3) “The object of including r. 9 in the rules of court is to ensure that the strict enforcement of the limitations of time for filing documents prescribed by the rules shall not result in a manifest denial of justice. It is thus essential, that an application for an extension of time r.9 should support his application by sufficient statement of the nature of the judgment ad of his reason for desiring to appeal against it to enable the court to determine whether or not a refusal of the application would appear to cause injustice.” Failure to do so, however, does not fetter the discretion of the judge. In cases where there is no such supporting statement adduced, if it appears that the cause of delay is substantially attributable to the court, and on the facts the delay of the applicant is not unreasonable, then the application may be allowed. (Citing Bhainchand Bhagwanji Shah v. Jamnadas & Co. Ltd. [1959] E.A. 838, and Bhatt v. Tejwant Singh [1962] E.A. 497) Application Granted.

Appearance – Defendant absent – Defendant’s advocate prepared to proceed with case.

William Andrea Shangarai v. Farm Vehicles Ltd., Civ. App. 8-A-68, 30/9/68, Platt J.

The plaintiff sued the defendant for Shs. 319/15, the balance of an account due for goods sold and delivered and work done. On the date set for hearing, the defendant was personally absent but was represented by his advocate who stated that he had been fully instructed and was prepared to proceed with the case. The trial court has judgment for the plaintiff on the ground that 0. 17, r. 2 and 0.9, r. 6 (1) (a) (ii) (B), Civil Procedure Code, required appearance by the defendant personally and not merely be his advocate.

Held: (1) Under 0.3 r. 1, any appearance required by law to be made by a party may be made by an advocate unless otherwise expressly provided by law or unless otherwise directed by the court.

(2) Under 0.5, r. 5 (b), if a defendant is summoned to appear, he may appear by an advocate even though he is not himself present, so long as the advocate is able to proceed with the case and to answer all material questions. In such case an ex parte judgment is not justified. [Citing Khedu Naek v. Rajib Ray, (1972) A. I R. Patna 291].

(3) The provisions of 0.17, r.2 and 0.9, r.6 (1) (a) (ii), which deal with the procedure to be followed when a defendant fails to appear, must be read together with the provisions of 0.3 and 0.5 set forth above [Citing The Land Officer f. Abdulrasul Jicraj, 1 T. L. R. (R) 410. 420]. Defendant’s advocate was prepared to proceed with the case;

Thus …….

(1969) H.C.D.

- 14 –

Thus the judgment for the plaintiff was not justified. Appeal allowed and record remitted to lower court for trial.

Jurisdiction – High Court – Set – off admitted in pleadings – Total claim reduced to less than Shs. 20.000. Pleadings – Inconsistent experiments not pleaded n alternative – When amendment permitted.

N. J. Amin Ltd. v. V.B. Patel & Co. Ltd., Civ. Case 38-D-67, 21/10/68, Biron J.

The plaintiff company sued the defendant company for Shs. 28, 780/- as the balance of the price of goods sold and delivered. The written statement of defence set up, inter alia, a set-off of Shs. 9,500/-. In its reply the plaintiff admitted the set-off. In addition, in paragraph 3 of the reply the plaintiff alleged that it had cancelled an order from the defendant before the order had been accepted; in paragraph 6, it alleged that it was justified in refusing delivery because delivery was late and “time was of the essence of the contract’. The defendant then raised a preliminary point that the case was not justifiable in the High Court because the admitted set-off reduced the claim to Shs. 19,280/- which was within the jurisdiction of the district court. In a second point, the defendant alleged that paragraphs 3 and 6 were inconsistent in that one denied the existence of the contract and one admitted it at least impliedly. The defendant moved that on of the paragraphs be struck.

Held: (1) “The mere fact that the sum now claimed is within the jurisdiction of the lower court does not automatically oust the jurisdiction of this court.” Also, the counter claim is in excess of Shs. 20,000/- and is not within the district court’s jurisdiction. To grant defendant’s sub-mission “would merely result in a multiplication of suits, and in different courts, wherein the issues are the same, which is obviously most undesirable”.

(2) Parties may set up inconsistent or even diametrically opposed averments, but they should be laid in the alternative and that was not done here. However, the object of the pleadings is to inform the opposing party of the pleader’s case. Each case must be decided on its own facts, but in the circumstances of the present case the issues are clear not fatal. Application to strike out rejected.

Jurisdiction of Primary Court – Contracts involving small sums – Sections 14 and 57, Magistrates Courts Act. Construed. Res Judicata.

Salvatori Tena v. William Mkodo, (PC) Civ. App. 15-A-68, 2/12/68, Platt J.

S and W agreed that W should build a house for S with materials supplied by him. S was to pay W for his labour. The foundations were laid, and S advanced money. The building was not completed. S sued and W in the Primary Court

at ………..

(1969) H.C.D.

- 15 –

at the end of six months and obtained a judgment ordering W to complete the house within six months. The house was not completed nor was any action taken by the Primary Court, apparently because it then had doubts as to its jurisdiction. S brought a second action in the District Court which held the issue res judicata.

Held: (1) A number of authorities have decided that s. 14 of Magistrates Courts act, Cap. 537 should be construed widely to give primary courts jurisdiction in contracts of this kind, and that small debts between Africans were within the section.

(2) The matter was not res judicata. The plaint in the District Court was filed after the period set by the Primary Court had expired, and the claim related to facts which arose after the Primary Court considered the matter.

(3) The present dispute related to the position of the parties after the date of the Primary Court hearing, not after the period et by the Primary Court had expired, since the ability of W to complete the work within that period depended upon S’s supplying materials. Both parties claim that the contract was not carried out in that period due to the failure of the other party. There should be a trial on this question of who finally broke the contract.

(4) Section 57, Magistrate Courts Act, implies that wherever possible proceedings should be begun in the Primary Court. Accordingly the decision of the District Court is set aside and the suit is transferred to the Primary Court under s. 12, Magistrates Courts Act, for it to decide which party was ultimately in breach.

Assessors – Primary courts – Opinions must be recorded. Opportunity to call witness and cross-examine. Framing of issue by court.

See case No. 9.

Witnesses – Opportunity to call denied. Statement by party – Failure to record whether statement made on affirmation.

See case No. 9.

SET-OFF AND COUNTERCLAIM

Jurisdiction of High Court – Set-off admitted in pleadings.

See case No. 17.

SUCCESSION

19. Revocation of a will – Whether a will is “property”.

Peter John v. Richard Barongo, (PC) Civ. App. 202-M-68, 8/1/69, Bramble J.

Herman, by his will in 1953, made the respondent a beneficiary provided that the latter looked after his needs. The respondent spent Shs. 6,280/50 up to 1967, when Herman changed his

will ……..

(1969) H.C.D.

- 16 –

will in favour of the appellant because he claimed the respondent did not build a new house for him. The lower courts thought that a will is “property” for they held “according to customary law nobody can be deprived of a property for which he has offered ‘appropriation gifts’ even if he has done something to his father,” and since the respondent had paid ‘appropriation gifts’, he was entitled to the will.

Held: (1) A customary heir may challenge a will if he is disinherited by a testator who is alive. But this cannot be done by an ordinary beneficiary and neither the respondent nor the appellant was a customary heir. Herman then was free to revoke his will.

(2) “The true position between the respondent and Herman is that on the basis of a promise to make the former heir to a shamba he has spent monies in the interest of Herman …. The true nature of the claim was a claim for damages for breach of contract”.

Validity of will – Law applicable prior to Customary Law Declaration – Ability of woman to inherit immoveables under Hay customary law. Legitimacy – Law applicable – Methods of legitimating under Haya custom.

Constantine Bulagile v. Bi. Genereza Mashakala, (PC) Civ. App. 103-D-67, 21/11/68, Georges C. J.

The dispute in this case concerned the ownership of a shamba which belonged to one Mashakala, now deceased. The respondent alleged that she was an illegitimate daughter of the deceased, acknowledged by him, accepted in the family and declared by him in a written will as his heir to the property. However, the document purporting to be a will was not produced in court and no explanation was given as to what had happened to it. The appellant on the other hand denied that the respondent was the daughter of the deceased and contends that he was the deceased’s nephew and was appointed by him as his heir before his death. It was not disputed that the respondent’s mother was married to one Rubeshelwa when the respondent was conceived and born. Her witnesses however testified that she was daughter of the deceased, Mashakala, who was first cousin of the respondent’s mother – within the prohibited degree of consanguinity according to Haya customary law. The respondent’s mother died when she was very young and her aunt looked after her and later took her to her father, Mashakala, who paid Shs. 50/- for her clothes and kept her till her marriage. On the question of the legitimacy of the respondent, the Primary Court quoted s. 181, (a) and (b), Declaration of Customary Law of Persons, and held that none of the methods of legitimating a child there set out had been followed. The District Court, however, reversed this and held that the respondent had been legitimated under Haya custom by the payment of Shs. 50/- by her father to hr aunt. Both lower courts applied the law of Inheritance under G.N.436/63.

Held ………

(1969) H.C.D.

- 17 –

Held: (1) Section 181, Declaration of Customary law of Persons, could not be applicable to a legitimation which must have taken place in 1944 or thereabouts. Hay Customary law was applicable and therefore the respondent as legitimated by the payment of Shs. 50/- by her father to her aunt, which was according to Haya customary law.

(2) Questions of succession to the estate of the deceased and the validity of his will can only be decided by the law as it was at the time of his death, i.e. Haya customary law before the Declaration. According to section 28 of Cory and Hartnoll, “should a man name in his last will a female as heiress of his immoveable property, even with the consent of the witnesses, such a testament would be considered void”.

(3) Even if (2) above is ignored, the will was not sufficiently proved. It was not produce in court and the witnesses to its execution are interested parties. Moreover the only partly independent witness did not sign as a witness.

(4) The choice of the appellants’ heir was supported by two independent witnesses who had nothing to gain by supporting it. Appeal allowed.

TORT.

Defamation – Allegation of criminal offence – Innuendo – Nature of malice required – Publication. Damages – Mitigation.

Japhet Mwangwa v. Mtemi Senge, Civ. App. 18-D-68, 7/11/68, Hamlyn J.

The plaintiff brought an action for defamation, alleging that the defendant had instituted criminal proceedings against him by filing a complaint in the Primary Court alleging that the plaintiff had threatened to kill him, c/ss 89 (1) (a), Penal Code. It also appears from testimony in the present case that the defendant communicated this information to persons other than police and court officials. The criminal proceedings against the plaintiff were withdrawn after the defendant stated he pardoned the plaintiff and wished to withdraw his charge. The trial court found that the defendant’s allegation was defamatory by innuendo in that the words implied that the plaintiff was “a potential assassin or murderer …. Not fit to live in decent society and ….. That he should be shunned by all peace-loving citizens, since he was violent”, and would therefore tend to lower him in the estimation of right – thinking members of society generally. There was no plea of justification (truth) nor was privilege raised, although the defendant pleaded “good faith”, apparently meaning no malice. However the trial court found he had acted with malice. The plaintiff was awarded Shs. 6,000/-.

Held: (1) The trial court erred in finding malice without sufficient evidence; but, unless the occasion is one of qualified privilege, a defamatory statement is actionable without a showing of actual malice in the sense of a wrongful

Intent ……….

(1969) H.C.D.

- 18 –

intent. The word maliciously is used in the pleadings simply to indicate that the publication of the statement was a wrongful act, and does not relate to the defendant’s intention.

(2) The trial court correctly held that the allegation was defamatory by innuendo.

(3) Since the defendant “published it by communication of the matter not only to the court officials but also to other persons” there was a sufficient publication. [Note: the court does not make it clear which publication is being relied on, but since a formal complaint to a court is absolutely privileged, so that even malice will not destroy the privilege, it appears that the communication of the allegation to persons in the community was the actionable publication].

(4) Damages to be reduced to Shs. 3,500/-. No special damages was alleged or proved, but his is not necessary where there is an allegation of a criminal offence, for whether libel or slander such an allegation of a criminal offence is actionable per se. The court stated “the mere probability that consequences injurious to the respondent may ensue from the defamation complained of entitled him to compensation. But the trial court erred on the side of generosity, and the judgment was “so excessive as to warrant interference on the part of this court.” The court said: “It is always difficult to assess by monetary standards an event which is of a non-material nature” but the trial court properly considered the plaintiff’s present office of Regional Game Warden, and the fact that he had been “a chief for some seventeen years and was consequently of some dignity.” The court commented: “this office has now been discontinued, and it would therefore have been wrong to have paid regard to his rank as if it still obtained. But to view it as a past measure of present importance is permissible in the assessment of any damages” which he has suffered.

(5) The fact that the defendant had withdrawn his charge “might mitigate damages if he brought to the notice of the persons to whom publication had been made that the allegations were untrue. This he has not done and the record shows that he still maintains that the allegations are correct.”

22. Defamation – Allegation of criminal offence – Publication Damages.

Romani s/o Modesti and two others v. Amiri s/o Kitego, (PC) Civ. App. 143-D-68, 6/1/69 Saidi J.

Plaintiff brought an action for defamation against defendants, who had reported to the local authorities and police that the plaintiff was holding the defendant’s relative a prisoner by witchcraft. This was untrue as subsequent investigation

showed ………

(1969) H.C.D

- 19 –

showed. The only defence offered was that the defendants had been advised by a local witchdoctor that the plaintiff was hiding their relative through the use of witchcraft. This defence was accepted by the primary court, but rejected by the district court.

Held: The defence was properly rejected. The defendants published the allegation to the local authorities and police, and must pay damages of Shs. 500/- for defaming the plaintiff.

False imprisonment – No action will lie for merely reporting criminal offence to police. Defamation. Conversion of crops.

Yohana Mujuni v. Isaya s/o Bakobi, (PC) Civ. App. 123-M-68, 8/10/68, Seaton J.

The plaintiff sued the defendant for “spoiling his reputation, maliciously imprisoning him and uprooting his crops”. The parties are neighbours and had numerous disputes over the rights of each in relation to the land of the other. In the course of one dispute, the defendant made a report to the police that the plaintiff had threatened violence to him c/s 89(1) (a), Penal Code. the plaintiff was arrested, remanded in prison for two days and criminal proceedings were instituted against him. The police and district officer also uprooted the plaintiff’s crops in the area over which the dispute had arisen. The criminal proceedings terminated in the plaintiff’s favour, and he now seeks Shs. 1,000/- for being locked up, Shs. 240/- for loss of work which attending primary court and Shs. 328/20 for loss of crops are related expenses. The Primary Court found for the plaintiff but reduced the award for being locked up an resultant loss of reputation to Shs. 500/-. The Primary Court appears to have treated loss of reputation not as defamation, but a part of the damage from being locked up, that is, false imprisonment. The District Court upheld the award for uprooted crops but set aside all compensation for loss of work and loss of reputation on the ground that the defendant had merely made a report to the police, citing Jacob Tibifumula v. Ntangaku Bebwa and another, (PC) High Court, Civ. App. 208-M-68, and Emir Kyabashulla vs. John Thana, (PC) High Court, Civ. App. 59-67. In the former case, the High Court held that an action for false imprisonment would not lie there the plaintiff had been confined by virtue of a judgment of the Primary Court. In the latter case an action of defamation was held not to lie by the High Court since the defendant in that case had merely reported an alleged offence to the police.

Held: (1) The District Court was correct in refusing to allow damages for loss of reputation and loss of work, on the ground that the defendant merely reported to the police an alleged offence, and the police then took the action which injured the plaintiff. “What the [defendant] had done, he was perfectly entitled to do so, that is to say, to make a report that the appellant had been threatening him with violence”. (Note: The Court seems here to hold that there is at least a qualified privilege, that is, no liability without actual malice for defamatory allegations of crime when made to police).

(2) The ………

(1969) H.C.D.

- 20 –

(2) The District Court erred in upholding the award of Shs. 328/20 for uprooted crops (conversion) which injury was also attributable to action taken by the police and district officer.

24. Liability for spread of fire – Occupier is strictly liable for spread of fire from his shamba and must compensate neighbour for damage to crops. Damages. Acquittal on criminal charge not bar to civil proceedings.

Abdullah Ramadhani v. Asinate Kimomwe, (PC) Civ. 103-A-67, 20/9/68, Platt J.

The plaintiff brought an action for damage to his crops caused by the spread of fire from the defendant’s shamba to the plaintiff’s land. The Primary Court awarded Shs. 700/- as compensation for the destruction of 72 banana trees, 25 sugar canes and 4 mango trees. In a prior criminal proceeding, the defendant had been found guilty of having set five to the crops, and was fined Shs. 100/-, and ordered to pay Shs. 700/- as compensation. The defendant appealed against the criminal conviction, which was quashed because it had not been proved that the defendant had willfully and unlawfully set fire to the crops, as required by s. 321, Penal Code.

Held: (1) The civil action was not banned by the successful appeal in the criminal proceeding, for the basis of liability is different.

(2) In regard to civil liability, the court stated: “If a person stars a fire on his shamba and it spreads into somebody else’s shamba, of course, he cannot plead that if was merely bad luck. It is necessary for a person who starts fire in his shamba to control it, and if he cannot or does not control it, and it spreads into somebody else’s shamba, he must pay compensation for the damages he has done.

(3) The court did not believe the compensation erroneous and did not disturb the award.

CRIMINAL CASES ………..

(1969) H.C.D.

- 21 –

CRIMINAL CASES

ADMINISTRATION OF JUSTICE (OFFENCES AGAINST)

Escape from lawful custody – Conviction based on testimony by only one of several eye – witnesses – Presumption of fact as to testimony of persons not called.

See case No. 30.

ATTEMPTS

25. Accessory after the fact a minor but not cognate offence to theft.

Andrea Nicodemo v. R., Crim. App. 633-M-68, 6/12/68, Mustafa J.

The two accused were charged with theft. There was evidence that the first accused had stolen a bicycle and had taken it to the house of the second accused. The second accused kept it for several days and assisted the first accused in removing the saddle. The bicycle was then recovered by the police. The trial magistrate found that the second accused knew that the bicycle had been stolen and convicted him of being an accessory after the fact c/s 387, Penal Code. In substituting this conviction the magistrate purported to act under s. 181, Criminal Procedure Code.

Held: (1) The offence of accessory after the fact is minor to the offence of theft but is not cognate to it. [Citing Velezi Kashizha v. R., (1954) 21 E.A.C.A. 389]. Therefore, s. 181, Criminal Procedure Code, was inapplicable and the conviction as accessory after the fact should not have been substituted.

(2) To be convicted as an accessory after the fact an accused not only must know or have reason to know about the offence but must take steps for the purpose of enabling the offender to escape punishment. There was no evidence that the second accused took such steps. Conviction of first accused affirmed; conviction of second accused quashed.

CORRUPTION

Corrupt transaction with agent – Sentence under Minimum Sentence Act – Special circumstances.

See case No. 45

CRIMINAL …………

(1969) H.C.D.

- 22 –

CRIMINAL REPONSIBILITY.

Accident – Accused not liable for death resulting from accidental firing of gun.

See case No. 31.

Insanity – Homicide – Killing in confused state after epileptic fit – Not guilty by reason of insanity.

R. v. Tomson s/o Msumali, Crim. Sass. 1967-D-68, 11/10/68, Georges C.J.

The accused, who was subject to epileptic fits, slept in the same house as his father, so that he could be taken care of if a fit came on. On the night in question, he was found by his mother and others outside the house, standing by the dead body of his father, with a heavy stick alongside. He told his mother that he had killed a thief. She asked him why he had killed his father, and he made no reply. Later, in an extra-judicial statement, he said that earlier that day he had been visited by a man who wished to marry his sister and who asked the accused to use his good offices to arrange the marriage. The accused refused and the suitor left, threatening to return later and deal with him. That night, the accused appeared to dream that the suitor had come back, had entered the house and was beating his father. In defence of his father, the accused took a stick and beat the supposed assailant. Later he dragged the body of the assailant outside the house. There he was told that the man he had killed was his father. It appeared from the evidence that the accused was a confirmed epileptic. While under observation in the hospital after the killing, he suffered three epileptic fits, remaining in a confused state for about two hours after each one. The doctor in attendance was of the opinion that, since the accused had been on good terms with his father, the killing must have. Been done in a confused state following an epileptic fit. If so, the accused could not at the time have been able to appreciate the nature of his act. The accused was charged with murder.

Held: accused was found not guilty by reason of insanity. The Court stated: “On the evidence before me, I am satisfied …… that the accused was the person who killed his father. I am satisfied also that he killed him in circumstances which would have mounted to murder had the accused been sane. I am satisfied, however, that at the time of the killing, by reason of a disease affecting his mind, he was unable to understand what he was doing and that he could not realise that he ought not to have done what he did”.

Intoxication ………

(1969) H.C.D.

- 23 –

Intoxication – Homicide – Accused incapable of forming intent required for murder.

See case No. 32.

Mistake of fact – Homicide – Person mistake for wild pig at night.

See case No. 33

Self – defence – Manslaughter – Borderline case.

See case No. 47.

EVIDENCE

Child witness – Testimony on oath – Preliminary determinations to be made. Rape – Corroboration of complainant’s testimony.

Jackson @ Ochwalo s/o Oniyiwa v. R., Crim. App. 337-M-67, 30/7/68, Mustafa J.

The accused was convicted of rape. The only evidence for the prosecution was that of complainant, a girl of 13 years. The trial court made no inquiry as to the complainant’s capacity to testify.

Held: (1) Before the complainant, who was a child of tender years, was permitted to testify on oath, the court should have made an inquiry and determined first that she was possessed of sufficient intelligence to justified the reception of her evidence and, second, that she understood the nature of an oath. [Citing s. 152(3), Criminal Procedure Code].

(2) It is a rule of practice that tin a case of rape there should be corroboration of a complainant’s evidence. Conviction quashed.

28. Child witness – Uncorroborated testimony – Sufficiency of evidence. Prior consistent statements identifying accused.

Kibonge s/o Ramadhani v. R., Crim. App. 679-M-68, 22/11/68, Seaton J.

The accused was convicted of burglary and stealing. The only evidence connecting the accused with the crime was that of a child of 10 years. The child testified that she recognised the accused at the time of the offence but there was no evidence that she had identified him until the following day, possibly after she had heard he was suspected.

Held: (1) In the absence of special circumstances a child under the age, or apparent age, of 14 years is a child of tender years. [Citing Kibangeny Arap Kolil v. R., (1959) E.A. 92].

(1969) H.C.D.

- 24 –

(2) The testimony of a child need not, as a matter of law, be corroborated, but the magistrate should warn himself of the risk of acting upon the uncorroborated evidence of such a child. [Citing; Oloo s/o Gai v. R., (1960) E.A. 86].

(3) Where there is a question of the identity of the accused, evidence of there having been a description given and the terms of that description are of great importance. [Citing: Mohamed bin Allui v. R., (1942) 9 E.A.C.A. 72]. This evidence should be given first by the person who gave the description and purported to identify the accused, but also by the person to whom the description was given. The latter evidence is admissible under s. 166, Evidence Act. Conviction quashed.

Expert – Handwriting – Permissible inferences which may be drawn from comparison of writings.

See case No. 49.

Witness called by court – When permitted. Weight of evidence – Court witness disbelieved.

Faustin Manoni v. R. Crim. App. 750-M-68, 29/11/68, Seaton J.

The accused was convicted of stealing by servant. The prosecution presented evidence that he had failed to remit funds which he had collected on behalf of his employer, a sewing machine company. There was some evidence for the defence that the accused had given the money to one Saidi Salum for safekeeping. At the close of the defence case the court noted. “In the circumstances I deem it proper for the court to summon Saidi Salum …….” He was then called as a witness and testified that the money had been left with him for safekeeping. However, in the judgment, the court stated that it did not believe his testimony and the accused were convicted.

Held: (1) The court has the power under s. 280(2), Criminal Procedure Code, to summon a witness for the defence if it is satisfied that his evidence is in any way material to the case However, Saidi Salum was not called as a defence witness and it seems that the court acted under s. 151, Criminal Procedure Code, which empowers the court to summon any material witness.

(2) S. 151 has two parts, the first of which confers discretion on the court to call or not to call a witness and the second of which imposes a mandatory duty to call a witness if it appears to the court that the evidence is essential to the just decision of the case. The latter duty remains even if the evidence to be called supports the case for the prosecution. [Citing: Kulukana Otim v. R., (1963) E.A. 253]. In the present case the magistrate was in doubt as to the result and apparently acted under the second part.

(3) If the magistrate was in doubt before Saidi Salum’s testimony and if he rejected that testimony, the doubt must have remained and the evidence is insufficient to support the conviction. Conviction quashed.

Witnesses ……….

(1969) H.C.D.

- 25 –

Witnesses – Denial of opportunity to call – Ground for Appeal.

See case No. 38.

Witnesses – Testimony by only one of several eye – witnesses – Presumption of fact as to testimony of persons, not called.

Paulo Makimela v. R. Crim. App. 295-D-68, 9/8/68, Biron J.

The accused was convicted of escaping from lawful custody c/s 116, Penal Code. The only evidence for the prosecution was that of a court orderly who testified that the accused escaped while the orderly was taking a ground of eight prisoners, including accused, to remand prison. He said the accused was apprehended after a short chase. The accused’s defence was that the orderly had become angry and assaulted him that he had moved away and stood at a distance to avoid the assault but that he had made no attempt to escape. On appeal, the accused argued that the testimony of one witness was insufficient to support the conviction.

Held: (1) S. 143, Evidence Act provides that, subject to any other written law, “no particular number of witnesses shall in any case be required for the proof of any fact.” Thus additional witnesses were not required as a matter of law.

(2) On the other hand, s. 122, which contains no change in substances from s. 114, Indian Evidence Act, provides, “The court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events [and] human conduct ……” Illustration (g), Indian Evidence Act, provides that the court may presume “that evidence which could be, and is not, produced would, if produced, be unfavorable to the person who withholds it”. In the present case, the court presumes that the testimony of others present at the time of the escape would have been unfavorable to the prosecution as the accused’s defence “is by not means implausible”. Conviction quashed.

FORGERY, COUNTERFEITING AND RELATED OFFENCES

Uttering document without authority – Elements of offence.

See case No. 49.

HOMICIDE

Accidental death – Accused not liable for death resulting from accidental firing of gun.

R. v. Petor s/o Muna, Crim. Sass. 13-DODOMA-68, 27/9/68, Duff J.

The accused, a young man of 18 years, took a shotgun belonging to his employer, in his absence, and went to hunt some “dik-dik”. While returning home, he met the

deceased ………

(1969) H.C.D.

- 26 –

deceased, who was grazing cattle together with his niece, a child of seven years. The accused and the deceased were on friendly terms and had never been known to quarrel. Their meeting was initially an amicable one. The evidence as to what happened subsequent is contradictory. According to the niece of the deceased, the accused greeted the deceased, then aimed the gun at him and fired it. The bullet struck the deceased and killed him. The niece rushed away to get assistance, whole the accused remained behind to tend to the victim. Before the niece left, however, she heard the accused say “that he had not meant to strike the deceased and that he was only king”. The accused gave a different version of the events. He said that “he was showing the deceased that he could aim the gun and that when he was replacing the gun on his back it accidentally fired”. He demonstrated his actions to the court, which remarked that “his manner in carrying the gun and returning it to that position was extremely awkward and dangerous”. The owner of the gun confirmed that its trigger was sensitive and could be set off with only a little force. The accused was charged with murder.

Held: The accused was found not guilty of any offence. The court stated: “If the accused aimed at the deceased and pulled the trigger jokingly, without taking precautions to ascertain whether the gun was loaded or not, then he would be guilty of manslaughter, but if, on the other hand, the gun fired while he was replacing it as suggested by the accused then a question of misadventure would be involved, no criminal liability attaching to the accused”. The court found agreeing with the assessors, that the gun went off while the accused was replacing it on his shoulder, as he described; and so the event was accidental. The court said that since the niece was a child of tender years, her evidence required corroboration under s. 152(3), Criminal Procedure Code, before accused could be convicted on it and that such corroboration was not available.

Insanity – Homicide committed in confused state after epileptic fit.

See case No. 26.

Intoxication – Accused incapable of formulating intent required for murder – Conviction for manslaughter.

R. v. Stanislaus Saroni Maresi, Crim. Sass. 27-A-68, 26/11/68, Platt J.

The accused was charged with murder. He was alleged to have murdered Atifa, wife of Abdulla, by stabbing her number of times. The deceased, accompanied by her friends, had visited the house of Mshamba where there was a pombe party. While they were drinking pombe outside the house the accused also visited Mshamba. He appears to have been in a strange mood in that according to these women he simply drank some pombe, looked around and left. Shortly afterwards the women left the party. It was still light as the walked home. On the way, the accused was seen approaching. At this stage the deceased was about 12 paces away in front of the others approaching a crossroad. She was about

to……….

(1969) H.C.D.

- 27 –

to take the path leading to her house when the accused came up to her with his hands folded across his chest, hidden by his clothing, when all of a sudden he drew a knife and stabbed her. The deceased fell down and the other women raised the alarm and ran away to get help. When the alarm had been raised, Mustafa, the deceased’s son, went to the scene and met the accused who was then in his shamba. When the accused saw him he said that he had killed Mustafa’s mother and he would kill Mustafa too. A quarrel ensued during which they threw stones at each other. Mustafa then left the accused, and having seen his mother’s dead body lying on the road, fainted. Later on, the accused was arrested, whereupon he gave an unsworn statement to the effect that he did not know what had happened.

Held: (1) “I find that it was the accused who killed the deceased and with this conclusion the assessors were also in clear agreement”.

(2) “I pass on then to what is really the crux of the case namely whether the accused killed the deceased with malice aforethought. The prosecution failed to establish any motive for the accused’s actions. I should perhaps say that this was not so much due to lack of investigation as due to the misfortune that certain evidence could not be tendered due to the absence from this country of a vital witness ….. As the evidence stands no motive was put forward, and while that is not fatal to the prosecution in the circumstances of this case, it did leave open the accused’s state of mind. He said in his defence that he did not know what had happened. This was taken up by the defence as being at least possibly indicative of drunk ness …. It was the prosecution’s case that the manner in which the accused acted, showed that he was quite able to understand what he was doing, ad that he must be presumed at least to have intended to cause the deceased grievous harm. In summing up to the assessors, both arguments were explained and the evidence upon which they depended. It was observed that the burden of proof lay upon the persecution to prove beyond reasonable doubt that the accused was clearly in a position to form the intention and did form the intention to cause at least grievous harm. If there was doubt that the prosecution had failed to discharge the burden of proof then the accused must be given the benefit of the doubt and the result would be that he was guilty of manslaughter and not murder. The assessors took a short while to consider their verdict and when the Court resumed they both expressed the clear opinion that the accused could not have been in control of his senses and that he was quality of manslaughter. I have given careful consideration to the evidence in the light of the opinions of the assessors and on the whole I agree with them. It is clear that the accused had been drinking and that he was not in normal frame of mind when he visited Mshamba. While his actions do not readily suggest that of an intoxicated person, nevertheless, as the witnesses for the prosecution were not prepared t state that the accused was not drunk, I can only conclude that there must be some doubt as to his state of mind. The absence of motive seems to me to aggravate that doubt. Accordingly I hold that the prosecution failed to prove beyond reasonable doubt that the accused had formed the intention to cause grievous harm. It follows then that I acquit the

accused ……..

(1969) H.C.D.

- 28 –

Accused of murder but finds him guilty of the lesser offence of manslaughter c/ss 195 and 198 of the Penal Code”.

(3) Accused sentenced to seven years imprisonment.

Manslaughter – Death resulting from injection – Sentence of six months.

See case No. 43.

Manslaughter – Provocation grounds for mitigation in Sentencing.

See case No. 47

Mistake of fact – Throwing spear at shadow in night – Lovemaking habits in Rufiji.

R. v. Sultani Maginga, Crim. Sass. 167-D-68, 7/12/68, Georges C. J.

The deceased and a woman were lying in a rice field at night after having sexual intercourse. The accused, on his way to guard his shamba against the incursions of wild pigs, saw a movement in the grass and shone his torch in that direction, but the batteries were weak and he could see little. He called out, asking whether it was an animal or people. There was no reply. The couple then ran off in different directions. The accused threw his spear at one of the shadow, hitting and fatally wounding the deceased. The accused was charged with murder.

Held: (1) The evidence supported the view that the accused did not know that he was throwing a spear at a man, and the charge of murder could not be sustained.

(2) Manslaughter could not be proved as the evidence did not show the requisite degree of recklessness. Although it was common knowledge in Rufiji that many couples go off into the bush at night and in the day for lovemaking, and the accused must have known this, he was absolved from recklessness because he called out, asking whether the object was human or not. Since he got no reply, he may will have thought it was a pig.

(3) Accused not guilty of any offence. The killing was an accident.

34. Provocation – Sight of wife in pombe club with suspected lover provocation for husband in circumstances. Procedure Deposition of identifying witness admissible after close of defence to supply essential link in prosecution case – section 151, Criminal Procedure Code interpreted.

R. v. Lawrence s/o Makabayi, Crim. Sess. 177-D-68, 9/1/69,

The accused ……….

(1969) H.C.D.

- 29 –

The accused was charged with the murder of Mrimba Matonya. The accused lived at Manzase with his wife. For about four months before the events which led to this change he had suspected her of infidelity. He thought she was having an affair with an Mgogo man and had reported the matter to Mwajuma Athumani who was the ten cell leader of the area. Mwajuma called the wife, Elizabeth, and spoke to her but she denied the affair. There was, however, clear evidence of some degree of familiarity between her and the deceased. Juma Issa, a bar man at a Manzese bar, says that he knew Elizabeth and the deceased quite well and that he saw them frequently at the bar. Usually they arrived together and left together. On the 2^nd June, 1968 they came together at about 8 p.m. and sat in the compound of the bar drinking. He left them there to go to purchase cigarettes. When he returned about 9.15 p.m. there was a great deal of commotion about the bar. He saw the deceased lying near a house which is adjacent to the bar. He had a stop wound on his chest and was bleeding heavily. On that very night the accused called at Mwajum’s house at about 9 p.m. He had a knife in his hand. He told her that he had found the people for whom he had been looking that he had stabbed them. She enquired who the persons he meant were. He said his wife and the Mgogo man. The following day the accused made a statement in which he said that for some time his wife had been in the habit of sleeping away from home without telling him where she was going. Eventually he received information that she was having an affair with Mgogo man. He reported the mater to the authorities and also confronted the Mgogo man who said that the accused could not really do anything about the matter and that he as an old man should leave the young people alone. He went on to say that on the night of the incident he went to that particular club and saw the deceased with his wife embracing each other in the darkness. He told the deceased that only the day before yesterday he had told him to leave his wife alone. Thereupon, in his own words, “By bad luck my reason was suddenly upset and I became suddenly angry as I had warned them many times before. I stabbed him with the knife and my wife as well”.

Held: (1) “Although this was a comparatively simple case there were a number difficulties in the course of hearing …… Through an oversight no evidence of the identification of the body was led. Despite [defence counsel’s} objection I allowed the deposition of the identifying witness, who was absent, to be read in order to supply what was clearly a deficiency in the case for the prosecution. I am satisfied that I was entitled to do so under section 151 of the Criminal Procedure Code”. [Citing: Juma Ali v. R., (1964) E.A. 461; Omari Abdullah Awadh Maalim v. R. (1964) E.A. 672].

(2) “It is urged on behalf of the accused that he acted under provocation in this case and for that reason the offence should be reduced to manslaughter. It is accepted that finding one’s wife in the act of adultery is grave provocation which can reduce a killing done in the heat of the moment from murder to manslaughter. Similarly it has been held that a sudden confession of adultery itself might be held to be provocation of a serious nature enough to reduce a killing to manslaughter. Here the unfaithful wife and her lover were at

a……..

(1969) H.C.D.

- 30 –

a pombe shop and I am satisfied that there was no likelihood of their having been able to commit adultery there or of their having immediately before the killing been in the act of adultery ….. The opinion of the assessors in this case was that the accused was provoked. I directed them that they should ask themselves whether or not the deceased had been guilty of a wrongful act towards the accused in being seen with her in circumstances indicating much familiarity between them at a pombe shop. I also directed them that they should consider whether they thought if this was a wrongful act, it was one which could cause the accused to lose his temper and assault the deceased in the manner in which he did. The first assessor made it clear that the thought it was a wrongful act and that it could provoke an assault of the type committed In this case. The second assessor was not as clear in his opinion and seemed rather to rest his decision on a finding that there was not intention to kill. Since issues of provocation are predominantly issues of fact I would hesitate to disagree with the finding of the assessors that the conduct in this case was provocative. It is, I think, plain in this society that as association between a man and a woman on terms of friendship and companionship, exclusive of sex, is not easily understood. I would think that the presence of the accused’s wife at a pombe shop drinking with the deceased would have led the ordinary person in the society to infer in the absence of any other relationship between them that there was a sexual relationship. Added to this was the fact that the accused’s wife on a number of occasions in the last four months slept away from home. There was also the remark alleged to have been made by the deceased that the accused as an old man should leave the youngsters alone. It is possible, as the accused said, that the sight of two of them behaving familiarly in the pombe shop should have upset his self control and caused the great anger which led to the single knife wound. In these circumstances I accept the opinion of the assessors and find the accused not guilty of murder as charged but guilty of manslaughter”.

(3) Accused sentenced to five years imprisonment.

35. Provocation – Insults, a threat to use witchcraft and assault sufficient provocation. – Conviction for manslaughter.

R. v. Ikaka s/o Murenda, Crim. Sass 64-M-68, 10/12/68, Seaton J.

The accused was tried for murder c/s 196, Penal Code, On the day before the killing, the accused had collected 6 women and 2 men, all fellow – villagers, to go with him to consult witch-doctors regarding his sister’s sickness. The deceased Boke was a member of the party. She was a woman of about 50 years of age. The group of villagers went first to a witch-doctor named Wanzera, who performed witchcraft ceremonies and then announced the result of his divining was that Boke had bewitched the sister. The next morning, they consulted another witch, a woman named Wakuru, who confirmed, after performing her witchcraft rituals, that Boke was a witch.

The group ………….

(1969) H.C.D.

- 31 –

The group of villagers left for home. On the way, they came to a river, it seemed a likely place to bathe and the whole party did so except the deceased Boke and the accused. Boke said she would not bathe because she wanted to go quickly to the sick person and give her some medicine. The accused told Boke, “Let’s go ahead”, and the two of them went on. Temerange, was the first to finish bathing and followed them. From a distance of about 100 paces behind, Temerange said he saw the accused striking Boke, and then when he caught up with them, he found Boke lying face downwards, dead. The accused in an unsworn statement explained that after leaving their colleagues behind them bathing in the river the deceased said that people told him stupid things saying she had bewitched his sister. She then threatened the accused that if he played with her, she would prepare medicine and he himself would die. Then, the accused said, the deceased abused him in their own language saying words which mean: “Fornicate your own mother. The anus of your mother. The head of your mother”. Further, the accused said, the deceased pushed him, whereupon he hit her with a stick. His intention was not to kill him but only to make her fear him so she would go home with him to give medicine to his sick sister.

Held: (1) “I am inclined to believe that the accused and Boke had a quarrel on the road after they left the group at the river. This would be consistent with the evidence of the prosecution witnesses …….. that there was a happy and friendly atmosphere amongst the members of the group along the way back home and up to the time the stopped to bather. It seems that they all, including the accused, believed the deceased would give the sick person medicine to make her well. The reason for the accused’s mood to change suddenly into one of violence must have been more than the knowledge that the deceased was witch – he had known this since the day before. I believe that the deceased said or did something there along the road which provoked the accused suddenly to strike her. If the deceased used the words ascribed to her by the accused and pushed him, the insult and the threat to use her witchcraft to kill him plus the physical assault could have provoked him to act suddenly in the heat of passion. The accused said that his intention was only to make the deceased fear him. Whether or not that is so, it appears he was so provoked that he was deprived of the power of self control and induces to assault the deceased …. I am satisfied of the truth of the accused’s story as to the sudden rousing of his passion, the striking of blows in great fury, then the remorse which made the accused confess his crime to the fellow-villagers who arrived at the scene. I agree with the opinions of both the assessors. I acquit him of the offence of murder and find the accused guilty of manslaughter and convict him accordingly.

(2) Accused sentenced to 5 years imprisonment.

LIQUOR

Conviction under Moshi (Manufacture and Distillation) Act, 1966 – Invalid because Act not yet in force.

See case No. 39.

(1969) H.C.D.

- 32 –

MALICIOUS INJURY TO PROPERTY

Malicious damage to property – Elements of offence – Claim of right a good defence.

Yusufu Hussein v. R. (PC) Crim. App. 210-A-68, 30/11/68, Platt J.

Member of a TANU Branch selected a piece of land on which to build an office. In the following years, the accused went onto the land and began cultivating it, having been permitted to do so by the local authorities. While he was temporarily absent, the local TANU branch began building the office, erecting poles on the land, which at that time had no crops on it. When the accused returned, he removed the poles and left them in a heap outside the land. He was charged and convicted of malicious damage to property, c/s 326(1), Penal Code.

Held: (1) In order for the accused to be convicted of malicious damage to property, “the prosecution had to prove that the [accused] had willfully and unlawfully destroyed the partly constructed building. They had proved willful distraction, it was a deliberate act – but unlawfully was in question”. But it follows from the evidence that the accused “had a clear claim of right to the land, and that he was justified in treating the TANU Officials as trespassers unless they proved superior title. On that basis he was no guilty”.

(2) (Obiter) “Both counsel referred me to an opinion of this court per Saidi J. in which it was held that where a criminal case arose out of a dispute as to the ownership of land it was better that the issue of ownership was decided first in a civil court. That appears to me a salutary direction. In the present case if the right to the land had been established no doubt compensation would have been awarded which would have covered the loss if indeed [the accused] was at fault”. Appeal allowed and conviction quashed.

PROCEDURE

Accused apparently unable to understand proceedings though sane –

Reason should be determined.

R. v. Daudi Milamibulo, Crim. Rev. 66-M-68, 9/11/68, Seaton J.

The accused was charged with theft. He did not reply when the charge was read and explained to him. The case was adjourned so that a medical officer could determine whether his failure to respond was due to illness or deafness. The report was never received, and the trial court eventually proceeded with the case under s. 169, Criminal Procedure Code, which deals with proceeding where the accused, though not in same, is unable to understand the proceedings. After hearing evidence for the prosecution the court decided that there was sufficient evidence to justify a conviction. The court remanded the accused to prison to be detained at the Minister’s pleasure as

provided ……..

(1969) H.C.D.

- 33 –

Provided by s. 169(1) (a), Criminal Procedure Code, since he appeared unable to understand the proceedings “either out of malice or by visitation of God”.

Held: (1) S.169 deals with persons who are unable to understand the proceedings from causes other than mental derangement such as deafness or ignorance of the language and was relevant to the present proceedings. [Citing Sohoni’s Commentaries on the Indian Criminal Procedure Code, 13^th edn. (1931), p. 762].

(2) Although there may be difficulties involved [Citing Lelanon Leseroi v. R., (1964) E.A. 111], the court should make an attempt to determine the reasons for accused’s inability to understand and to investigate means for communicating with him, such as experts in sign language or the use of person familiar with his language. [Citing Sohoni, supra, p. 763]. A decision as to whether his silence is due to legitimate causes or to malice should be made before proceeding to hear the evidence for the prosecution. If the silence is due to legitimate causes, then the court should proceed under s. 169. But where it is due to malice, s. 203 (4) applies, and the court should treat the accused as refusing to plea and enter a plea of “not guilty” for him. Since the cause of silence was not determined here, the case is remitted or trial de novo.

Appeal to district court – Previous revision by district court of same case – Power to quash fine on revision. Evidence – Accused not permitted to call witness – Miscarriage of justice

Philipo Mtoakodi v. R., Crim. App. 684-M-68, 28/11/68 Seaton J.

The accused was convicted in Primary Court of cattle theft and was sentenced to 3 years imprisonment and 24 strokes and to a fine of Shs. 500/- and in addition was ordered to pay compensation of Shs. 300/-. During the trial the Primary Court refused to permit the accused to call one of his wives as a witness, apparently on the theory that he had to call all of his wives or none of them. Exercising its revisional jurisdiction without notice to the accused the district court found that there were no special circumstances justifying a fine in addition to the prison sentence and set aside the fine. The accused then appealed the conviction to the District Court but his appeal was denied on the ground that an order in revision had already been made. Accused then appealed to the High Court against the conviction and the District Court dismissal of the appeal.

Held (1) The revisional order quashing the fine was properly made under s. 17, Magistrates’ Courts Act, Cap. 537.

(2) Although the District Court could not on appeal review the previous order of revision made by a magistrate of that court, it could consider the portions of the memorandum of appeal which concerned matters which had not been the subject of its previous consideration such as the appeal against the conviction [Citing Suleman Ahmed v. Rex, (1922) 9 E.A.P.L.R. 19; Gordhan Gopal v. Chagan Raja (1935) 17 K.L.R. 65].

(3) “(T)here is a question of some substance as to whether [accused] suffered an injustice by being deprived of the right to

call ……..

(1969) H.C.D.

- 34 –

call his wife …….. as a defence witness”. Appeal allowed in part and case remitted to district court to hear and determine the appeal against conviction in the manner prescribed in ss. 16 – 17, Magistrates’ Courts Act.

Charge of theft – Conviction as accessory after the fact improper because offences not cognate.

Convictions under Act not yet in force – Whether valid.

R. v. Abdallah s/o Robert and Beita d/o Michael, Crim. Rev. 138 & 139-D-68, 26/12/68, Biron J.

The accused were convicted on their own pleas of being in possession of Moshi without a licence contrary to the Moshi (Manufacture and Distillation) Act, 1966. The question for determination was whether the convictions could stand since the accused were changed with committing an offence under an Act not yet in force

Held: The proceedings are a because under section 1 of the Moshi (Manufacture and Distillation) Act, 1966 it is provided that, “it shall come into operation on such date as the Minister may in the Gazette appoint”, and the Minister had not yet appointed any date. The court distinguished this case from R. v. Iudo Parsad Jamietram Dave (1963) E.A. 65 where the accused was convicted of an offence under an Ordinance which at the time of the commission of the offence had not been brought into operation, thought it was subsequent to the commission of the offence, on two grounds: (1) In the latter case the particular provisions under which the accused was convicted in the new Ordinance were the same as those under the old Ordinance in every essential whereas in the instant case the new Act does not repeal and replace the Local Liquor Act, Cap 77 Supp. 44. (2) In the latter case the mis-citation of the Ordinance was not prejudicial to the accused since the material sections in the old and new Ordinance were the same in every essential whereas in the instant case the accused were prejudiced in being charged under the new Act since the penalty is heavier than in the old and extant Act.

Deposition of identifying witness admissible after close of defence to supply essential link in prosecution case – Section 151, Criminal Procedure Code, interpreted.

See case No. 34.

Report of handwriting expert – Proper farm prescribed.

See case No. 49.

Revisional jurisdiction – Revisional order proper only where lower decision illegal or incorrect or proceedings irregular.

Hassani Msange Sarota v. R., Crim. App. 559-M-69, 29/11/68,

The accused ……..

(1969) H.C.D.

- 35 –

The accused was charged in Primary Court with stealing and was acquitted. The District Court magistrate then exercised his revisional jurisdiction and ordered that the police reinvestigate the case and file new charges if appropriate. The District Court did not cite any error in the lower court judgment but acted on the ground that the case was a “serious one and wanted careful investigation”. As a result the accused was convicted in a second proceeding of stealing by servant.

Held: (1) An appellate court may revise an order or decision only if the order or decision of the lower court is incorrect, illegal or improper or if the proceedings are irregular. He may not do so merely because he disagrees with the result. In the present case there was no error in the lower court judgment and the revisional order was improper.

(2) Because the revisional order in the first proceeding was improper, the second proceeding as a nullity. Conviction quashed.

Witness called by court – When permitted or required.

See case No. 29.

ROAD TRAFFIC

Sentence – Driver not responsible for disrepair of vehicle – Fine reduced.

SENTENCE

Defilement – Mitigating factors – Youth of the parties – Strong temptation.

R. v. Amiri s/o Ali, Crim. Rev. 3-D-69, 10/1/69, Biron J.

The accused was convicted on his two years and to six strokes corporal punishment. The accused, who was sleeping in the same room as the complainant, in the middle of the night went to her bed, and without even awakening her, undressed her and had sexual intercourse with her, not only without her consent but without her knowledge. She however awakened, raised the alarm, and the accused was apprehended on the spot.

Held: “I fully agree with the learned magistrate that the offence is serious, although unfortunately rather prevalent, and must be discouraged and stamped out. Even so, every case must be considered in its own particular context and surrounding circumstances …. There are in this instant case strong mitigating factor ….. First there is the age of the two parties. The magistrate will recall that when the girl was first examined the doctor found her to be under fourteen years he then very properly had her again medically examined and …. The doctor found her to be under twelve years of age. Likewise, in the case of the

accused ……..

(1969) H.C.D.

- 36 –

Accused, after a thorough medical examination, he was found to be over seventeen …… Thus the accused is just above the age of a juvenile, whilst the complainant is just below the age of consent. But the strongest mitigating factor is that this case differs from the usual run of such offences, where the offender entices a little girl into the bush, or rapes a little girl whilst her parents are away. In this case the accused had temptation thrust upon him, in that, sleeping together in the same room; he was doubtless affected by the proximity and tempted by the sight and presence of the sleeping girl so near him. In those circumstances… a short sharp lesson to teach the accused self-control would serve a much more useful purpose than sending him to prison for a long spell, where he would be exposed to the dangers of contracts with hardened criminals and probably come out a much worse citizen than when he went in ….. the sentence of imprisonment imposed is accordingly reduced to such term as will result in the immediate discharge of the accused, and the corporal punishment awarded is increased to ten strokes”.

Imprisonment – Inappropriate where offence is trivial and accused is youthful first offender.

R. v. Omari s/o Saidi Crim. Rev. 124-D-68, 19/11/68, Biron J.

The accused a youth of 19 years, was charged with stealing nine pigeons worth in all Shs. 9/-. In answer to the charge, he stated that he had stolen the pigeons, had roasted the, and had already “devoured” eight but was caught with the ninth. He was convicted and sentenced to four month’s imprisonment.

Held; Sentence reduced so as to result in immediate discharge. The court remarked: “In view of the fact that the accused was a first offender, and taking into consideration his youth, the magistrate could will ask himself whether a term of imprisonment was really called for, and, further still, whether such a short term could serve any useful purpose, but rather the reverse this youth will have been brought into contact with hardened criminals, from which he is hardly likely to benefit. Further, the unstated terrors of prison, which could have served as a deterrent, will have been dissipated. As the learned magistrate will appreciate, the best course in this case would have been to have placed the accused on probation”.

Imprisonment – Manslaughter – Death resulting from injection – Sentence of 6 months.

R. v. Kassian Paul Kauta, Crim. Sass. 175-D-68, 5/12/68, Georges C. J.

The accused in 1952-53 underwent training at Peramiho nurses’ school near Songea. After leaving he chose a different career, but kept a syringe, a needle and some poisonous drugs. On a visit to Kibaha, he was invited to see a child who was ill with a stomach complaint. The accused gave him two injections, of penicillin and of chloroquine. The child died from shock consequent on the injection, possibly due to an allergic reaction of penicillin. The accused was charge with manslaughter.

Held: ………

(1969) H.C.D.

- 37 –

Held: The accused was convicted of manslaughter on his own plea and sentenced to six months’ imprisonment. In passing sentence, the court remarked. “The accused ….. should have known better. He is clearly not in the class of an uneducated bush doctor. The evidence … shows that he was holding himself out to be a qualified doctor …. The fact that the parents of the child went to his as a person with a reputation for curing would indicate that he was practicing as a doctor. This type of activity must be stopped. I am conscious that it is unlikely that the accused will attempt this practice again but I think nonetheless that he must be punished since this type of conduct is not at all uncommon and the public must be made to realise that it will not be tolerated”.

Minimum Sentences Act – Special circumstances – Accused acted under influence of older man with criminal record.

Swalehe s/o Mohamedi, Crim. App. 149-D-68, 10/1/69, Biron J.

The appellant was convicted in the Primary Court of Mtama on two pairs of related counts of housebreaking and stealing, c/s 294(1) and 265, Penal Code. He was sentenced to imprisonment for two years on each of the housebreaking convictions and to imprisonment for two months and three months respectively, on the convictions for theft, all the sentences of imprisonment to run concurrently, and to the statutory twenty four strokes corporal punishment, under the Minimum Sentences Act.

Held: ……… “There are, to my mind, special circumstances apparent from the facts of the offences themselves. The offences were committed together with another man much older than the appellant, whose age was found by the primary court magistrate to be nineteen years. This other man who, incidentally, did not appeal, was alleged to have had a string of previous convictions, of which he denied all but two, of house-breaking and stealing, when he was sentenced to a substantive term of imprisonment for three years and to twenty four strokes corporal punishment. It is thus apparent that in committing these instant offences the appellant was influenced by this older man with a criminal record, whose age, incidentally, was found by the magistrate to be about thirty five years. The combination of all the relevant circumstances, to my mind, constitutes special circumstances within the meaning to my mind, constitutes special circumstances within the meaning of the Minimum Sentences Act qualifying the appellant for the exercise of the court’s discretion. Bearing in mind his youth, I consider that the justice of the case would be met by the imposition of a substantive sentence of imprisonment for one year”.

Minimum Sentences Act – Special circumstances – Advanced age of accused and fact that he was merely a passive mediator in a corrupt transaction.

Hassani s/o Shenlugu, Crim. App. 694-D-68, 15/1/69, Biron J.

The appellant was convicted on his own plea of a corrupt transaction with agent c/s 5 (2), Prevention of Corruption Ordinance, Cap. 400. He was sentenced to imprisonment for two years under the Minimum Sentences Act. It would appeal

that he ………..

(1969) H.C.D.

- 38 –

that he corruptly gave Shs. 135/-, which he had received from three men, to a primary court magistrate to whom he was related as an inducement to “release and close the cases” against those three men, who were charged with criminal trespass.

Held: With respect to sentence, “the age of the appellant is given I the charge sheet as seventy seven years, though the magistrate in his ‘Judgment’ stated that he appeared to him to be between sixty and seventy years old. The offences, or, rather, offences, were, as noted, disclosed to the police by the appellant himself. It would appear, as conceded by learned state Attorney, that he merely acted as a passive mediator. It is thus apparent that the appellant, because of his relationship to the magistrate before whom they were facing charges, was merely used by these three men to pass the bribes to him, and because of his advanced age – he may well even be senile – he allowed himself to be so used, as there is nothing to indicate that the appellant was deriving any benefit or advantage from the whole transaction. He was therefore, to borrow the terminology from another context, a mere conduit pipe. The combination of these circumstances, to my mind, constitutes special circumstances which quality the appellant for the exercise of the court’s discretion within the meaning of section 5(2) of the Minimum Sentences Act. In the result … the sentence imposed is set aside and, in view of the very advanced age of the appellant, and taking into consideration all the relevant circumstances, there is imposed in respect of each conviction such term of imprisonment, to run concurrently with one another, as will result In the immediate discharge of the appellant”.

Mitigating factor – Lack of mens rea in strict liability offences.

Thanker Singh v. R., Crim. App. 715-D-68, 15/1/69, Biron J.

The appellant was convicted on his own pleas, of failing to complete and forward to the Director of the National Provident Fund, the appropriate forms in respect of contributions to the Fund, and of failure to pay into the Fund the contributions from his employees, c/s 38(1) and 38(1)(d), National Provident Fund Act, No. 36 of 1964. He was sentenced respectively to a fine of Shs. 200/- or imprisonment for two months in default and a fine of Shs. 400/- or imprisonment for two months in default. He is now appealing from the sentences.

Held: “In mitigation the appellant’s counsel is recorded as stating that the appellant employed his labour on contractual work from the Dodoma District Council, and as the Dodoma District Council had delayed payments due on the contract, he was therefore unable to forward the contributions towards the Provident Fund ….. There is nothing I the record to indicate whether the magistrate believed the plea in mitigation or not. The facts stated in the plea, if untrue, could easily have been disproved, and as they are by no means improbable they may will be, in fact probably are, true, therefore, in the absence of any contradiction they should be accepted as true. To my mind, the fact that the appellant

himself ……..

(1969) H.C.D.

- 39 –

Himself did not receive payment from the District Council, and therefore was unable to forward the contributions to the Fund, constitutes a very strong mitigating factor, particularly so, as submitted by learned counsel who appeared for the appellant at the hearing of the appeal, as he is not a rich man and he was not therefore deliberately withholding the contributions of his employees, and his should have been taken into consideration by the magistrate in imposing sentence. The appeal is accordingly allowed and the fine awarded on each conviction is reduced to Shs. 100/-“.

Principle of punishment – Provocation – Manslaughter – Deceased caught in adultery – Sentence of 12 months.

R. v. Mwita s/o Muhoni, Crim. Sass. 186-M-68, 16/12/68, Seaton J.

The accused found the deceased committing adultery with his wife in the bush. The deceased ran away, with the accused chasing him. Then he stopped and hit the accused with a stick on the arm. The accused hit him back on the head with a piece of sugar cane. The two grapple and struggled for some time, and finally the accused, realizing he was losing the battle, took out a pocket knife and stabbed the deceased on the upper arm. The deceased died shortly after, due to excessive bleeding resulting from a severed artery. The accused was charged with manslaughter.

Held: The accused was convicted of manslaughter o his own plea and sentenced to 12 months imprisonment. In sentencing, the court remarked: “The learned defence counsel has observed that this case is on the border – line of self –defence and manslaughter. It is certainly a gross provocation to find oneself the victim of adultery and then of an assault by the adulterer. I take into consideration that the deceased was a younger man and may have been stronger than the accused. It would have been a more fact fight had accused continued to use his fists and the stick of sugar cane rather than resorting to hi knife. But the Court can appreciate that his sense of indignity may have been so great that, coupled with his fear of being physically worsted, the accused reacted desperately. He was protecting his honour and the court should be lenient accordingly”.

Road traffic – Driver not responsible for disrepair of vehicle – Fine reduced.

R. v. Albert s/o Mwandenuke, Crim. Rev. 132-D-68, 2/12/68, Biron J

The accused was convicted on his own plea of driving a motor vehicle with defective steering c/ss 43(d) and 70, Traffic Ordinance, Cap. 168 and was fined Shs. 70/- and ordered to pay the vehicle inspector’s fee of Shs. 20/-.

Held: Fine reduced to Shs. 30/- and the order to pay the inspector’s fee set aside. “As is abundantly clear from the proceeding, the accused was a driver employed by the Tukuyu Agencies. He could, therefore …. Hardly be held responsible for the state of disrepair of the vehicle

Owned …………..

(1969) H.D.C

- 40 –

owned by his employers. The responsibility for maintaining a vehicle in good order and roadworthy condition is that of the owner, although a driver may sometimes share such liability if, for example, he fails to report defects to his employer, though he certainly cannot be held responsible for the state of the vehicle, and, should he refuse to drive it, he may well suffer the loss of his job. In the circumstances the fine plus the inspection fee, which doubtless constitute a substantial part of a month’s salary, cannot be justified”.

SEXUAL OFFENCES

Defilement – Mitigating factors in sentencing – Youth of the parties – Strong temptation.

See case No. 41.

Rape – Corroboration of complainant’s testimony required

See case No. 27.

THEFT AND RELATED OFFENCES.

Accessory after the fact a minor but not cognate offence to theft.

See case No. 25.

False pretences – Statement of future intention not false pretence. Uttering document without authority – Elements of offence. Report of handwriting expert – Proper form prescribed.

Lukia Saidi v. R., Crim. App. 626-M-68, 1/11/68, Seaton J.

The accused was charged in count one with making a document without authority [s. 346(1), Penal Code], in count two with uttering a document without authority [s. 346(2) ], and in count three with obtaining goods by false pretences [s. 302]. There was some evidence that the accused had obtained goods on credit by making a written agreement to pay at the end of the month and signing it with the name of another person. The trial court convicted the accused on the first two counts. In doing so the court relied heavily on a written report submitted by a document examiner which stated that he had compared the agreement with handwriting samples of the accused and others and concluded, “I am of the opinion that (accused) is the writer of the disputed handwriting”. The accused was acquitted on the third count on the ground that the promise to pay at the end of the month was a representation with reference to the future and not a matter of fact past or present.

Held: (1) In acquitting the accused on the third count, the trial court correctly applied the definition of false pretences in s. 301, Penal Code.

(2) With ………..

(1969) H.C.D.

- 41 –

(2) With regard to the second count, s. 346(2) refers to a document that is made, sent or executed by one person and uttered by another. There is no evidence of this in the present case.

(3) The report of the handwriting expert is not in the form prescribed by s. 154C, Criminal Procedure Code, in that it does not indicate any of the similarities or comparisons between the disputed writing and the specimen writings as is required by the 7^th Schedule, Criminal Procedure Code. Such an expert can say in an appropriate case that he does not believe that a particular writing was by a particular person. However, the most that he can say positively is that the two writings are so similar as to be indistinguishable. [Citing Hassan Salum v. R., (1964) E.A. 126] Appeal allowed on both counts.

Sentence – Prison term inappropriate where offence is trivial and accused is youthful first offender.

See case No. 42.

(1969) H.C.D.

- 42 –

CIVIL CASES

CUSTOMARY LAW

Family law – Nyakyusa custom – Claim by ex-wife against ex-husband for cattle as ‘pension’ is maintainable.

See case No. 50

Land law – Haya custom – House built partially on land of another.

See case No. 51.

Land law – Nyakyusa custom – Allocation of land by chief.

See case No. 52

FAMILY LAW

Nyakyusa Law – Claim by ex-wife against ex-husband for cattle as ‘pension’ is maintainable.

Mwaipopo s/o Mwakibale v. Mtelina d/o Nbimbile. (PC) Civ. App. 44-D-68, 6/1/69, Saidi J.

M had divorced E because she neglected him when he was ill. He undertook not to claim a refund of the dowry so long as she did not remarry because they had lived together for a long time and had four children. E said she would not marry because she was old, but then promised that if she did want to remarry, she would give hi first refusal. M later proposed to E. He did not receive an answer and later heard that she had married another man in the village who had paid dowry for her. M did nothing about this himself but contested her claim for “ng’ombe wa pongezi” – four cattle for a ‘pension’ for having lived with him for 23 years and borne him four children. He contended that he was entitled to four of the six cattle paid to her by the second husband. The assessors in both the courts below were unanimously of the view that the claim to a pension was maintainable under Nyakyusa Law. They awarded the cattle from the second dowry to M as partial refund of this dowry, less three to E as her pension.

Held: (1) By paragraph 52(b) of the Customary Law (Declaration) Order 1963 no dowry or any part of it is to be refunded to the husband if the wife has borne him modify paragraph 52 in consideration of the guilt of either spouse and gives the court power to consider other matters which are relevant thought not specified in the order, for example, re-marriage of the divorced wife and the payment of another dowry.

(2) The husband, M, is entitled to half the second dowry.

The ………..

(1969) H.C.D.

- 43 –

The claim by an ex-wife for a pension is maintainable under Nyakyusa Law. E is entitled to the other half of the dowry.

(3) Appeal dismissed.

LAND LAW

51. Haya customary law – House Built partially on land of another.

Ndamugoba Herman v. Byarugaba Herman, (PC) Civ. App. 30-M-68, 24/2/69, Bramble J.

The appellant was the successful party in a claim in the Katoma Primary Court for a parcel of land. The Bukoba District court reversed the decision and this has given rise to the present appeal. The facts are that the parties are the sons of the deceased, Herman, who made a will. He pointed out to the witnesses to the will how he wanted a certain parcel of land to be divided and it was that the boundary line should pass through the middle of the big house, the Nyaruju. The respondent was the principal heir and no specific reference to the Nyaruju was made in the will. The parties to this dispute inherited the land on either side of the boundary line mentioned above. The respondent as principal heir occupied the Nyaruju, but subsequently broke it down and built himself a new house on the same spot. Half of this building, as did the Nyaruju, protrudes on the appellant’s land and he is now claiming possession of that portion of land. The present building is about ten years old.

Held: (1) “Since the Nyaruju was not specifically distributed by the will according to customary law the principal heir, the defendant, inherited it. So long as the building remained substantially the same he could occupy it and the land on which it was built, thought not as owner of the portion of appellant’s land on which it stood. Having completely broken down the Nyaruju and built himself a new hut he will have lost all rights to the occupation of the appellant’s land in that the building could no longer be considered the nyumba nyaruju in terms of the estate of the deceased and the appellant is entitled to possession of the plot in dispute. I do not, therefore, agree with the view of the District Court that the land where Nyaruju was built and where the respondent built his house was utterly his since this would not be in keeping with the terms of the will which made a firm distribution of that part of the property”.

(2) “Having regard to the value of the house, it may be advisable for the respondent to purchase the land in question, more so as it has been standing on the spot for so long. This Court cannot make an order in these terms”. Appeal allowed.

52. Nyakyusa customary law – Allocation of land by chief.

Kasyupa Mwakabuta v. Salimu Mwalubwelo, (PC) Civ. App. 215-D-67, 3/5/68, Biron J.

The land ……….

(1969) H.C.D.

- 44-

The land in dispute is a cultivated shamba, and it is common ground that it originally belonged to the respondent, a village headman. When the appellant came to settle in the respondent’s village, he applied to the respondent for some land, and the respondent duly let him go into occupation of the disputed shamba. The appellant’s case was that he was allocated the land as an out –and-out grant. The respondent’s case was that the shamba, which, he said, really belonged to his sons, was only granted by him for temporary use, as his sons had left home seeking work elsewhere, and he accordingly let the appellant have the use of the land in his sons’ absence.

At the hearing of the appeal before the District Court, the respondent asserted that the appellant, upon returning the shamba in dispute, went to the local chief, whom he informed that he had returned the respondent’s plantation to him, and consequently asked to be allocated some other land. The chief accordingly complied and allocated him a piece of land. Both parties expressly declared before the district Court that they would abide by whatever the chief stated. The District Court duly visited the site and, of its own motion, called the chief in question. He categorically stated that the appellant came to him asking to be allocated some land, as he had returned to the respondent the plantation which the latter had allowed him to cultivate temporarily.

Held: The District Court’s decision was full supported and justified by the evidence, “The appellant has been given his own shamba by his chief, and therefore it is his duty to develop his new shamba as the respondent had done this one”.

The appeal is dismissed.

(1969) H.C.D.

- 45 –

CRIMINAL CASES

ASSAULTS AND RELATED OFFENCES

Assault causing actual bodily harm – Sentence of two years appropriate in circumstances.

See case No. 65.

Causing grievous harm – Not minor offence to robbery.

See case No. 59.

Unlawful wounding – Sentence – Two and half years excessive where accused thought complainant was thief.

See case No. 68.

Unlawful wounding – Sentence of nine months too severe where accused used excessive force in defence of property.

See case No. 54.

CHILDREN AND YOUNG PERSONS

Person under 16 years exempt from criminal prosecution in High court except for homicide – Time for determining age is date of prosecution not date of offence – Section 3 (2) and 6. Children and Young Persons Ordinance, interpreted. Sentence – Conditional discharge appropriate in circumstances.

R. v. Odero s/o Obila, Crim. Sass. 140-M-68, 7/12/68, Seaton J.

The accused was brought for trial on information that he had, knowing the contents thereof, indirectly caused one Paulo Ojiwa to receive a letter threatening to kill Johana Otiano, the accused’s uncle, c/s 214, Penal Code. At the Preliminary Inquiry the prosecutor asserted that the accused was aged 16 years but the accused stated that he was born on 24^th September, 1952. The Court thereupon noted in the record; “Accused is therefore a juvenile and his case will be heard in camera”. The proceedings then continued – Presumably in camera – but according to the routine laid down in Part V11 of the Criminal Procedure Code for the committal of accused persons for trial to the High Court.

Held: (1) “The learned District Magistrate quite properly decided that as the accused was a juvenile, his case should be heard “in camera”, if by that expression on may under-stand that the court thereafter sat in a different building or room from that in which the ordinary sitting of the court were held ……. However, the learned District Magistrate appears to have over locked the provisions of sub-section 2 of section 3 and

section ………

(1969) H.C.D.

- 46 –

section 6 of the Ordinance. Section 3(2) provides that if, in the course of any proceedings in a District Court, it appears that the person charged or the person to whom the proceedings relate is under 16 years of age, the court shall continue sitting as a juvenile court for the purposes of the Ordinance. Then section 6 provides that when a young person is brought before a juvenile court for any offence other than homicide the case shall be finally disposed of in such court. I have not been able to find any case in which these two sections have been the subject of interpretation and I must confess that I do not find their meaning to be crystal clear. It seems to me however that their combined effect is to provide immunity to persons under 16 years of age (except on charges of homicide) from criminal prosecution in the High Court. The proceedings before the District Court should have been dealt with as if jurisdiction to dispose of an offence under section 214 of the Penal Code had been conferred on that Court ….. By the time this case came on for trial in this court, the accused had already celebrated his 16^th birthday. I would agree with the reasoning in the case of R. v. Fitt (1919) 2 Ir. R. 35, cited in Archbold, 28^th ed. At Para. 669, that the accused who at the time when he committed the offence was under 16 but at the time of trial is over 16, is not a “young person” within the meaning of the Ordinance and this Court may try him as an adult. He was accordingly required to plead”.

(2) Accused was convicted on his own plea.

(3) “The sending of this letter appears to have been provoked by the accused’s own fear that his uncle was intending to lie in waif to beat him with a club. I am satisfied the accused had no intention to carry out his threats. His action was somewhat like that of the dog which barks because it is afraid of the intruder. Nevertheless, it was a bad action and particularly unworthy of the respect which the accused should normally have towards his uncle; But I believe the accused has shown genuine remorse for his regard to the relationship between the complainant and the accused, the fact that the accused is so young and his present attitude of remorse, I do not believe it would be expedient to inflict punishment on him. Nor would I consider a probation order appropriate ….. Accordingly, I order the accused to be discharged subject to the condition that he commits no offence during the next twelve months from this date”.

CRIMINAL RESPONSIBILITY

Claim of right – Youth and good record of accused relevant in assessing whether honest claim of right existed.

See case No. 71.

Defence of property – English law applicable – Use of firearm justified only as last resort. Sentence – Racial considerations irrelevant. Confiscation of firearm – Improper and illegal.

Mohamedi Alliy v. R. Crim. App. 521-D-68, 6/12/68, Georges

The appellant ……….

(1969) H.C.D.

- 47 –

The appellant was convicted of unlawful wounding c/s 228(1), Penal Code, and sentenced to 9 months imprisonment. It was ordered that the shotgun with which the wounds had been inflicted should be confiscated. The appellant lived in a minor settlement at Kilwa. He had a coconut shamba and for some time had been troubled by thieves. On the day in question he decided to mount guard in his shamba with the shotgun. While there he heard sounds, fired his gun and wounded the complainant Saidi Ali Katombosi. It is admitted that Saidi and two other men had gone to the shamba to steal coconuts.

Held: (1) “Section 18 of the Penal Code states:_ “Subject to any express provisions in this Code or any other law in operation in the territory, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English law”. My attention has not been drawn to any specific local law dealing with the use of force in defence of property, nor am I myself aware of any. It would appear therefore that English law applies”.

(2) “Basically the common law does not favour the use of firearms in the defence of property unless the life of the defender himself is threatened …. (Citing: R. v. Scully (1824) CARU p. 319, and R. v. Dadson (1850) 2 Den p. 35). In Tanzania stealing is a felony and quite apart from that the appellant would have been entitled under provisions of section 32 (2) of the Criminal Procedure Code to arrest any one found committing any offence involving injury to his property. Under the provisions of sec. 19(2) he would be entitled, if such person attempted to avoid arrest, to use all means necessary to effect the arrest. This could presumably involve the use of a firearm. I do not think, in this case however, that the use of firearm could be said to be justified. The appellant could not have been positive that the persons in his estate were in fact thieves. At best he would merely have seen people running away and they could well have been only trespassing. It is clear that he did not attempt to shout a warning to stop on the threat of being fired at. It is clear also that he did not aim his rifle up in the air to frighten them in order to induce them to stop without actual injury. I think all these are steps which should be taken before one aims deliberately at the offender with the intention of bringing him down. For these reasons therefore, I think that the conviction is justified and should be supported”.

(3) “The sentence is, however, in my opinion manifestly too severe. The appellant is a first offender. The injuries inflicted on the complainant were minor. The complainant is an admitted thief. The operation was clearly an organized one involving three people and cannot be said to be merely the sad case of a poor person yielding to sudden temptation and stealing a coconut for his own use …. One has an uncomfortable feeling that the district Magistrate permitted consideration of race to effect his judgment when he says: - “This Court feels compelled to set an example to impose a sentence which will act as guide to those in the same position as that of the accused in this ancient occupied Arab minor settlement. It is now a free minor settlement”.

Further …….

(1969) H.C.D.

- 48 –

Further, the District Magistrate referred to the attitude of the appellant as that of being dog-in-the-manger because he owned a shop in the village from which he gained his livelihood at the same time insisted on guarding his coconut shamba in the evening. I fail entirely to understand the logic of this statement … the accused ……. Has already spent three and a half month in prison. This is quite enough. Indeed under the circumstances of his case a fine would have needed appropriate punishment but since this cannot be imposed I shall vary the sentence to such a term of imprisonment as will result in the immediate release of the appellant”.

(4) “State Attorney concedes that there is no provision justifying the confiscation of the firearm. Even if there were in the circumstances of this case I see no reason why this should be done. Accordingly the order for the confiscation of the firearm is revoked and it is to be retuned to the appellant”.

Defence of property – Excessive use of force.

See case No. 55.

Mistakes of fact and law – Grounds for mitigation in sentencing where not defence to charge.

See case No. 68.

EVIDENCE

Identification of accused by complainant – Identification of accused – By complainant – identification parade desirable where offence occurred at night.

See case No. 59.

Judicial notice – Notice taken that Uganda currency is not prohibited in Tanzania.

See case No. 72.

FORGERY, COUNTERFEITING AND RELATED OFFENCES.

Unauthorized document – Intent to defraud, rather than intent to steal, required.

See case No. 75.

HOMICIDE

Manslaughter – Shooting to prevent escape of goat thief. Criminal responsibility – Defence of property – Excessive use of force.

(1969) H.C.D.

- 49 –

R. v. Daudi Mtwe, Crim. Sass. 136-Dodoma-68, 1/10/68, Duff J.

The deceased and two others had stolen a goat from a herd belonging to the family of the accused. They were discovered roasting the goat by two boys who had been guarding the herd. The boys recognised one of these men. One of the boys slipped away to fetch the accused told the others to wait behind with a dog while he went ahead. Soon they heard a shot, and ran up to find the accused standing some 35 yards away from the body of the deceased. In an extrajudicial statement, the accused said that when he had approached, one of the thieves had run off. The other two began to run off also; he called upon them to stop, then fired with his shotgun at the legs of one of them, the bullet unfortunately striking him in the head, killing him. In Court, accused said that he had called upon the thieves three times to stop before firing.

Held: The accused reasonably suspended that the three persons he saw roasting the goat had feloniously stolen it from his family. He had a right to arrest them under s. 32(1), Criminal Procedure Code; and under s. 19(2), he could use “all means necessary to affect the arrest of person attempting to evade arrest while under section 19 of the Penal Code question arises whether the degree of force used was reasonable, have been committed …. Theft of cattle is far too prevalent an offence in this country and the legislature has seen fit to provide for a minimum sentence which is severe but even so it cannot be accepted that the use of a lethal weapon – a gun – was justified in the circumstances …. More particularly when the accused had identified two of the suspected thieves”. Given that shotgun pellets spread after leaving the gun, it “may well be the truth” that accused aimed for the legs of the deceased. “It must be accepted, in the absence of any reliable evidence to the contrary, that the accused honestly accepted that he was entitled to fire as he did and had no appreciation that the method he adopted was excessive”. Nothing establishes that he intended to do more harm than was necessary to apprehend the suspects. Accused convicted of manslaughter; bearing in mind his poverty and “obvious anxiety to protect his little property,” and also the fact that he has now been in custody for 9¹/₂ months, sentence of 2 years imprisonment imposed.

Written threat to murder – Absolute discharge appropriate where complainant seduce wife of accused.

See case No. 64.

Written threat to murder – Conditional discharge appropriate where accused is young; repentant and closely related to complainant.

See case No. 53.

PARTIES TO OFFENCES ………..

(1969) H.C.D.

- 50 –

PARTIES TO OFFENCES

Common intent – Liability of each participant for crimes committed by others in furtherance of common intent.

See case No. 72.

PROCEDURE

Particulars of offence – Particulars of charge of forgery need not contained allegation of fraudulent intent.

Shabani Hida @ Omari v. R., Crim. App. 475-D-68, 28/1/69, Hamlyn J.

The appellant was convicted of forgery, c/s 333, Penal Code, (three counts) and of stealing by a person employed in the public service, c/s 265 and 270, Penal Code (three counts). The charges for forgery did not contain an allegation of a fraudulent intent.

Held: There is a note upon the record that the “particulars of offence” do not refer to any intent to defraud or deceive. That is perfectly correct, but I do not think that such omission necessarily invalidates the charge on these counts … now the definition of forgery is given in section 333 of the Penal Code thus:- “333. Forgery is the making of a false document with intent to defraud or to deceive”. And the appellant, in the particulars of offence, had before him the details set out thus: - “The person charged on the – day of – 1968 at Bereke Village ….. did forge a payment voucher No. – By writing total amount paid Shs. – purporting to be what in fact it is not”. The distinction here arises I think by the use of the expression “did forge” and that clearly refers back to section 333, which itself contains a requirement that there be one intent to deceive or defraud. That intent is (at it were) a “built-in requirement”, in other that the offence be forgery at all. The matter seems to be very similar to information filed for offences such as murder, where the section is stated and the particulars merely set out:-“AB on the – day of –in the – region murder CD”. There is no necessity to set out in the particulars of the offence that the act was committed “of malice aforethought” or that the act or omission was unlawful; these details are already contained in the definition of murder in section 196. Similarly in charges of forgery, once the word “forged” has been included in the particulars, it is unnecessary to include the intent, for that is already a constituent of forgery. While, as I say, I do not consider it necessary to include in the particulars the intent, I think it is desirable to do so, for the definition o forgery contains the alternative intent of “to defraud or deceive”. These intents of course differ and the accused should have the fullest information before him as to which particular intent is averred. But such omission is not in my view fatal to the proceedings, nor can I hold it be so in the instant case”. Appeal dismissed.

Re-trial ……

(1969) H.C.D.

- 51 –

57. Re-trial – Appropriate where case file is lost following conviction and notice of appeal.

Shabani Matondo v. R., Crim. App. 926-M-68, 22/1/69, Seaton J.

The applicant was convicted on unlawful possession of diamonds c/s 3(1) of cap. 129, the Diamond Industry Protection Ordinance. He was sentenced to 18 months imprisonment. After notice of appeal had been given, before copies of the record of proceedings and judgment could be obtained, the case file was lost. The applicant then requested that the conviction and sentence in the original criminal case be quashed and set aside and a re-trial ordered.

Held: (1) The applicant’s request is in accordance with the procedure followed in Haiderali Lakhoo Zaver (1952) E.A. 244. “In that case the trial Court record disappeared after the appeal had been filed and before hearing of the appeal. The High Curt of Uganda ordered that the finding and sentence appealed from be reversed and that the appellant be retried by the Resident Magistrate at the earliest opportunity, upon the same charges as were preferred at the previous trial. They also directed that the appellant be rearrested on the appropriate charge. The East African Court of Appeal upheld this order on appeal. With respect, I would agree with the learned State Attorney that the case cited is sufficiently analogous to provide a guide to the procedure that should be followed in the present case”.

(2) Conviction and sentence quashed; applicant to be re-arrested and retried.

58 Substitution of conviction – Accused charged with affray cannot be convicted of brawling.

Sangija Kanyambo and another v. R., Crim. Rev. 63-M-68, 6/11/68, Seaton J.

Accused was charge with affray c/s 87, Penal Code, and convicted of brawling c/s 89(1) (b), Penal Code.

Held: “Both offences under Sections 87 and 89(1) (b) P.C are misdemeanors calling for a maximum of 6 moths imprisonment. I cannot find the law which lies down that a person charged under P.C. Section 87 can be convicted under P.C. Section 89(1) (b) ……. I feel that a primary court properly directed by law could not enter conviction under section 89(1) (b) P.C. for a charge lay under Section 87 P.C. This is no where in Section 181-189 Cap. 20 or Section 3, Third Schedule (Primary Courts Criminal Procedure Code), Cap. 537. I accordingly quash the conviction and set aside the sentence …….”

Substitution ……

(1969) H.C.D.

- 52 –

59 Substitution of conviction – Causing grievous bodily harm not minor offence to robbery.

John Opio an another v. R., Crim. App. 889, 897-M-68, 3/2/69, Mustafa J.

Appellant were charged with robbery c/s 285 and 286, Penal Code, but were instead convicted of assault “occasioning grievous bodily harm” c/s 225, Penal Code because the magistrate found appellants did not steal from complainant. Each appellant was sentenced to two years imprisonment.

Complainant has alleged while he was walking with his wife at night he was suddenly set upon by two persons who he alleged were the appellants. Complainant has stated that he was semi-conscious he felt somebody searching him. He says he had Shs. 520/- in his pocket and this sum of money was stolen from him by his assailants. He said it was night but there was moonlight and he could “see the appearances of his assailants clearly”.

Held; (1) “Learned State Attorney rightly pointed out …… there should have been at least an identification parade for the complainant to identify his assailants. In the absence of any identification parade learned state Attorney says the evidence of identification of the appellants as the assailants of the complainant is very weak.

Appellants have denied that they assaulted the complainant and in view of such a denial it is difficult to say that the prosecution has adduced sufficient evidence to identify the appellants as complainant’s assailants. In view of this lack of proper identification the appeals of the appellants would have to be allowed”.

(2) “I may also mention that I very much doubt if the trial magistrate was entitled to invoke the provisions of section 181 of the Criminal Procedure Code in conviction appellants of assault “occasioning grievous bodily harm” contrary to section 225 of the Penal Code when appellants were charged with robbery. I do not think the offence c/s 225 is a “minor” offence in terms of s. 181 of the Criminal Procedure Code ….. it will be seen that it is not necessary to do grievous harm to any person unlawfully in order to commit robbery. The offence of robbery is committed ‘if a person uses or threatens to use actual violence in order to obtain or to retain the thing stolen’. I do not think therefore an offence c/s 225 is a minor offence to robbery in terms of s. 181 of the Criminal Procedure Code. It may be assault c/s 240 Penal Code could be such a “minor” offence but I do not have to decide on this point”. Appeal allowed.

PUBLIC AUTHORITY (OFFENCES AGAINST)

Contempt of court – Act of disrespect must be intentional.

D. M. Patel v. R., Crim. App. 857-M-68, 31/1/69, Seaton J.

The appellant ………

(1969) H.C.D.

- 53 –

The appellant was convicted of contempt of court c/s 114 (1), Penal Code. The facts alleged against the appellant were that in the course of judicial proceedings, he showed disrespect to the court by speaking without its permission. It appears that the appellant old a witness in attendance at the court “Wewe shahidi kaa huku” (“You witness, come and sit over here”). Where the charge was read and explained to the appellant, he admitted that he had spoken without asking the permission of the court but said he did to know he had to do so. The appellant also admitted that he was wrong in not consulting his advocate, who was present, before communicating with his witness.

Held; It is clear from his judgment “that the learned magistrate did not direct his mind to the question of mens rea. This appears to me to have been misdirection. Section 114 (1) of the Penal Code makes it an offence if any person “(a) within the premises in which any judicial proceeding is being had …. Shows disrespect, in speech or manner, to or with reference to such proceeding, or any person before whom such proceeding is being had or taken”. The emphasis in that subsection seems to lie on the intention of the accused in doing the act complained of. This emphasis may not be so clear in the Common Law offence of contempt of court which is defined in Archbold (at par 3471, 35th Edn) ……. But learned State Attorney has conceded that intentional disrespect is an essential ingredient of the statutory offence in Tanganyika and I think this is clearly shown if subsection (1) of s.114 is read as a whole including subsection (1)(i), which makes it a crime if any person: “commits any other act of intentional disrespect to any judicial proceeding, or to any person before whom such proceeding is being had or taken’ (underlining added).

PUBLIC ORDER (OFFENCES AGAINST)

Brawling – Conviction for brawling cannot be had on charge of affray.

See case No. 58.

ROAD TRAFFIC

Carrying excess passengers – Fine more appropriate than imprisonment.

R. v. Juma Musho, Inspection Note, Crim. Case 486-TABORA-68, 17/1/69, Bramble J.

The accused ……….

(1969) H.C.D.

- 54 –

The accused was convicted on his own plea of carrying excess passengers’ c/s 34(e) and 70, Traffic Ordinance and sentenced to two months imprisonment. He was a first offender.

Noted: “Where the legislature has given an alternative of a fine for certain minor offences it would seem more appropriate to inflict this type of punishment rather than peremptory imprisonment. Of course, where there is a continuous flagrant disregard for the law imprisonment would be the only answer. The trial magistrate in this case acted on the basis that the accused showed no respect for the dignity of human beings and that the condition which was permitted was fit for pigs. It may well have been that with the shortage of transport facilities this accused may have though sympathy carried more passengers than he as permitted to carry. Since the period of imprisonment has almost expired no purpose will be served by revising the sentence but I hope that my comments will serve as a guide to punishment is similar cases”.

59 Driving motor vehicle without insurance – Owner of vehicle rather than driver should be prosecuted.

John s/o Mhanze, Crim. Rev. 13-D-69, 1/2/69, Duff J.

The accused, a driver, was convicted, inter alia of driving a motor vehicle without insurance c/s 4 (1) and (2) Motor Vehicle (Insurance) Ordinance, Cap. 169. An order of disqualification followed, the period fixed being one of twelve months in addition to a fine of Shs. 50/-.

Held: “It has been stated on many occasions that it is undesirable that ht police should charge a driver who could not be expected to an did not know of his liability when a vehicle was uninsured against third party risks. The owner and employer can always be presumed to know the law as to third party insurance and he is the person who should invariably be prosecuted and who should, if fund guilty, be dealt with adequately … it requires little imagination to envisage the likely result of a driver telling his employer that he wished to see the third party insurance policy before he could drive the vehicle, even in these days when the position of an employee is protected by legislation. In all the circumstances I don not consider that it was appropriate to make a disqualification order, and in this connection I refer the learned magistrate to the decision in R. v. John Gedeon and another, (1957) E.A. 664. The disqualification is therefore set aside and the driving licence is to be returned to the accused forthwith”.

63. Special reasons for not suspending licence – Accused acted on orders of superior officer.

Eli Sambila v. R., Crim. App. 745-D-68, 14/2/69, Georges C.J.

The appellant ….

(1969) H.C.D.

- 55 –

The appellant was charged with driving a motor vehicle while under the influence of drink, c/s 49(1) and section 70, Traffic Ordinance,. He pleaded guilty and was fined Shs. 60/- or one month’s imprisonment. His driving licence was also suspended for twelve months. He was asked in the court below whether he had any special circumstances to advance way his licence should not be suspended. His reply was that he had nothing to say. He now appeals and stated that there were indeed special circumstances.

Held: The appellant stated “that after work that day he had gone for a drink at the pombe shop. After he had had a few drinks, he was summoned by his superior officer and ordered to drive to Mbeya. It was then about 5.00 p.m. He had had some drinks, but he felt that he was able to go, and he feared that if he refused to obey the order, he would have lost his job, as his superior officer was clearly aware when he issued the order that the appellant had been drinking. In the circumstances of this case, this does not appear to be an unreasonable fear …. These are rather unusual facts, which I think can be called special circumstances relating to the offence rather than the offender. Appeal allowed and order suspending licence revoked.

SENTENCE

64. Absolute discharge – Appropriate where accused is convicted of written threats to murder his wife’s secuder.

R. v. Abel s/o Mtiana. Crim. Sass. 57-Dodoma-68, 24/9/68, Duff J.

The accused was charged with written threats to murder c/s 214, Penal Code. the accused is a married man employed by the Ministry of Health, his work entailing a good deal of travel away from home. On one of his journies it is believed that his wife committed adultery with complainant in consequence of which she conceived, a miscarriage, however ensuing. The wife confessed to her husband and named the complainant as her seducer, the accused’s son also confirming the illicit association. The accused then wrote a letter which contained a threat to kill.

Held: Accused convicted on his own plea. “This is one of the saddest cases that it has been my lot to hear. The accused was aware that this wife was unfaithful and in an attempt to end her adulterous association with the complainant wrote a letter to the latter threatening to kill him, it being accepted that there was nothing sinister in the letter. Elsewhere possibly the male adulterer would have been horse whipped by the injured husband and the latter would have been applauded. The accused, in this case has not alone spent a fortnight in remand prison but has not been employed since he was charged, it not being clear whether he was suspended from his duties. …. This is a case eminently suitable for invoking the provisions of Section 38(1) of the Penal Code; the accused is discharged absolutely”.

65. Assault ………

(1969) H.C.D.

- 56 –

65. Assault causing actual bodily harm – Sentence of two years appropriate in circumstances.

Omari s/o Athumani and another, Crim. App. 541, 612-D-68 20/11/68, Biron J.

The two appellants were together convicted of assault causing actual bodily harm c/s 241, Penal Code, and they were each sentenced to imprisonment for two years and ordered to pay Shs. 50/- as compensation to the complainant. The two appellants, who are brothers, squabbled with their sister over fifty cents which she owed then, during a pombe session in her husband’s house. The woman’s husband, the complainant, annoyed by their clamour, ordered then all out of the house. He then assaulted his wife, felling her, and she, apparently out of pique, left the house and joined her brother. Her husband followed her, and he was then assaulted by her two brothers.

Held: There is no merit in the appeals, as remarked by the learned judge who admitted them only on account of the sentences, which, in view of the injuries sustained by the complainant a fractured skull, apparently resulting impartial paralysis – required consideration as to their adequacy. However, in favour of the appellants, it must be borne in mind that they went to the assistance of their sister, who had been assaulted by her husband. All were in drink, if not drunk, and the weapons used by the appellants were apparently picked up on the spot, not with any premeditation. And there is a further material factor which is worthy of consideration. The two appellants first appeared in court on the 21^st of September 1967. There then followed a number of adjournments with the appellants in custody until the 13^th of October, when they were released on bail. After more adjournments. ….. the trial finally commenced on the 8^th of July of this year, that is, ten months and twenty – four adjournments after the appellants first appeared in court. Although some of the delays were occasioned by the appellants having jumped bail, most of the delay was through no fault of their own, and no reason has been advanced, nor does any suggest itself, for this unconscionable delay.

In all the circumstances I am very far from persuaded that this court would be justified in interfering with the sentences imposed”. Appeals dismissed and sentences confirmed.

Conditional discharge – Appropriate on conviction for written threat to murder where accused is young, repentant, and closely related to complainant.

See case No. 53.

Consecutive sentences for offences arising from one transaction – Not justified in absence of exceptional circumstances.

Samson s/o John, Crim. App. 757-D-68, 22/1/69, Biron J.

The appellant ………

(1969) H.C.D.

- 57 –

The appellant was convicted on his own plus of housebreaking and stealing, c/s 294(1) and 265, Penal Code, and was sentenced respectively to imprisonment for four years and one year, to run consecutively to each other and to the statutory twenty four strokes corporal punishment, under the Minimum Sentences Act, 1963. During the absence of the complainant at work, his house was broken into and there were stolen therefrom a number and variety of articles to the total value of Shs. 2,221/-.

The appellant, who was eventually arrested and charged, pleaded guilty to the charges, and admitted to a rather long string of previous convictions, which included five for theft and a twin of housebreaking and stealing and office breaking and stealing therefrom. Appeal from sentence only.

Held: “As indicated, the appellant has a bad record for dis-honesty, though in fairness it should be noted that the last two convictions for housebreaking and stealing and office breaking and stealing …. Were all subsequent to the commission of the offences in this instant case. Therefore they should not be taken into consideration insofar as this case is concerned. Even so, having regard to the prevalence of these offences and the previous convictions for theft for the last two of which the appellant was awarded sentences of two years and two and a half years imprisonment, this court would not, to my mind, be justified in interfering with the sentence of four years imposed for housebreaking. However, no reason has been given by the magistrate, nor does any suggest itself, for his ordering the sentences to run consecutively to, and not, as is the usual and well-nigh universal practice in the absence of special circumstances, concurrently with, each other. Certainly there are no exceptional circumstances here which could possibly justify a departure from the usual practice. The order that the sentences are to run consecutively to each other is accordingly set aside, and there is substitute an order that they are to run concurrently with each other …. Making an aggregate of imprisonment for your years”.

Driving motor vehicle without insurance – Sentence – Desirability of punishing owner of vehicle rather than driver

See case No. 62.

Fines – More appropriate than imprisonment for minor violation of Traffic Ordinance.

See case No. 61.

Minimum Sentences act – “Special circumstances” – Dependency of relatives may be considered.

67 minimum ……..

67. Minimum Sentences Act – Special circumstances – Effect of imprisonment on wife of accused not special circumstance.

Felician s/o Zaburuza v. R. Crim. App. 769-D-68, 1/2/69, Georges C. J.

This is an appeal against sentence only. The appellant pleaded guilty to four counts for offences against the Penal Code – two of forgery c/s 337 and two of stealing as a public servant c/s 270 and 265. In all he stole 48/-. He was an Executive Officer in the Agricultural Division aged 38 years. He was a first offender and the sum stolen was less than Shs. 100/-. He was called upon to put forward any special circumstances. He said that he had committed the offences through ignorance, that he had a clear record of 8 years service with the Government and that he had a wife and 3 young children. The district magistrate refused to exercise his discretion to impose less than the minimum sentence.

Held: (1) The Magistrate has not acted “on any manifestly erroneous principle which would justify an interference with his discretion by this Court”.

(2) “In his petition of appeal the appellant alleged that his wife has become mentally unbalanced because of his imprisonment and his children who were in her care have been left untended. If this is indeed so then I can only express sympathy but he law has been passed and must be enforced. If the appellant can satisfy His Excellency the President that this calamity has befallen him since sentence it may be that His Excellency may be minded to exercise the right of clemency vested by law in him”. Appeal dismissed and sentence affirmed.

68. Mistakes of fact and of law – Grounds for mitigation.

R. v. Ayub Issa and two others, Crim. Rev. 5-M-69, 14/2/69, Seaton J.

The three accused were convicted on their own pleas of unlawful wounding c/ss 288(1), Penal Code, and sentenced to 2¹/₂ years imprisonment each. One night at about 10 o’clock the complainant and another man passed through a homestead where the three accused were sitting. Accusing the complainant of being a chief, the three accused struck him with sticks and knives causing a cut wound on his left forearm, a rapture of his left hand and both of his legs to be broken.

Held: “The attack was described by the learned magistrate as a vicious one and I do not doubt he was correct. Nevertheless, the accused seem to have acted on the belief – mistaken as it turned out to be – that the complainant was a thief. Such a belief would not excuse their conduct and the beating of suspected thieves has been repeatedly condemned by this Court. Nevertheless, it does deprive the accuseds’ conduct of some elements of maliciousness …… Bearing in mind that the maximum penalty for this offence is three yeas, I am of the view that in the circumstances, 21/2 years’ imprisonment is excessive. I accordingly confirm the sentences to the extent of 18 moths’ imprisonment in respect of each accused”.

69 Principles ……….

(1969) H.C.D.

- 59 –

69. Principles of punishment – Higher sentence justified for offences against public body not covered by Minimum Sentences Act – Accused’s good record and refunding of money stolen mitigating circumstances – Accused’s loss of job and contributions to Provident Fund not mitigating circumstances – Accused’s large number of dependents doubtful mitigating circumstance.

Peter Lugayula v. R. Crim. App. 690-D-68, 14/2/69, Georges C. J.

The appellant pleaded guilty to three charges under the Penal Code: one of forgery, c/ss 335 and 337; one of fraudulent false accounting, c/s 317; and one of stealing by clerks and servants, c/s 265 and 271. he was an employee of the National Agriculture Co. Ltd., and what he did was to forge the duplicate of a receipt for Shs. 5,584/- by altering it to Shs. 5,184/-, and then pocketing the difference. He was sentenced to 24 months imprisonment on the first count, 24 months on the second count and 36 months on the third count, all to run concurrently.

Held: “The sharp issue of principle or decision in this case is whether or not one should take into account in a case of theft the fact that the property belongs to a parastatal organization and is in fact, if not in law, Government property, and impose a stiffer sentence more or less in line with the sentences prescribed under the Minimum Sentences act; or whether that should be ignored and the theft treated as theft from some owner of private property. That really is clearly the issue. What motivated the magistrate was the fact that, though parastatal organizations are not covered by the Minimum Sentences Act, in fact they are organizations which deal with public funds and which exist to increase and guard public property. The magistrate felt that offense against corporations of this sort were prevalent and merited some form of special treatment, and for that reason he imposed the sentences passed in this case. I would, basically, agree with this approach. I have noted the cases ….. – Rep. v. Joseph Michael: Jumanne Dumwalla v. Rep. – neither of which, unfortunately, has been reported and must be referred to in the original case files. I do not regard these cases …… as precedents – they are basically guides. But I do think that when the learned magistrate directs himself as to the prevalence of the offence and notes that the employer is not covered by the Minimum Sentences Act, but is in fact a public body, financed by public funds, then he is entitled to impose a sentence somewhat higher than he would have imposed had these considerations not been present. I do not think the principles on which the magistrate acted are basically wrong, but I do think that the result at which he arrived may be criticized in that even if this matter had come under the Minimum Sentences Act, there would seem to be no reason in this case for imposing a sentence of imprisonment higher than the minimum prescribed. I have noted the circumstance of this case which has been called mitigating – the fact that the appellant is a first offender; and that he would lose his job and also his contributions to the Provident Fund. As regards the second circumstance. – that he would lose his job and his contributions to the Provident Fund – I do not think these should be regarded

(1969) H.C.D.

- 60 –

as forms of punishment which should dispose a court to look more leniently on the offence. The fact that the appellant made arrangements to refund the money is, I think, relevant. It is also said in mitigation that the appellant has a large number of dependents. Normally, I would not place much emphasis on this, because it is a matter which should have been in the appellant’s mind before the commission of the offence. I think there may, at some future date, be much argument as to whether or not the number of dependents is itself a special circumstance under the Minimum Sentences Act and it may well be strongly argued that it is not. I do not think the learned magistrate took these mitigating factors into consideration – in particular, as I say, the fact that the appellant was a first offender, and that he had made arrangements for the refund of the money. In that way, I think he has erred, although the basic principles on which he acted were correct. Taking into account the mitigating circumstances, I would, therefore, vary the sentence to – 12 months on the first count; 12 months on the second count; and 18 months on the third count; all the terms to run concurrently”.

(Editor’s note: The two cases referred to in this judgment, Joseph Michael v. R. Crim. Rev. (-)-D-68, and Jumanne Dummwalla v. R. Crim. App. 399-D-68, have both been digested and appear in 2 H.C.D. n. 435 and 437, October 1968. It was held therein that neither the National Development Corporation nor the National Development Credit Agency were part of the public service and so were not covered by the Minimum Sentence Act. In both cases, sentences of nine months imprisonment were awarded for theft by servant from the above-mentioned organizations).

Theft from person – Sentence of three years manifestly excessive in circumstances.

Rashid s/o Abdallah, Crim. App. 551-D-68, 6/11/68, Biron J.

The appellant was convicted of stealing from the person c/s 269(a) Penal Code and he was sentenced to imprisonment for three years. Evidence was given by the complainant to the effect that as he was holding out a Shs. 10/- not which was being changed into smaller denominations, by an employee in a hotel, the appellant snatched the not out of his hand, demanding the return of his money and the appellant threatened to kill him if he persisted in his demands. The complainant duly reported the mater to the police. In sentencing the appellant snatched the not out of his hand, pocketed it, and walked out of the hotel. He followed him demanding the return of his money and the appellant threatened to kill him if he persisted in his demands. The complainant duly reported the matter to the police. In sentencing the appellant, the magistrate stated: - “You have a shocking recorded. It appears that you have in all the sixteen previous convictions been treated with leniency. You however seem not to appreciate the leniency accorded to you. Hardly eight months have passed since you last left prison on a charge of stealing. Among the sixteen previous convictions eight are similar to the present conviction, and all of them are offences involving moral turpitude ….. I am certain that prison sentence does little to reform you; on the contrary it may have added to your criminality. However to protect the public from men of your nasty and dangerous behaviour have no alternative but to keep you behind iron-bars”.

Held ………..

(1969) H.C.D.

- 61 –

Held: “With respect, I fully agree with the learned magistrate that the appellant is apparently a manace from whom the public needs to be protected. Even so, the particular facts and circumstances of the offence itself cannot be disregarded, and I thin there is considerable substance in the learned magistrate’s remark that the appellant does not apparently appreciate what he had been doing. It is also pertinent to not that all the relevant previous convictions were for petty theft, attracting very light sentences, in one case as low as imprisonment for seven days and the longest term of imprisonment the appellant ever received was twelve months. In all the circumstances, I agree, with respect, with learned State Attorney that the sentence imposed is manifestly excessive and cannot be sustained. ……. I consider that, taking all the relevant factors into consideration, the justice of the case would be met by the imposition of a sentence of imprisonment for one year”.

Unlawful wounding – Sentence of nine months too severe for offence involving excessive use of force in defence of property – Racial considerations irrelevant.

See case No. 54.

SOURCES OF LAW

English law – Governs use of force in defence of property – Apparently no local law applicable.

See case No. 54.

THEFT AND RELATED OFFENCES

Claim of right – Convictions for burglary and theft improper where accused was owed wages by complainant and thought he had right to take his clothes – Youth and good record of accused should be considered in assessing accused’s explanation

Mohamed Hassan v. R., Crim. App. 348-D-68, 6/11/68, Biron J.

The appellant was convicted of burglary and stealing c/s 294(1) and 265, Penal Code and was sentenced to imprisonment for two years and six months respectively, to run concurrently, and to the statutory twenty four stokes corporal punishment. The appellant had previously been employed as a house servant by the complainant. He admitted that he had taken the clothes from the complainant’s room by opening the widow and “pole-finishing” then out. He justified this by declaring that the complainant had dismissed him from his employment owing him three moth’s wages, and, as the complainant had failed to pay the wages due to him, despite repeated requests, he decided to take his clothes.

Held: ………..

(1969) H.C.D.

- 62 –

Held: “If the appellant’s story is true, it would constitute a defence to the charge, as the appellant may well have thought he was acting under a claim of right. Although it was never put to the complainant that he owed the appellant any wages, it must be borne in mind that the appellant is but a youth ……. That could well account for his failure to put his case to the complainant in cross examination, and likewise for his taking the complainant’s clothes, if in fact the complainant owed him wages which he refused to pay. The learned magistrate in his judgment has not directed his mind to this aspect of the case as to whether the appellant was acting under a claim of right. Had he done so, he might will have thought that there was a reasonable doubt whether he was in fact so acting. In all the circumstances of the case, I consider it would be most unsafe to uphold the conviction. It is not irrelevant, I think, to not, though this would not be known to the magistrate, that his was the appellant’s first appearance in court, and a good record is an asset which can be used to weight the scales in an accused’s favour, particularly so in a case of this nature. The appeal is accordingly allowed, the conviction is quashed, and the sentence imposed thereon is set aside”.

72. Robbery – Participation of more than one person in theft does not constitute the theft a robbery. Parties to offences – Common intent. Evidence – Judicial notice taken that Uganda currency is not prohibited in Tanzania.

Juma Mkurasi v. R., Crim. App. 627-M-68, 15/11/68, Bramble J.

Five people arrived in Bukoba, debarking from the S.S. “Victoria”, and went to a bus service booking station to by tickets for Ngara. Being informed that the bus would leave the next day; they were attracted by an offer by a man, later identified at the accused, to take them to a bus which was leaving that night from a place some distance away. He took them in two groups to a dark place in his small car. There, two other men appeared claiming to be policemen looking for Uganda currency, which they said was prohibited in Tanzania. These, two other men appeared claiming to be policemen looking for Uganda currency, which they said was prohibited in Tanzania. These men took money from the passenger and gave it to the man identified as the accused. The passengers, believing that they were policemen, allowed the search and seizure of the money; they subsequently went to a house with the policemen, who went off. The accused was convicted of robber, the magistrate construing s. 285 of the Penal Code to mean that “when more than one person commit the offence, as here, the use of actual force is not necessary. Their being more than one is enough to create the fear of such a nature intended to overpower the party robbed”.

Held: (1) Section 285 of the Penal Code merely provides for greater punishment where a robbery is committed by more than one person acting together. The use of actual force, or the threat of immediate actual force, is nonetheless a necessary element of the offence.

(2) “The evidence clearly discloses a common intent between the accused and the other men and each is responsible for what was done in furtherance of that intent.

Assuming ………

(1969) H.C.D.

- 63 –

Assuming that the two unknown men were policemen they can be said to have committed an unlawful trespass …. In that judicial notice can be taken of the fact that Uganda Currency is not prohibited in Tanzania. They ….. Were not acting in the course of their duties. The evidence therefore supports a case of stealing”. Conviction for stealing substituted.

Theft by agent – Accused properly convicted where he appropriated money entrusted to him to change into new currency.

Levi s/o Nyoro v. R., Crim. App. 672-M-68, 22/11/68, Seaton J.

The appellant was convicted on his own plea of three counts of theft by an agent c/s 265 and 273(b), Penal Code.

The appellant, who was an assistant divisional executive officer, received sums of money totaling Shs. 1,355/60 from three persons in order to change them into new currency. But instead of changing the money he uses it for his own purposes.

Held: “Learned advocate for the appellant has argued strongly that ….. the facts as outlined by the prosecution did not disclose the offence of stealing or any offence in law …. With respect to the learned advocate for the appellant, I can find no substance in any of these grounds. The combined effect of s. 265 and s. 273(b) of the Penal Code is to make it an offence it any property which has been entrusted to another for him to retain in safe custody or to apply, pay or deliver for any purpose or to any person the same or any part thereof or any proceeds thereof, is stolen, the maximum penalty for which is imprisonment for seven years. Section 260 of the Penal Code provides inter alia that when a person receives any money with a direction that such money shall be applied to any purpose or paid to any person specified in the direction, such money is deemed to be the property of the person from whom it was received until the direction has been complied with. The appellant received various sums of money from the respective complainants with a direction has been complied with. The appellant received various sums of money from the respective complainants with a direction to change them into new currency. He did not do so. His acts fall within the definition of theft as defined by section 258(c) of the Penal Code; he converted the money to his own use although he may have intended some day to repay the amounts to the respective owners which incidentally to date he has not yet done”. Appeal dismissed.

Theft by public servant – Conviction improper where public servant appropriated money merely en route to the government which it was not his duty to receive.

Issah Nkalinga v. R., Crim. App. 618-D-68, 15/11/68, Hamlyn J.

The appellant …………..

(1969) H.C.D.

- 64 –

The appellant was charged with and convicted of an offence of stealing by a public servant, c/s 265 and 270, Penal Code. He was sentenced under the Minimum Sentences Act to two years imprisonment and to twenty-four strokes. The complainant had obtained a loan of Shs. 2,400/- from the National Development Credit Agency and was re-paying such loan by instalments from time to time. On 26 January 1966, he went to the Agricultural Office, Dodoma with a sum of Shs. 500/- as a further installment. There he found the appellant, who is an Assistant Field Officer in the Agricultural Department at Dodoma. The appellant took the complainant to the Revenue Office, but he time being about 12.30 p.m. that office was shut. Then the appellant persuaded the complainant to leave the Shs. 500/- with him (which he did) and the later was handed a written acknowledgement of receipt. The appellant then appropriated the money for his own purposes.

Held: “In order to bring the matter within the ambit of [s. 270, Penal Code], the prosecution must prove the offender to be in the public service and either that the property was that of government, or else that the property came into the possession of the offender by virtue of his employment. Clearly the property was not at that time that of government, even though that is what the charge alleges. The money was the property of the complainant and he had collected it (probably with much difficulty) in order to re-pay a part of his loan. The fact that it was (as it were) enroute to government is neither here nor there ….. Did the property come “into the possession of the offender by virtue of his employment” then? I think that this certainly cannot be the case. The complainant merely paid the money to this Assistant Field Officer who was standing about at the Agricultural Officer. The fact that they both went off to the Revenue office to pay in the money (which office they found closed) seems to indicate that he proper recipient of the cash was a Revenue Officer – would indicate that his duties law in the realm of practical agriculture in the field rather than in the more sedentary work of a receiver of government dues …. If it was the duty of the appellant to receive monies in repayment of loans, then it would be easy enough for the prosecution to say so and to lead evidence to that effect. There can be no guess-word in the matter and the benefit of any doubt in regard to this (as indeed in respect to any other circumstance) must go to the accused.” Conviction quashed and conviction for simple theft c/s 265, Penal Code, substituted. Sentence altered to nine months imprisonment without corporal punishment.

Theft from person – sentence of three years manifestly excessive in circumstances.

See case No. 70.

75.Unauthorised ………

(1969) H.C.D.

- 65 –

75. Unauthorised making of documents – intent to defraud and intent to steal distinguished. False pretences – Stealing distinguished. Sentence – Dependency of relatives is “special circumstances” under Minimum Sentences Act.

Shabani Mbunda v. R., Crim. App. 466-D-68, 23/10/68, Biron J.

The accused, a clerk for the Minister of Education, prepared and signed three purchase orders for petrol and delivered all of them at various times to a local merchant. He subsequently picked up one of the orders, but never called for the others. He was authorized to make out such orders for his superiors’ signatures, but not to sign them himself. The accused was convicted of stealing the petrol obtained, stealing the purchase order forms (which he had obtained with-out authority from the District Education office while on leave), and of attempting to steal the petrol not called for. He was acquitted on charges of making a false document without authority and uttering a false document. He was sentenced to two years and 24 strokes on the stealing convictions, and to six months for attempted stealing, all sentences concurrent. The accused was a first offender

Held: (1) The acquittals were proper. The present charges seem to be the first of their kind in the courts of Tanzania. “I am ….. inclined to agree …… that if the making of these local purchase orders was with intent to steal, that would not constitute the offence. …….” If the other charges had been for obtaining and attempting to obtain by false pretences, the gist of the charges relating to the documents would have been “intent to defraud”, which is required for a conviction of making or uttering false documents.

(2) The stealing charges involving the petrol should have been charges of obtaining and attempting to obtain by false pretences, the “property in the petrol” having been obtained or sought with the merchant’s consent, fraudulently secured. Conviction substituted accordingly.

(3) Only the conviction for stealing Government purchase orders remains, among the scheduled-offence convictions. The amount is less than Shs. 100/-, and accused is a first offender. The record contains sufficient material for the High Court to consider “special circumstance, including accused’s statement that ‘he had a wife and two children, as well as his brothers, dependent on him……” Sentence reduced to one year on each conviction, to run concurrently.

(1966) H.C.D. ZNZ.

- 66 –

CIVIL CASES

CONFLICT OF LAWS

Gifts and distribution of estates – Islamic law governs where the deceased was a Muslim.

See case No. 80.

COSTS AND FEES

76. Rules of Court taxation scales – Scales are not absolute – Considerations in taxing costs outlined.

Rourafric Trading Ltd. v. Kassmaali G. Peera, Civ. Case 34-Z-64, 9/10/65, M.Y. Kissa, Registrar.

This was a dispute as to taxation of costs in a case in which not application for leave to defend had been made, and no order for written statement of defence issued. Defence counsel, however, argued for fees based on the scales for contested suits (Rules of Court, L.N. 60 of 1963, p. 225) since, as he claimed, the case had involved a certain amount of preparation of the law.

Ruled: The scale for uncontested suits 9 Rules of Court, p. 224) will be applied, since there was not enough work involved for counsel to justify the application of the higher scale. However, it should be noted that the scales are not “binding and absolute in their entirety on a taxing officer. The general principle underlying all cases of taxation is that consideration must always be given to the nature of the claim, the word done by the respective parties, and all other circumstances rightly connected with the case.”

(Editors’ note: The registrar’s decision in the case of Amirali ali Abdulla Janmohamed V. Mohamedhussein R. Bhaloo, Civ. Case 30-Z-65, 25/6/66, is in accord as to taxation of advocates’ fees.)

EVIDENCE

Documentary evidence – Report of customs officer as to condition of goods, including remarks on reverse side of report form, admissible.

See case No. 81.

77 Witnesses – Unsworn testimony inadmissible – Re-hearing ordered because of cumulative effect of this and other irregularities.

Abudu Ame Ame Shirazi v. Hadija binti Hemed Shirazia, Civ. App. 1-Z-65, 14/1/65, Saidi Ag. C. J.

The plaintiff sued his wife, on grounds of desertion, for restitution of conjugal rights. She and her witnesses

(1969) H.C.D. ZANZ.

- 67 –

Persuaded the Kadhi that the plaintiff had in fact divorced her by pronouncing the talak three times. Neither the parties nor their witnesses were sworn before testifying, however, and the Kadhi did not ask the plaintiff for any reply to his wife’s allegation.

Held: (1) Generally, a witness’s testimony is not admissible in evidence unless he has been sworn to speak the truth. (Citing R. v. Tew, Dear 429; R. v. Brasier (1779), 1 Leach 199; Attorney General v. Bradlaugh, (1885) 14Q.B.D. 667, C.A.)

(2) The failure to swear a witness, though a “serious irregularity” in a trial, will not necessarily invalidate the proceedings. (Citing Oaths Decree, s. 11.)

(3) A re-hearing is here ordered because “it is difficult to say whether or not the parties or their witnesses spoke the truth,” and because of the “one-sided” conduct of the hearing by the Kadhi.

FAMILY LAW

Divorce – Decree should notice based solely on proof that husband and wife have serious disputes.

Khamis bin Mohamed Hassan v. Mwana Alama binti Haji Juma Mtumbatu, Civ. App. 3-Z-65, 15/8/65, Saidi Ag. C. J.

Plaintiff sued to divorce her husband on grounds that he had a habit of pilfering other people’s deposits entrusted with her, and on the grounds that he could not maintain her. Defendant agreed with some claims and denied others. The Kadhi noted these facts briefly and said that divorce would be granted, saying, “When it is known for certain that wife and husband cannot live together peacefully, the sheria will ask the wife to pay back the dowry to get a divorce, for it is very dangerous if they remain together they may harm each other.” (Citing Subulu el Islam, Vo. 111, p. 134; Naibu el Awter, Vol. X11, p. 37; and Fathi el Allam, Vo,. 11, p. 135.) Divorce was granted conditional on payment by the wife of Shs. 100/- dowry, and the husband appealed

Held: The Kadhi did not satisfactorily resolve the matter, as framed by the parties. It is improper to base the decree merely on the fact that they have serious disputes. Re-hearing ordered before a different Kadhi.

Promise to marry – Specific Performance cannot be ordered – Damages are the only remedy for breach.

Maryam binti Ahmed v. Ali Salim Mohamed, Civ. App. 2-Z-66, 25/1/67, Saudi Ag. C. J.

The plaintiff, who alleged that she had a child by the defendant, sued for specific performance or, alternatively, for damages, for his breach of promise to marry her. She was unsuccessful in the Kadhi’s court, where her claim was dismissed for failure to prove the promise. The High Court

(1969) H.C.D. ZANZ.

- 68 –

Agreed that the promise had not been proven.

The Court stated obiter: Specific performance of a marriage can no longer be decreed in any country. The only action available for breach of a promise to marry would be one for damages.

GIFTS

Islamic law – Shia sect – Requirements for valid gift. Conflict laws – Gifts and distribution of estates – Muslim law governs where the deceased was a Muslim.

Administrator-General, Zanzibar, Administrator of Estate of Topan Karsan Ramji alias Rashid Karsan Ramji, Deceased v. Kulsam Fadhil Mussa and Five Others, Civ. Case 11A-Z-66, 7/2/67, Kimicha Ag. C. J.

The parties, children of the deceased, claimed a piece of property formerly belonging to the deceased. The Administrator General is the plaintiff in form only, bringing the action in court for instruction on the question of which of the disputants should receive the property. Mohamed Hussein claims the property by way of a deed of gift, made to him by the deceased, his father, in 1960. The deed of gift was duly witnessed, but he deceased died without registering it as required by Zanzibar law. Mohamed’s sister argued that the gift was invalid for non-registration, and therefore that the property was properly part of the deceased’s estate, to be distributed among all the heirs. One Ahmed Juma testified that he had been a tenant on the property since 1960, that the deceased in 1960 told him that he had given the property to his son and that the rent should thenceforth be paid to the son, and that the had since that time paid the rent to the son who issued receipts in his own name. one of the witnesses to the deed of gift testified as to its genuineness. The parties were Muslims, members of the Shia sect.

The parties, children of the deceased, claimed a piece of property formerly belonging to the deceased. The Administrator General is the plaintiff in form only, bringing the action in count for instruction on the question of which of the disputants should receive the property. Mohamed Hussein claims the property by way of a deed of gift, made to him by the deceased, his father, in 1960. The deed of gift was duly witnessed, but the deceased died without registering it as required by Zanzibar law. Mohamed’s sister argued tat the gift was invalid for non-registration, and therefore that the property was properly part of the deceased’s estate, to be distributed among all the heirs. One
Ahmed Juma testified that he had been a tenant on the property since 1960, that the deceased in 1960 told him that he had given the property to his son and that he had since that time paid the rent to the son, and that he had since that time paid the rent to the son who issued receipts in his own name. One of the witnesses to the deed of gift testified as to its genuineness. The parties were Muslims, members of the Shia sect.

Held: (1) The validity of gifts and the distribution of estates is governed by Muslim law, where the deceased was a Muslim. “In civil matters the law of Islam is an hereby declared to be the fundamental law of the Republic,” under Cap. 3, s. 7.

(2) Mulla’s Principles of Mohammedan Law, par. 150(3), states; “If it is proved by oral evidence that a gift was completed as required by law, it is immaterial that the donor has also executed a deed of gift, but the deed has not been registered as required by the Registration Act.”

(3) According to Shia law, the requirements for a valid gift are: (a) a declaration of the gift by the donor; (b) an acceptance of the gift by the donee; and (c), a delivery of possession to the donee. Since these requirements complied with here, the gift was valid, and Mohamed Hussein is entitled to the property.

(1969) H.C.D. ZANZ.

- 69 –

INSURANCE

Theft – Burden of proof as to theft of goods – Marine insurance Act’s definition of theft.

Reliance Marine Insurance Co. v. Khab Rajpar & Co., Civ. App. 10-Z-67, 3/11/67, Kimicha Ag. C. J.

The defendant insured a shipment of 58 bales of mats sent by the plaintiff from Hong Kong to Zanzibar. The bales were a damaged when unloaded in Zanzibar Barbour. When the goods were examined by customs authorities a short time later, 656 pieces valued at Shs. 1,977/- were missing. The insurance policy covered, inter alia, losses from “(p)irates, robbers, thieves and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the aforesaid subject matter of the insurance, or any part thereof.” The defendant insurance company did not dispute the amount or valuation of the plaintiff’s loss; however, it denied liability. The plaintiff, admitting that the policy was not an all-risks policy, argued that it was a warehouse-to-warehouse policy; the plaintiff contended that it had discharged its onus of proof by showing that the goods had been stolen before passing through Zanzibar customs officer who had passed on these goods, which said that the cases containing the goods were “torn” and “broken”. The defendant argued that, as this was not an all-risks policy, the plaintiff was obliged to show that the loss was occasioned by on of the perils enumerated in the policy, and that since the plaintiff had failed to do so, recovery should be denied. (Citing 2 Arnold on Marine Insurance, 15^th edition, Para. 1272; 22 Halsbury’s Laws of England, 3d edition, Para. 73, Para 131; and distinguishing Kanti Ltd. v. British Traders Ltd., (1965) E.A.L.R. 108).

Held: (1) Theft, as defined by the Marine Insurance Act 1906, requires violence in the taking. (Citing (1922) All E. R. 372). It may be that the bales were accidentally damaged during the unloading, where upon someone helped himself to the goods. This would be pilferage and not theft under the Act, and the loss would not be covered by the policy.

(2) The plaintiff, however, discharged his burden of proof, by showing damage by breaking and tearing in a manner neither natural nor inevitable. This damage amounts to theft under the marine Insurance Act. As the defendant neither conducted any cross-examination nor put forth any evidence to counter the plaintiff/s submissions, the judgment of the trial court in the plaintiff’s favour, awarding him Shs. 1,977/- as prayed, was correct.

(3) The report of the customs officer made at the time f his inspection of the goods, including his remarks on the back of the form, was admissible in evidence and, in the absence of contrary evidence, is presumed to be correct. (Citing Evidence Decree, Cap. 5, s. 114.)

(1969) H.C.D.

- 70 –

ISLAMIC LAW

Family law – Divorce – Decree should not be based solely on proof that husband and wife have serious disputes.

See case no. 78.

Family law – Promise to marry – Specific performance cannot be ordered – Damages are the only remedy for breach.

See case no. 79.

Gifts – Shia sect – Requirements for valid gift.

See case no. 80.

LABOUR

Termination of employment – Oral employment contract unenforceable – One month’s notice not required.

Bakari Basegese Mrundi v. Mowlem Construction Co., Civ. App. 2-Z-65, 23/12/65, Saidi Ag. C. J.

The plaintiff’s employment with the defendants was terminated without 1 month’s notice. His suit for payment in lieu of notice, and for 7 days’ work an expenses of repatriation from Zanzibar to Pemba, was dismissed by the Resident Magistrate. The employment agreement had been oral, and the plaintiff had made admissions before the Labour Inspector which cast doubt on his version of its provisions.

Held: This contract was “one that was required to be in writing, and in terms of sub-section 3 of section 4 of the Labour Decree the defect ought to have been corrected within a month to make it enforceable.” This, along with the flaws in the plaintiff’s case as he had presented it in the earlier proceedings, sustains the Resident Magistrate’s decision.

The Court stated, obiter: “The whole of section 4 is not, I would venture to say, so happily worded and appears to limit the rights of employees seriously. “

PROCEDURE

Appeal – Memorandum of appeal must be accompanied by certified copy of order appealed from – Time –barred appeal.

Hassanali Mohamed Kermali v. Khaku Rajpar & Co., Civ. App. 13-Z-67, 7/3/68, Kimicha Ag. C. J.

An exparte judgment was entered against the defendant for Shs. 4,300/- by a Resident Magistrate. His

(1969) H.C.D. ZANS.

- 71 –

application before a different Resident Magistrate, to have the ex parte judgment set aside, was refused. The defendant then appealed both against the ex parte decree and against the order refusing to set it aside. Submitted with the appeal was the original judgment against the defendant, but no copy was submitted of the order refusing to set aside the judgment. The defendant conceded that the appeal was time-barred, but sought the indulgence of the High Court to hear his appeal. The defendant is an advocate practicing in Mwanza; the high Court however, did not rely on that fact in rendering the decision.

Held: (1) Order 46, rule 1(2) requires that a certified copy of an order being appealed from must be annexed to the memorandum of appeal. (Citing Kotak, Ltd. v. Kooverji, (1967) E.A. 349). Thus the appeal from the refusal to set aside the judgment was incompetent. This claim was also time-barred by 6 days.

(2) This leaves only the appeal from the original judgment, which is time-barred by 31/2 months. No reason was given by the defendant to explain his dalliance. Permission to appeal out of time refused. Appeals dismissed.

84. Appeal – Time- barred- Revolution of 1964 as “special circumstances” – Defendant’s insurers may apply for leave to appeal on behalf of defendants.

In the matter of an intended appeal between Mbaruk Khamis and Abbas Mashoka and Ali Saleh Suleiman Ismail, E.A.C.A. Civ. App. 1-Z-65, 15/1/66, Saidi Ag. C. J.

The plaintiff had sued the two defendants for damages resulting when his son was killed in a motor accident involving their vehicles. The action was begun in 1962, and was ordered to trial in December, 1963. The trial was interrupted by the Revolution on 12 January 1964. The plaintiff then “left Pemba rather suddenly.” His library was confiscated, and “most of his files and office records were lost or destroyed,” according to his advocate’s affidavits. In his haste, he did not inform the defendants, or the insurers of the second defendant, about the progress of the suit. At the High Court’s second sitting in Pemba after the Revolution, in March of 1965, the trial began again, with the defendants appearing in person without counsel. The plaintiff obtained judgment for Shs. 10,000/-. The second defendant’s insurers were informed of this judgment only when the plaintiff’s counsel wrote, in May of 1965, to demand payment. They immediately retained an advocate, who prepared and filed this application for leave for the defendant to appeal out of time. Arguments were ultimately confined to the second defendant’s application.

Held: (1) “(T) his case has gone through exceptional circumstances in view of the consequences of the Revolution in Zanzibar … No one is really to blame for this long delay.”

(1969) H.C.D. ZANZ.

- 72 –

(2) The insurers, “though not formal parties to the suit have special interest in it …….” Leave granted to appeal to the Court of Appeal within 30 days.

85. .Arrest of judgment debtor – Procedure to be followed.

Fatethali Ali Jessa v. Shabani Kapera and Two Others, Civ. Rev. 5-Z-66, 23/12/67, Kimicha Ag. C. J.

Judgment was entered for the plaintiffs on the merits of this dispute and the defendant was ordered to make specified monthly payments. The trial court also ordered that a warrant of arrest was to issue against the defendant in default of payment.

Held: A defendant may not be arrested simply for a default in payments on a judgment debt. Upon such default, the defendant should be served with notice to show cause why the decree should not be executed by attachment and sale of his property, or by committing him to civil prison. If the defendant cannot show good cause, or without cause fails to appear before the court, then the court has the discretion to issue a warrant of arrest. Order for the defendant’s arrest set aside.

Arrest of judgment debtor – Refusal or neglect to pay must be shown.

Daud Abdulla v. Narainsingh Khansingh, Civ. Rev. 1-Z-64, 6/4/64, Horsfall J.

A judgment debtor was ordered by the magistrate to pay the full decretal amount by a certain date or be committed to prison for 6 weeks in default. Previously, the debtor had offered to pay the amount, some Shs. 1,600/- in monthly instalments of Shs. 75/-.

Held: Under the arrest provisions of the Civil Procedure Decree, an arrest may not be ordered unless the debtor has, since the date of the decree, refused or neglected to pay. No inference of the person’s ability to pay and refusal to pay can be drawn merely from an offer to pay by instalments. Such a finding is a “material irregularity” which justifies the setting aside of the magistrate’s order. The debtor is ordered to pay by instalments of Shs. 75/-.

87. Jurisdiction – Suits must be filed in court of lowest grade competent to try suits of its kind – Pecuniary jurisdiction of District Courts.

Abdulali Waliji v. Maganlal Mulchand, Civ. Case 13-Z-66, 9/7/66, Saidi Ag. C. J.

The plaintiff filed a plaint in the High Court, claiming Shs. 7,894/-.

Held: (1) Every suit must be instituted in “the Court of the lowest grade competent to try it.” (Civil Procedure Decree, Cap. 8, s. 10.)

((1969) H.C.D. ZANZ.

- 73 –

(2) This suit should have been brought in the District Court, which is empowered to hear civil cases involving claims for Shs. 20,000/- or less. (Citing Presidential Decree No. 3 of 1966, s. 13.)

Re-trial – Judgment for plaintiff at initial trial – Suit should not be dismissed for failure of plaintiff to appear at second trial.

Juma Gor Haji v. Abbas Hajab, civ. Rev. 2-Z-67, 24/10/67, Kimicha Ag. C. J.

The plaintiff claimed custody of child. Judgment was given in his favour in the Kadhi’s court, but on appeal the High Court ordered a re-trial before a Resident Magistrate for a re-examination as to material dates involved in the dispute. On the date set for re-trial, neither of the parties appeared in court, whereupon the Resident Magistrate dismissed the suit, with costs for non-appearance. The plaintiff lived on one of the islands near Zanzibar.

Held: The magistrate’s action was correct according to Standing Procedure. However, this suit is not before the courts for the first time, and of first hearing judgment was given for the plaintiff. There must be compelling reasons for the same courts to reverse the plaintiff’s rights. The plaintiff lives on a nearby island, and travel to the mainland is controlled by the tides of the sea. At issue is the destiny and welfare of a young child. There are facts which impose on the courts an obligation to give thorough consideration to the case before making a final disposition of it. “(P)laintiff’s suit should not have been dismissed peremptorily on his non-appearance, and he should have been given more time for presenting his suit, perhaps after giving him some warning of punctual attendance on hearing dates.” Order dismissing the suit set aside; re-trial ordered.

SUCCESSION

Muslim deceased – Islamic law governs distribution of estate.

See case no. 80

(1969) ZANZ.

- 74 –

CRIMINAL CASES

CRIMINAL RESPONSIBILITY

Mistake of fact – Reasonable mistake as a complete defence.

See case no. 114.

Self-defence – Amount of force permissible – Excessive force results in conviction for manslaughter.

R. v. Sultan Habib, Crim. Sass. 5-Pemba-67, 21/9/67, Kimicha Ag. C. J.

The accused pleaded not guilt to a charge of murder c/s 180 of the Penal Decree, although he admitted having inflicted the wounds which caused the death of the deceased. He claimed that he had come upon the deceased stealing from his shamba; in the struggle which ensued, the accused was unharmed, but the deceased received several panga wounds, including one on the right leg and one on the left arm which were so serious that both these limbs had to be amputated during the deceased’s ultimately unsuccessful treatment. The accused claimed that the deceased had brought the panga and had tried to use it on the accused and that in struggling with him the accused had wrestled it away from the deceased and defended himself with it.

Held: (1) Responsibility for the use of force in defence of person or property is determined according to the principles of English law, according to s. 17 of the Penal Decree. “(T)he party whose person or property is attacked is not obliged to retreat, as in other cases of self-defence, but may even pursue the assailant until he finds himself or his property out of danger. But he must not strike blows except in self-defence.” (Archbold, Criminal Pleading, Evidence and Practice, 30^th edition.) The amount of resistance may be no more than is reasonable considering the surrounding circumstances. (Kenny, Outline of Criminal Law, 18^th edition, p. 138.) The accused had no right to strike anyone unless he was attacked first, and even then only with such force as was reasonably necessary to repel the attack.

(2) Although the proposition seems dubious, the Court gives the accused the benefit of the doubt in proceeding on accused. If the force used by the accused to repel the attack was reasonable in the circumstances, he is entitled to a full acquittal; but if excessive, he is guilty of manslaughter. In view of the extensive and serious wounds received by the deceased, and the fact that the accused received by the deceased, and the fact that the accused received no injuries at all, the force used by the accused was clearly excessive and beyond what was reasonable in the circumstances. The accused convicted of manslaughter.

(1969) H.C.D. ZANZ.

- 75 –

EVIDENCE

Admissions and confessions – Statement made to arresting police officer – Statements inadmissible.

See case no. 130

Casting away vessel – Threat does not, in itself, establish prima facie case – Confession made to police is inadmissible.

R. v. Said Rasamu Tamimi, Crim. Sass. 12-Z-66, 14/3/67, Kimicha, Ag. C. J.

The accused was charged with casting away vessels c/s 296 of the Penal Decree. Upon the completion of the prosecution’s evidence, the High Court (heading the case under its original jurisdiction powers) found that the case against the accused consisted of (a) testimony by several fishermen that on the day before the offence was committed, the accused had warned them that he would cast away their boats that night; and (b) a statement made by the accused to the police in which he admitted having committed the offence.

Ruled: (1) The warnings given by the accused to the fishermen give rise to suspicion only. The accused may have changed his mind and not cast the vessels away; someone else who heard the accused utter the warnings may have taken advantage of the situation and committed the offence. A threat to do an act, unsupported by other evidence, is insufficient to make but a prima facie case for the accused to answer. (Citing R. v. Siprian s/o Nshange, 14 E. A.C.A. 72 (1947); Chabildas Somaiya v. R., 20 E.A.C.A. 144(1953).)

(2) The accused’s statement to the police amounted to a confession. Confessions made to the police, or to anyone while in police custody are not admissible in evidence, under Criminal Procedure Decree sections 25 and 26. As the accused’s threat is the only evidence remaining, there is no case to answer.

91. Corroboration – Requirement of credibility distinguished – Accomplice’s testimony must be corroborated.

Mussa Salim Othman v. R., Crim. App. 195-Z-67, 6/9/67, Kimicha Ag. C. J.

The accused was convicted of stealing by public servant c/s 248 (1) (4) of the Penal Decree. The principal witness for the prosecution was one Mohamed Hilal, who had already been convicted of theft in connexion with the same bags of sugar involved in the present case. The accused argued at the trial that Hilal,s testimony had to be corroborated; the trial magistrate ruled that, as Hilal was not a co-accused in the case his testimony could be admitted without corroboration, and that his criminal involvement in the matter at issue went only to the credibility of his evidence not to its admissibility.

(1969) H.C.D. ZANZ.

- 76 –

Held: The trial magistrate seemed to confuse corroboration and credibility. The credibility of any evidence is a question of fact, for the tried of fact to determine. Corroboration is a matter of law. Certain testimony, whatever the trial court may feel about its probative value, may not be considered by a court unless there is corroborating evidence to support it. The evidence of accomplices, as well as that of co-accused, falls into this category. As Hilal was an accomplice of the accused, and his testimony was uncorroborated, it should not have been admitted into evidence. Conviction quashed.

92. Homicide – Murder – Proof of the death.

R. v. Kampala s/o Mateo, Crim. Sass. 16-Z-65, 29/6/66, Saidi Ag. C. J.

The accused was charged with murdering his wife. There was testimony by an acquaintance of his that he had said twice that his wife would not be seen again. Others testified that he had said that he had buried a cat in the place where, subsequently, human bones were discovered. A medical witness testified that he thought that the bones had been at that place since before the time the wife had been missing. She had been missing for 6 months.

Held: Accused is acquitted. The evidence does not clearly establish that his wife is dead.

93. Identification of stolen goods – Goods should be kept in proper custody until

trial.

Ali bin Omar Rashid v. R., Crim. App. 131-Z-65, 3/1/66, Saidi Ag. C. J.

A mirror and some chickens were stolen from the complainant. The accused was seen with 1 of 2 mirrors later presented in court, and was taken to an Afro-Shirazi Party Branch with it. The complainant testified that “her mirror was returned to her compound two days after the theft. After being charge d the appellant produced another mirror which appeared to be similar to the one alleged to be stolen,” and it was also presented in court.

Held: “Had [the mirror allegedly with the accused at the A. S. P Branch] been taken from him and kept in proper custody the case of the prosecution would have been a strong one.” As it is, the identification of the mirrors was unsatisfactory, and the accused is entitled to the benefit of the doubt. Conviction quashed.

Judicial notice – Notice taken that Government released many prisoners sentenced under previous legislation.

See case no. 119.

Presumption that police act legally.

See case no. 103.

(1969) H.C.D. ZANZ.

- 77 –

HOMICIDE

Evidence held insufficient to prove death.

See case no. 92.

Manslaughter – Provocation by words.

R. v. Juma bin Hamadi, Crim. Sass. 1-Pemba-66, 5/3/66, Saidi Ag. C. J.

The accused and the deceased engaged in an argument that ended with the accused striking the deceased on the head with a hoe, causing a skull fracture and internal bleeding which led to his death. The dispute began when the deceased cursed the accused and made obscene statements about his wife. The accused had no prior criminal record. The accused was charged with murder.

Held: The abuse by the deceased was insulting and provocative. The accused struck the blow causing death “while he was in the grip of provocation having been vulgarly abused by the deceased.” The accused was convicted of manslaughter, and sentenced to 8 years’ imprisonment.

Manslaughter – Provocation by words – Sensitivity of Muslims fasting during Ramadhani considered.

R. v. Khatibu Haji Shirazi, Crim. Sass. 4-Z-65, 26/6/65, Saidi Ag. C. J.

The accused was charged with murder c/s 180 of the Penal decree. Until approximately 1 year before the incident here considered, the accused and the deceased were living together in a certain house. The accused and his wife lived in one part of the house, and the deceased was in another. One day the accused found unsigned love letters to his wife. Shortly thereafter, he moved out, leaving some of his personal effects. During the following year, the accused and his wife were divorced, but the accused never returned to the house for his things. On the day in question, during the month of Ramadhani, he and the deceased met on the street, and the deceased told him to go to the house and remove his property. According to the accused’s unsworn statement, the deceased said to him, “Mimi Mwanamume kwako. Wewe baradhuli, wahedi na ndiyo mama wa watoto akipenda kulala na mimi. Baradhuli wahedi hanithi mkubwa.” The accused, who was fasting, became enraged and caught hold of the other man’s throat. The deceased reached for the accused’s knife, and during the ensuing struggle the accused killed him with it.

Held: The accused is convicted of manslaughter c/s 179 of the Penal Decree. The assessors found the deceased’s statement so provocative that they suggested it not be repeated during counsel’s arguments in court; and prosecution witnesses admitted in cross-examination that, during Ramadhan fasting muslims are more susceptible to provocation than at other times. The accused is sentenced to 7 years’ imprisonment.

(1969) H.C.D. ZANZ.

- 78 –

96. Negligent act causing death. Sentence – Fine payable in instalments – Part of fine to be paid as compensation to family of deceased.

R. v. Makame bin Chumu, Crim. Sass. 10-Z-66, 6/3/67, Kimicha Ag. C. J.

The accused had a shop where he sold antidotes for various ailments, including one known as “maji ya Zanda,” popularly used for stomach pains. The accused also kept some cattle; he used cattle dip to treat them for ticks. On the day he put a bottle of cattle dip (which contains a considerable amount of arsenic) on the same shelf where “maji ya Zanda” was regularly kept, in a bottle labeled “maji ya Zanda”. One afternoon, the accused’s son was tending the store. The deceased’s mother came in to purchase some “maji ya Zanda” for her daughter, who was suffering from stomach pains. The son, not having been warned by the father, sold her some of the cattle dip, believing it to be the remedy she wanted. Her daughter died shortly after drinking it. The accused was charged with committing a rash or negligent act causing death c/s 216 of the Penal Decree, as amended by Decree No. 7 of 1959. The accused pleaded not guilty, denying that he had been negligent.

Held: (1) The evidence showed beyond a reasonable doubt that the accused did a negligent act causing the death of the deceased, within the meaning of the statute.

(2) The accused is sentenced to pay a fine of Shs. 600/-, to be paid in instalments of not less than Shs. 150/- per month, or a term of imprisonment in default.

(3) Shs. 400/- of the fine (if paid) is ordered to go to the family of the deceased as compensation and to meet funeral and incidental expenses.

Self-Defence – Excessive force results in conviction for manslaughter.

See case no. 89

IMMIGRATION

97. Prohibited immigrant – Burden of proof on accused. Constitutional Law – Immigration is a union matter. Order to leave Zanzibar.

Sadik Budha Ilyas v. R., Crim. App. 210-Z-67, 2/9/67, Kimicha Ag. C. J.

The accused, who had previously been declared a prohibited immigrant, was convicted of entering and remaining in the Republic while being a prohibited immigrant. [Immigration control Decree, Cap. 43, ss. 5(1), (2) and 13(1)(h).] The accused said nothing in his defence.

Held: (1) After the prosecution had presented its case, the onus of proof was on the accused to show that he was not in the Republic illegally. Since he made no defence at all,

(1969) H.C.D. ZANZ.

- 79 –

his conviction in the lower court was clearly correct.

(2) “Immigration is a union matter under the Tanzanian constitution, and this case would probably have raised a very important constitutional point of law for the consideration of the High Court , had the appellant decided to defend himself in the lower court.”

(3) Upon release from prison, the accused’s travel documents (issued in Dar es Salaam) shall be returned to him, and he is to leave Zanzibar within 48 hours.

LIQUOR

98. Presumption of guilt of occupier of premises – Presumption rebutted where owner or possessor of proscribed item is ascertained.

R. v. Hussein bin Adam, Crim, Rev. 8-Z-64, 28/11/64, Erokwu Ag. C. J.

The two accused were convicted of being in possession of articles used, or intended for use, in the manufacture of native liquor, c/s 5(a) of the Native Liquor Decree, Cap. 164. A third person was also convicted, on his own plea of guilty. In convicting the two accused who appealed, the magistrate seemed to rely on section 791) (b) of the Decree, which provides for a presumption of guilt on the part of anyone occupying premises, or having access to any part of premises, where such articles are kept. These two accused lived together with the third in a 3 – roomed house.

Held: “In my view the occupier of such premises would be relieved of the onus (of) establishing his innocence where as in the instant case the owner or the possessor of the articled has been ascertained.” Convictions quashed.

NUISANCES

99. Rogues and vagabonds – Distinguished from attempted housebreaking.

Mohamed s/o Omar Shirazy v. R., Crim. App. 61-Z-65, 14/8/65, Saidi Ag. C.J.

The accused was seen “in the compound of the house of the complainant at about 9.00 A.M; knocking at he back door while buttoning his trousers. He had evidently “broken that he had been too drunk to know what he was doing, but was convicted of attempted house breading with intent to steal. [See Penal Decree, Cap. 13, ss. 352(1), 267(a).]

Held: The evidence supports a conviction of accused “as a rogue and vagabond under section 165(d)” of the Penal Decree, rather than the conviction recorded by the Resident Magistrate. Conviction substituted accordingly, under section 263 of the Criminal Procedure Decree. Cap. 14.

(1969) H.C.D. ZANZ.

-80 –

PARTIES TO OFFENCES

Theft by directions made to a child.

See case no. 130

PROCEDURE

100. Application for trial by other magistrate – Grounds for granting application.

Hassani bin Vusi Mnayasa v. R., Misc. Appl. 7-Z-64, / /64, Erokwu Ag. C. J.

The accused applied to be tried by a magistrate other than the one scheduled to try him, on the grounds that the latter had twice previously convicted him, and on the grounds that the magistrate had declared before the audience that he had no faith in the accused and had made other derogatory statements about the accused.

Held: Because this magistrate would know of the accused’s previous convictions, and because he does not object to the transfer of the case to another magistrate, “and on these two grounds only,” the application is allowed.

(Editors’ note: In a case where the accused alleged that the same magistrate had said that he had “no faith” in the accused, but allege no other grounds for the transfer of his case, a similar application was denied. Hassan bin Abdulla v. R., Misc. Appl. 11-Z-64, 24/11/64, Erokwu Ag. C. J.

101. Autrefois acquit – Dismissal of a prosecution bars another prosecution based upon same accusation – Proper procedure for prosecution to follow when trial court wrongly dismissed a suit.

R. v. Tribhon Gokaldas, Crim. Rev. 8-Z-66, 9/10/66, Saidi Ag. C. J.

The accused was initially, charged with shop breaking and stealing, c/ss. 269(a) and 248(1) of the Penal Decree. When the case came for hearing, the prosecutor who had the case file and was to handle the case was not in court. For want of prosecution evidence the trial magistrate dismissed the charge and discharged the accused. The prosecutor was only out of court for a short while doing other work, and he appeared to try the case only a few minutes after its dismissal. When the present action was then herd, the charge being based on the same facts, the accused argued that the earlier dismissal was a bar to the present action. The trial magistrate held that the earlier dismissal was not a bar to the present action.

Held: (1) the Criminal Procedure Decree, Cap. 14, s. 184 reads: “the production of a copy of the order of dismissal, certified by the clerk or other officer of the

(1969) H.C.D. ZANZ.

- 81 –

court, shall without other proof be a bar to any subsequent information of complaint for the same matter against the same accused person.” The language of section 184 clearly indicates that the present action was mis-conceived, and should have been dismissed by the court.

(2) The prosecution adopted the wrong course in opening a fresh case in this matter. It should have petitioned the High Court for revision of the first dismissal order by the magistrate. Had it done so, it would have succeeded because the order of dismissal of the charge was made rashly, without allowing the Republic a reasonable period of time to find its prosecutor to present the case.

102. Autrefois convict – Failure of court to try 1 of 3 charges, because of lack of jurisdiction, does not bar subsequent prosecution in proper court. Sentence – Court may withhold punishment would be “inexpedient.”

R. v. Kastumu bin Mathias, Crim. Sass. 11-Z-66, 14/3/67, Kimicha Ag. C. J.

The accused had a dispute with the complainant, as a result of which the accused broke into the complainant’s house, hit his wife in the eye, and tried to strike the complainant with an axe. He was charged with doing an act intended to cause grievous harm c/s 205(b) of the Penal Decree, which carries a maximum penalty of life imprisonment, and is triable only by the High Court. During the course of the trial, the accused raised as a defence the fact that he had been tried and convicted, and had served a sentence of 12 months’ imprisonment, for the acts set out above. The charges at the earlier trial, in a magistrate’s court, had been laid for criminal trespass, breading into complainant’s house, and assault causing actual bodily harm (for striking the wife). The third charge was coupled with the same charge that was laid in the present case; both were with-drawn upon discovery that the magistrate’s court lacked jurisdiction to try the charge under s. 205(b). The High Court found that the accused had committed the alleged acts, and that they amounted to a violation of s. 205(b).

Held: (1) “(T)he accused’s plea of autrefois convict could not be accepted, as the prosecution was technically right in charging him with three counts arising from the same offence …….” As he had not been tried on 1 of the counts earlier, it can now be raised before this, the proper forum.

(2) “(H)aving regard to the circumstances of the historical background of the offence, it is inexpedient to inflict any punishment.” (Citing Criminal Procedure Decree, Cap. 14, s. 315(1), which provides for such action when, for any of several enumerated reasons, punishment would be “inexpedient.”

103. Bail – Arrest without warrant – Accused not charged with offence – Magistrate’s court may not grant bail. Illegal detention – Habeas corpus is proper remedy. Evidence – Presumption that police act legally.

(1969) H.C.D. ZANZ.

- 82 –

R. v. Madhur Kapadia, Crim. Rev. 1-Z-66, 1/9/66, Saidi Ag. C. J.

On 7 January 1966, a police officer was instructed to search the store of the accused, upon information that certain goods stolen in Tanganyika had been smuggled into Zanzibar and were stocked in his store. Such a search was proper and properly carried out. (Police Decree, cap. 50, s. 27.) During the search, goods were found for which the accused could not account satisfactorily. Thereupon he was arrested, without a warrant, and detained so that the firm’s two godowns could be searched without the accused having the opportunity to hide any stolen goods which might be kept therein. Within two hours of his arrest, an advocate appeared before a Resident Magistrate seeking bail for the accused. He had previously approached the police, who refused bail. The advocate claimed that he had in his possession invoices covering the goods which the accused had been unable to account for satisfactorily, and that the accused had his business in Zanzibar and was well known, so that there was no danger that he would not appear for trial. He argued that if the police had suspected the presence of stolen goods in the godowns as well as the store, these places should have been searched simultaneously. Over police objection, bail was granted to the accused, pursuant to the provisions of the Criminal Procedure Decree, cap. 14, s. 117(1).

Held: (1) Section 117(1) provides, in part: “When any person, other than a person accused of murder or treason, is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail, such person may be admitted to bail.” The advocate was permitted to appear for the accused because the latter was precluded from appearing, as he had not yet been brought to court to answer any penal charge. The words “appears or is brought before a court’ refer to the accused alone, and do not refer to an appearance by an advocate. Until the accused has been charged with a specific offence, a magistrate’s court has no power to grant bail, and the court here should have refused to do so.

(2) The Court stated, obiter “There are minor offences such as traffic offences and breaches of town rules, in which the appearance of the accused person can be dispensed with under section 93 of the Criminal Procedure Decree. In such cases an advocate, or any other representative of the accused person being fully instructed in the matter, is allowed to appear for him before the court, but here again the matter of bail does not arise.”

(3) The police are empowered to arrest without a warrant a person suspected to have committed a cognizable offence, under s. 21(a) of the Criminal Procedure Decree. A person so arrested must be taken before a magistrate having jurisdiction without delay, according to s. 25. By s. 28, an accused may be held in custody pending investigation, where the offence appears to be of a serious nature, for up to 24 hours, but no longer. In view of the language of s.28, the police quite properly refused bail, section 117(1) notwithstanding. In all events, s. 117 is merely permissive; it allows bail in certain situation, but in no instance

(1969) H.C.D. ZANZ.

- 83 –

does it require that bail be allowed.

(4) The conduct of the police in this case cannot be faulted. “The police force exists for benefit of the public in general and ought, as far as it is possible, to be presumed to be acting in good faith in carrying out its duties, unless there is sound reason to believe it is not doing so.”

(5) The Court noted, obiter, that if the accused had been held for over 24 hours, in contravention of s. 28, his proper remedy would have been to apply to the High Court for a write of habeas corpus.

104. Failure to record proceedings – Proceedings declared null.

R. v. Wabil Abushir Mnubi, Crim. Rev. 3-Z-65, 23/2/65, ---------- Ag. C. J.

The accused was allegedly convicted of forgery in Pemba. He petitioned to appeal out of time, and subsequently the High Court called for the records from the Regional Commissioner of Pemba. The Regional Commissioner replied that the case had indeed been adjudicated, but that no record of the proceedings had been kept.

Held: “This is a practice which is both improper and unlawful and must be stopped forthwith.” Trial declared a nullity, without prejudice to re-trial of the accused.

105. Jurisdiction – District Court tried case outside its jurisdiction – Conviction a nullity – New trial necessary. Sentence – Inconvenience to accused because of multiple trials to be considered in later sentencing.

R. v. Tahir Ali, Crim. Rev. 43-Z-66, 28/12/67, Kimicha Ag. C. J.

The accused was convicted by a District Magistrate, upon his own plea, of an unnatural offence c/s 142(c) of the Penal Decree. After the proceedings were completed, the District Magistrate realized that he lacked jurisdiction to try the case, whereupon he correctly forwarded the record to the High Court for revision.

Held: (1) As the District Magistrate had no jurisdiction to hear this case, the trial was a nullity. Conviction quashed.

(2) The prosecution is at liberty to prefer fresh charges based on this alleged offence before a Resident Magistrate. “If this is done and the accused is re-convicted, the period that he has already served in prison and the convenience to him caused by the long trial should be taken into consideration in passing sentence.”

(1969) H.C.D. ZANZ.

- 84 –

Offences against public order – Uttering seditious words – Written consent of Attorney General must be obtained by prosecution.

See case no. 112.

106. Plea of guilty – Must be unequivocal – Particulars of charge should be stated in detail before accused is asked to plead.

R. v. Joseph Aliphonce, Crim. Rev. 14-Z-66, 12/7/66, Saidi Ag. C. J.

The accused, without being told the particulars of the offence with which he was charged, was asked to plead to the charge. His answer was, “I agree that I called the Police.”

Held: (1) The accused’s answer was not an unequivocal plea of guilty. The prosecution must have outlined the facts of the case, whereupon the accused must have admitted that the facts as stated are true, if there is to be a proper of guilty. (Citing Regina v. Waziri s/o Musa, 2 T.L.R. 30.)

(2) The proper procedure in taking a plea is as follows (quoting from R. v. Asis Mrimbi, Crim. Rev. No. 34 of 1964, per Spry J., Tanganyika High court Bulletin, case no. 204): “(a) the charge is read and explained to the accused ; where there are more counts than one, each should be put separately; (b) the plea should be recorded in the accused’s own words; where necessary, questions should be put to the accused to make it clear whether or not he admits every essential constituent of each offence charged; (c) the plea is entered; (d) the facts alleged are stated by the prosecutor in sufficient detail to bring out all the essential constituents of the offense charged and also to enable the court to assess the gravity of the offences; (e) the accused is asked if he admits the truth of the statement; if he does not, he must be given the opportunity to change his plea unless the prosecutor accepts the accused’s corrections and if necessary applies for leave to amend the charges; (f) if the plea is not change, a conviction is entered; ……”

107. Plea to offence charged – Must be taken by magistrate hearing case, even though accused has already pleaded before another magistrate. Sentence – offences charged in single count are punishable with a single sentence only – Concurrent sentences are proper for offences committed in a single transaction.

R. v. Saidi Abdulla Riyami, Crim. Rev. 13-Z-66, 12/7/67, Saidi Ag. C. J.

The accused was charged in one count with storebreaking and stealing. Upon conviction, he was sentenced to 2 years for storebreaking, and 2 years for stealing, the sentences to run consecutively. The case was heard

(1969) H.C.D. ZANZ.

-85 –

before 3 magistrates. The accused pleaded to the charge before the first and second magistrates, but the third failed to have him plead before trying the case.

Held: (1) Two sentenced cannot be imposed when a charge contains only one count, notwithstanding the fact that charges of storebreaking and stealing may be, and usually are, set out in two counts. The sentences imposed are set aside, and a single sentence of 2 years’ imprisonment substituted.

(2) The trial of this case should be considered as nullity because the accused did not plead to the charge before the magistrate who tried his case. (Citing Regina v. Rajab s/o Ramadhani, 2 T.L.R. 49.)However, upon the record as a whole, the conviction stands because “the guilt of the accused …… is so clear and beyond any reasonable doubt that I would be unreasonable to set aside the conviction and order a re-trial due entirely to the technical difficulty arising from the plea.” (See Criminal Procedure Decree Cap. 14, s. 367.)

(3) Normally, sentences are ordered to be served concurrently where the offences are committed in one transaction, such as storebreaking and stealing, or housebreaking and stealing. Citing Regina v. Kasongo s/o Luhogwa, 2 T.L.R. 4.) “There are however, certain exceptions ….. An example would be the case where there is a housebreaking followed by a rape.” It is generally assumed that the purpose of housebreaking or burglary is to enable the offender to steal from a house. If the offender commits an offence other than stealing, the sentences to be imposed for the respective offences ought to be made to run consecutively.

108. Requirements in summary proceeding under Municipal Council (Street and Open Space) By Laws 1963 – Plea must be taken – Record must show names of witnesses and defence made by accused.

R. v. Naran Singh, Crim. Rev. 10-Z-65, 21/12/65, Saidi Ag. C. J.

The accused was convicted of an offence against By-Law 37(1) of the Zanzibar Municipal Council (Street and Open Space) By-Laws 1963. No plea was taken, and there was no indication on the record of the defence which the accused had made.

Held (1) The accused’s plea must always be taken and noted on the record, in criminal proceedings. (Citing akbaralli Wali Damji v. Reg., 2 T.L.R. (R) 137.)

(2) Even in summary trials “the names of the witnesses called by both sides of the case and brief notes of the defence of the accused must be shown in the file.” Re-trial ordered, conviction quashed.

(1969) H.C.D. ZANZ.

- 86 –

Revision – High Court may review merits of case considered initially for revision of sentence.

See case no. 113.

109. Summary trial – Proper procedure to be followed by trial court.

R. v. Hamadi Ali Omar, Crim. Case 1148-Pemba-65, 13/1/66, Inspection Note No. 2 of 1966 by Saidi Ag C. J.

The accused was acquitted by the trial magistrate after a summary trial. The record of the case contained in sufficient particulars about what had transpired in the lower court.

The Court noted; “In summary trials the names of the prosecution witnesses as well as a brief outline of the defence of the accused should be shown on the file. This will protect the trial court from false allegations by the accused when he appeals against conviction. The accused could easily say tat his defence was not considered or his witnesses were not called or examined by the court, and the appellate court cannot fairly check upon allegations ….. If there are no notes.” (Citing Criminal Procedure Decree, Cap. 14, s. 167.)

110. Witnesses – Proper designation in trial court record.

R. v. Sherali Issack Nareja, Crim. Case 2654-Zanzibar-65, 17/1/66, Inspection Note No. 4 of 1966 by Saidi Ag. C. J.

The judgment of the trial court magistrate referred to the witnesses by number only – e.g., P.W. 4, D.W. 1, etc – and not by name.

The Court noted: Witnesses should always be referred to both by name and number, e.g., “Makanga bin Ali, P.W.2.” if only the numbers of the witnesses are used, much confusion can be caused if the numbers are wrongly written. (Citing Amirali Ismail v. Rginam, 1 T.L.R. at 371; Shoni, Commentary on the Indian Code of Criminal Procedure.)

PUBLIC AUTHORITY (OFFENCES AGAINST)

111. Disobedience of lawful order – Impossibility as a defence.

R. v. Abdulramahman Ali Shirazi, Crim. Rev. 2-Z-64, 8/1/64, Horsfall J.

Accused was convicted of disobeying a lawful order c/s 113 of the Penal Decree. Having been served with a summons in Chwaka, on the same day that it directed him to appear in Mwembeladu, he knew that he could not appear and so refused the summons.

(1969) H.C.D. ZANZ.

-87 –

Held: Conviction quashed, immediate release ordered. The magistrate did not appear to know the true facts.

112. Uttering seditious words – Written consent by Attorney General required for prosecution.

R. v. Salim bin Ali, Crim. Rev. 6-Z-65, 6/10/65, Saidi Ag. C. J.

The accused, originally charged with conduct likely to cause breach of the peace, was convicted under an amended charge of uttering seditious words c/s 41 of the Penal Decree. It was later discovered by the magistrate that the Attorney General’s written consent for this prosecution had not been obtained by the prosecutor. To prevent the accused from being unjustly detained, the magistrate set him free on bail pending decision on revision by the Acting Chief Justice under s. 332(2) of the Criminal Procedure Decree.

Held: Section 43 of the Penal Decree requires written consent by the Attorney General for prosecutions under section 41. The proceedings are therefore quashed, with the prosecution at liberty to institute new proceedings properly.

ROAD TRAFFIC

113. Defences – Driving without proper licence – Emergency situation. Revision by High Court on question of sentence only – Court may review merits of case.

R. v. Abbasi Mohammed Comorian, Crim. Rev. 8-Z-67, 14/4/67, Kimicha Ag. C. J.

The accused pleaded guilty to driving without a proper licence. His uncle had gone to Dar es Salaam to receive medical treatment. The accused received a message that his uncle had arrived at the Zanzibar Airport, and that he was very sick and needed to be collected. Thereupon the accused took his uncle’s automobile to the airport to pick up his uncle and bring him to town, during which journey he was stopped by the police and found to be without a proper driving licence. The accused is a Post Office van driver. He holds a Government licence, which is issued free of charge to Government drivers, and which authorizes him only to drive Government vehicles. The accused was fined Shs. 100/-.

Held: (1) On revision, the High Court has the power to consider the merits of a case notwithstanding the fact that the accused pleaded guilty and the case came initially to the High Court for revision on the question of sentence only.

(2) The accused was faced with an emergency situation and it is hardly surprising that he drove to the airport without thinking about licensing technicalities. He was a competent driver; indeed, he made his living as a driver, so it cannot be argued that he was endangering the public safety. The High Court “did not think that any reasonable man placed in the situation of the accused of being required to meet a very sick man in a hurry would have behaved in a more reasonable manner than that pursued by the accused.” Conviction quashed.

(1969) H.C.D. ZANZ.

- 88 –

SENTENCE

114. Compensation – Acquitted accused ordered to pay for loss suffered by complainant. Mistake of fact as a defence.

R. v. Khamis Haji Bajun, Crim. Sass. 4-Z-67, 29/8/67, Kimicha Ag. C. J.

The accused was charged with casting away a vessel c/s 296(b) of the Penal Decree. Accused testified that he had committed “a shameful offence” at school whereupon he decided to leave Zanzibar and go to Tanga where he had relatives. He took the canoe of the complainant, thinking that it was his brother’s, and went to Bagamoyo. The boat of the complainant and that of the accused’s brother were usually moored next to each other; the complainant’s boat was in fact well cared-for in Bagamoyo, and was returned to him will before the trial.

Held: (1) “(A)ccused was suffering from a mistake of fact, that of mistaking the complainant’s boat for that of his brother”. This is a good defence in law, entitling the accused here to a full acquittal.

(2) The complainant incurred costs of Shs. 110/- in having the boat transported back from Bagamoyo, and in making some minor repairs after it was returned. The accused was ordered to compensate the complainant for these costs within 2 months.

115. Consecutive sentences imposed in separate trials for offences which could have been dealt with at one trial must not result in unduly severe sentence – Concurrent sentences substituted.

Aboul Iddi Milani v. R., Crim. App. 219-Z-66, 2/3/67, Kimicha Ag. C. J.

At one trial the accused was convicted on four counts of stealing by a person in public service, c/s 248(4) of the Penal Decree, and sentenced to 9 months’ imprisonment. These offences were committed between February and June of 1965. At a second and entirely separate trial, the accused was convicted on four other counts of stealing by a public servant, these counts arising from different thefts from those dealt with in the first trial. The second group of offences took place between May and June of 1965. At the second trial, the accused was sentenced to 9 months’ imprisonment on each count, sentences to run consecutively. Appeal here is from the sentences imposed in the second case only.

Held: (1) All the counts could have been, and should have been, combined and dealt with at one trial. Whether the separate trials were a matter of inadvertence or one of intention on the part of the prosecution, the sentencing of the accused was prejudiced by his being

(1969) H.C.D. ZANZ.

- 89 –

subject to separate trials. “(T)here is nothing illegal about what has happened; all I say is that the practice has been unfair to the (accused) in that ….. the court was able to impose a sentence which on the facts appears to be unduly severe.” (Citing Henry Julius v. Rex, Tanganyika Crim. App. 377of 1951, 1 T.L.R. 366).

(2) The sentences on the four counts at the second trial are ordered to run concurrently with those from the first trial, so that the accused will serve a total of 9 months’ imprisonment.

116. Corporal punishment, improper or offence of stealing unless accused is a male under 16.

R. v. Hamadi Ramadhani Mnyasa, Crim. Rev. 3-Z-64, 10/1/64, Horsfall J.

The accused was convicted of stealing c/s 248(1) of the Penal Decree, and given a sentence of corporal punishment. He was 20 years old.

Held: Stealing is not punishable with corporal punishment unless the accused is a male person under 16 years of age.

117. Corporal punishment – Improper for offences of stealing and receiving stolen property.

R. v. Khamis Suleiman, Crim. Rev. 2-Z-65, 13/1/65, Erokwu Ag. C. J.; R. v. Rashidi bin Khamisi, Crim. Rev. 5-Z-65, 21/8/65, Saidi Ag. C. J.

In these cases, the two accused were convicted of stealing c/s 248(1) and receiving stolen property c/s 284(1) of the Penal Decree, respectively. Both were given sentences involving corporal punishment.

Held: Neither offence is punishable with corporal punishment. Sentences altered accordingly.

118. Corporal punishment in assault cases – Reserved for assaults of grave nature.

R. v. Cliper bin Anasis, R. v. Suwelem bin Rashid, Crim. Revs. 7, 9-Z-65, 11, 14/10/65, Saidi Ag. C. J.

In these cases, the two accused were convicted of assault causing actual bodily harm c/s 224 of the Penal Decree, and given sentences involving corporal punishment. In Criminal Revision No. 9, the injuries were bruises and haemotomas, which the doctor testifying considered to be “slight harm.” (In Criminal Revision No. 7, the injuries were not specified in the judgment of the High Court). The High Court found that, in both cases, the injuries were not of a “serious of aggravated nature”.

Held: Corporal punishment is reserved, in assault cases, for assaults “of grave nature such as would cause dangerous harm or seriously injure health or permanently disfigure the victim or main the victim, such as cutting

(1969) H.C.D. ZANZ.

- 90 –

off the hands or legs or even the ears, serious fractures on any important part of the body or (injuries which cause) blindness or deafness or the like …..” Corporal punishment orders in both case quashed.

119. Effect of new legislation reducing sentence passed between time of original conviction and hearing of appeal by High Court. Evidence – Judicial notice taken that Government released prisoner sentenced under previous legislation.

Haji bin Khamis v. R., Crim. App. 245-Z-66, 10/3/67, Kimicha Ag. C. J.

The accused was convicted of stealing c/s 248(1) of the Penal Decree, on 28 October 1966. He was sentenced to 12 months’ imprisonment and 24 strokes, which at that time was the minimum permissible sentence for that offence. By Presidential Decree No. 18 of 1966, the minimum sentence for the offence here involved (as well as others) was reduced to 2 months and 24 strokes. Thereafter this case came on appeal to the High Court against conviction and sentence. The appeal against the conviction was dismissed as being without merit.

Held: had the accused’s case come up for trial a few weeks later, he would have been subject to only 2 months’ imprisonment instead of 12. “I am also a fact that many prisoners who were sentenced under the unamended minimum sentence were released by the 1^st Vice-President in the exercise of his prerogative of mercy.” In view of these considerations, “it is in the interests of justice that the (accused’s) sentence be reduced to the present minimum sentence.” Sentence reduced to 2 months’ imprisonment and 24 strokes.

(Editors’ note: The decision in Haji bin Khamis v. R., Crim. App. 269-Z-66, 31/12/66, Kimicha Ag. C. J.,

Is in accord with the decision summarized above. The texts of these cases make it clear that they involve different offences, and in all likelihood different accused, the name is not an uncommon one, and the offences involved were committed in Zanzibar town and in Wete, Pemba, respectively).

120. Fine – Accused’s income should be considered in determining amount to be paid.

Hassan Abdulla v. R., Crim. Rev. 20-Z-67, 7/12/67, Kimicha Ag. C. J.

The accused was fined Shs. 75/- on each 2 counts of violating the Road Traffic Decree, Cap. 135. He was a first offender, and he earned Shs. 4/60 per day.

Held: The fines imposed were too severe, in view of the accused’s circumstances. Fines reduced to Shs. 25/- on each count.

(1969) H.C.D. ZANZ.

- 91-

121. Fine – Imprisonment in default of payment – Six months maximum allowable.

R. v. Bachu bin Abdulrahmani Indian, Crim. Rev. 33-Z-66, 24/11/66, Kimicha Ag. C. J.

The accused was convicted of unlawfully possessing goods smuggled into Zanzibar, c/s 201(c) of the Customs Management Decree, Cap. 145. He was fined Shs. 500/- or 2 years’ imprisonment in default.

Held: The maximum term of imprisonment to which as accused can be sentenced in default of payment of any fine, no matter how large is 6 months. (Criminal Procedure Decree, Cap. 14, s. 309(1). A sentence of 6 months’ imprisonment substituted, no alteration being made of the alternative fine.

122. Fine – Payable in instalments.

Issa Mbarak v. R., Crim. App. 11-Z-67, 7/2/67, Kimicha Ag. C. J.

The accused was convicted of assault causing actual bodily harm, c/s 224 of the Penal Decree. He was sentenced to a fine of Shs. 400/-, or 3 months’ Imprisonment in default. The accused was given the option of paying the fine in instalments of not less that Shs. 50/- per month.

Held: The sentence was affirmed as was the order allowing the accused to pay in instalments.

(Editors’ note: The decision in abdulrehman Mohamed v. R., Crim. App. 70-Z-67, 28/3/67, Kimicha Ag. C. J., is in accord; in that case, the charge was of driving a motor vehicle on a road with a defective hand-brake, contrary to Regulation 26(9) of the Road Traffic Regulations, Cap. 135. The fine imposed there was Shs. 75/-, payable in 2 instalments).

Fine – Payable in instalments – Part of fine to be paid to family of deceased as compensation.

See case no. 96.

123. Forfeiture order – Burden of proof on Government to show that item to be forfeited was illegally obtained.

R. v. Mohamed bin Ali alias Mohamed, Crim. Rev. 25-Z-66, 23/11/66, Kimicha Ag. C. J.

The accused was convicted on four counts of obtaining money by false pretences, c/s 275 of the Penal Decree. In each instance he obtained Shs. -/50 (50 cents), or a total of Shs. 2/-. Upon arrest, the accused was found with Shs. 2/40 on his person. The trial magistrate ordered the wrongly obtained money to be refunded to its owners, with the unaccounted-for Shs. -/40 (40 cents) forfeited to the Government.

(1969) H.C.D. ZANZ.

- 92-

Held: It was neither proven nor alleged that the Shs. -/40 found in the possession of the accused was unlawfully acquired; therefore the order that it be forfeited to the Government was illegal. Forfeiture order set aside; money ordered refunded to the accused.

Material factor – Inconvenience to accused caused by magistrate’s error, occasioning 2 trials – should be considered in passing sentence.

See case no. 105.

Offence charged in single count – One sentence only – Concurrent sentences appropriate where two or more offences are committed in a single transaction such as breaking followed by stealing – However consecutive sentences appropriate for breaking followed by offence other than stealing.

See case no. 107.

124. Police supervision order – Conditions upon which order may be made.

Ali Said Shirazi v. R., Crim. App. 162-Z-67, 29/5/68, Kimicha Ag. C. J.

The accused, a first offender, was convicted of stealing agricultural produce c/s 248(3) of the Penal Decree, as amended by Presidential Decree No. 18 of 1966. in addition to a sentence of 2 months’ imprisonment and 24 strokes, the accused was ordered to police supervision for 2 months upon his release from prison.

Held: A person may be subject to a police supervision order only if (a) he is convicted of an offence punishable with imprisonment for a term of 2 years or more, and (b) he had been convicted on at least three previous occasions of offences punishable with such a sentence, and was, on at least two of these occasions, sentenced to imprisonment. The accused being a first offender here, he could not be subjected to a police supervision order. Order set aside.

(Editors’ note: The decision in R. v. Alli Iddi alias Haji Ali Iddi alias Katuni, Crim. Rev. 34-Z-66, 24/11/66, Kimicha Ag. C. J. is in accord. That case involved the conviction of a first offender for housebreaking and stealing c/ss 248(1) and 267(1) (a) of the Penal Decree).

125. Principles of punishment – Sentences for two accused should be identical unless variation supported by record R. v. Ali bin Risasi, Crim. Rev. 11-Z-65, 23/12/65, Saidi Ag. C. J.

The two accused were convicted of affray c/s 75 of the Penal Decree. Neither had a previous record. One was sentenced to 4 months’ imprisonment and the other to pay a fine of Shs. 75/- or serve 1 month’s imprisonment.

(1969) H.C.D. ZANZ.

- 93 –

Held: The sentence of the first accused is reduced to match that of the second accused since the record shows no reason for the variation.

Withholding of punishment where punishment is “inexpedient”.

See case no. 102.

THEFT AND RELATED OFFENCES

126. Breaking and stealing – Possession of stolen goods – A “reasonably probable” explanation of possession must be investigated.

Juma bin Kombo Mnyamwezi v. R., Crim. App. 144-Z-65, 4/1/66, ------- Ag. C. J.

The accused answered charges of breaking into a building to steal a hand cart by saying that the complainant’s child had lent him the cart. He had made this claim “from the beginning.” The accused did not call the child to confirm this, but the complainant admitted that the accused had borrowed the cart several times in the past.

Held: Although the accused might better have called the child as a witness, the burden is till on the prosecution to prove the charge. It has accordingly been held that “where an accused person has, before trial, given a reasonably probable explanation to account for his possession of stolen property, this explanation should be investigated and not rejected at the trial unless the prosecution can prove that it was untrue.” Conviction quashed.

127. Cheating .

Mohamed Salum Mzaramo v. R., Crim. App. 65-Z-65, 13/8/65, Saidi Ag. C. J.

The accused sold a tin of sand to the complainant with the pretence that it was sugar, a layer of sugar having been spread over the sand inside.

Held: The facts disclose the offence of cheating c/s 277 of the Penal Decree.

128. Conversion of goods entrusted to another by owner – owner must communicate desire to have goods returned.

Ali bin khamis v. R., Crim. App. 209-Z-66, 18/10/66, Saidi Ag. C. J.

The complainant handed a watch over to the accused, with instructions that the accused should sell it for Shs. 22/- No time limit was set within which the watch should be sold or returned. After about a month the complainant lodged a complaint with the police, which eventually led to the accused’s conviction of stealing the watch. The accused was not contacted

(1969) H.C.D. ZANZ.

- 94 –

by the complainant to find out what had become of the watch, or to demand that it be returned before the report to the police was made.

Held: as the accused was initially in rightful possession of the watch, the complainant having entrusted it to his care, and as no demand was not made for its return, nor any allegation made that the accused did not try in good faith to sell it, the accused can in no way be deemed to have stolen the watch. Conviction quashed.

129. Intention to commit an offence on premises is not required for conviction for criminal trespass.

Amour Muhammed Mazrui v. R., Crim. App. 98-Z-65, 30/12/65, Saidi Ag. C. J.

The accused had gone to the complainant’s house together with the co-accused (who did not appeal). They entered, evidently over the complainant’s objection. The accused was convicted of trespass c/s 272(2) of the Penal Decree, the charge alleging” intent to annoy” the complainant.

Held: Intention to commit an offence on another person’s premises is not required for a conviction of criminal trespass. It is enough that there was physical entry coupled with an intention to annoy the person lawfully in possession, as was charged here. Appeal dismissed.

130. Parties to offences – Theft by directions made to a child.

Mohamed bin Mahoud Mazrui v. R., Crim. App. 81-Z-65, 29/12/65, Saidi Ag. C. J.

The accused sent a child to pick 18 coconuts from a tree. When the child was arrested for this, the accused secured his release and undertook to make an account to the police for the cocoanuts. He was himself charged with stealing, and convicted. In his judgment, the magistrate referred to certain statements allegedly made by the accused to the arresting police officer, though the accused denied having made them.

Held: There was ample evidence to show that the accused had sent the child to pick the cocoanuts, and that he had later appeared for the boy and made an attempt to account for the cocoanuts, other than the improperly admitted “confession”. That evidence supports the conviction for stealing, and it therefore stands. Appeal dismissed.

131. Receiving stolen property – Recent possession of stolen goods – A “reasonable” explanation of possession must be investigated.

Nurdin Abdulhusein v. R., Crim. App. 17-Z-66, 12/5/66, Saidi Ag. C. J.

(1969) H.C.D.

- 95 –

The accused was convicted of knowingly receiving a stolen radio found in his possession soon after the theft. He said from the beginning that he had bought it innocently. There was no testimony by any of the police officers who gave evidence to show whether or not they had investigated this claim.

Held: It is important that the prosecution investigate any such claim, “in particular when (it) is made at the time of the arrest.” A radio might well pass from hand to hand within a short time. “The doctrine of recent possession operates strongly when there is no reasonable explanation of possession, but in this case the explanation …….. could not be rejected when it had not been investigated and proved false.” Conviction quashed.

132. Recent possession – Housebreaking.

Kondo bin Ali Mtumbatu v. R., Crim. App. 64-Z-65, 18/8/65, Saidi Ag. C. J.

Various articles of clothing were found concealed in several places in the accuseds house, fifteen days after they had been stolen from the house of the complainant. The accused was convicted of the original housebreaking and stealing c/ss 267 (a) and 248(1) of the Penal Decree.

Held “(T)he doctrine of recent possession was properly invoked in this case. The period of fifteen days is not a long one and the manner in which (accused) kept the clothes hidden ….. Demonstrates guilty consciousness.” Appeal dismissed.

133. Recent possession – Receiving stolen goods.

Saidi bin Juma Abrawy v. R., Hamond bin Suleiman Arab v. R., Crim. Apps. 79, 80-Z-65, 15/11/65, Saidi Ag. C. J.

The accused were convicted of receiving a stolen cow. It was found in their possession 1 month after the theft. (No other evidence was mentioned in the High court’s judgment.)

Held: There was ample evidence implicating the accused, and the magistrate was justified in finding them guilty of “receiving rather than stealing.” Appeals dismissed.

134. Recent possession – Shopbreaking and stealing.

Khamis bin Haji Mtumbatu v. R., Crim. App. 63-Z-65, 14/8/65, Saidi Ag. C. J.

A number of caps stolen from a shop were found 2 days later wrapped in a pillow case, under the accused’s bed. The accused was convicted of shopbreaking and stealing c/s s. 269(a) of the Penal Decree. The magistrate rejected his claim that they had been placed there by a police officer.

(1969) H.C.D. ZANZ.

- 96 –

Held: the accused had been found in possession of stolen goods, and “failed to account for his origin of possession.” The magistrate “was entitled to apply the doctrine of recent possession in this case.” Appeal dismissed.

Storebreaking and stealing – Charges may be, and usually are, set out in 2 counts – Consequences of setting out in 1 count. Sentence – Concurrent sentences appropriate for breaking followed by stealing – Consecutive sentences appropriate for breaking followed by offence other than stealing.

See case no. 107.

(1969) H. C.D.

- 97 –

CIVIL CASES

APPEAL

Retrial – Order for retrial ambiguous

See case no. 138.

Revision – District court may quash primary court judgment without hearing parties.

See case no. 138.

ARBITRATION

Misconduct of arbitrator – Inadmissible evidence admitted – Award set aside.

See case no. 141.

CONTRACT

135. Parties to contract – Whether receiver appointed with respect to company in receivership is the same “person” as original company. Waiver – Whether entry into fresh contract constitutes waiver of rights arising under old contract.

Hard Fibres Ltd. v. Tanganyika Electric Supply Comp. Ltd. Civ. Case 35-D-68, 14/2/69, Georges C. J.

The facts in this matter have been agreed and may be shortly summarized. The defendant companies have a licence under the Electricity Ordinance Cap. 131 to supply electricity in this country. They did in fact supply power to a factory operated by the plaintiff company under an agreement dated 7 March 1966. The plaintiff company failed to meet its bill and the supply was cut off on 2 October 1967. On 3 October 1968, the plaintiff company went into receivership. Mr. Nielson was appointed receiver by the National Bank of Commerce as holder of a debenture charging all the assets of the company. On 5 October 1967 Mr. Nielson on behalf of the plaintiff company signed an agreement with the defendant company for the supply of electricity. At the time of the signing of the agreement he stated that he had been appointed receiver by the Debenture Holder. Since the signing of the agreement of 5 October the defendant company has supplied power to the plaintiff company which has duly met all charges. There still remains due the sum of Shs. 9,670/- owing by the plaintiff company at the time the supply was cut off on 2 October 1967. This amount was not carried on a debit bill sent to the receiver but the defendant company is now pressing for payment of that sum and threatens to cut off the supply unless prompt payment is made. The plaintiff

(1969) H.C.D.

- 98 –

company threatens to cut off the supply unless prompt payment is made. The plaintiff company contends that they are not entitled to do this and in this suit seek an injunction to retrain them from so doing. Section 73(1) of the Electricity Ordinance Cap. 131 are cited by the defendant.

Held: (1) The question for determination is whether the “person” being supplied with electricity under the contract of 5^th October, 1967 is the same “person” who was being supplied under the contract of 7^th March, 1966. “I am of the opinion that it is the same person who is being supplied, and that person is the company – hard Fibres Ltd. A receiver appointed by a mortgagee under a power to that effect contained in a deed is an agent of the mortgagor. Jaffers v. Dickson (1866) LR 1 Ch. 4 p. 183 at p. 190 Lord Gronworth LC. When Mr. Nielson entered into the contract of the 5^th October, 1967 he was doing so as an agent of the company. The person being supplied under that contract was the same person, who was being supplied under the contract of 7^th June, 1967. Prima Facie, therefore, the defendant company would have the right to cut off the supply since there had been a failure to pay the sum of Shs. 9,670/- due from the company to the licence for energy supplied.”

(2) “It was argued that the position here was somewhat different in that the defendant company must be taken to have waived its right by reason of its having entered into a fresh contract and of its having submitted bills in respect of that contract which did not carry as a debit item the Shs. 9,670/- then admittedly due. I do not think that there has been any waiver in this case. There could be no waiver because it is clear that the company was not aware it could refuse to supply electricity to the receiver unless he paid the sum then owing by the company. This misapprehension was in part due to the circular letter sent out by the receiver which stated among other things that his appointment effectively prevented creditors from taking “action against the company in persuit of your claim until my appointment is terminated following the completion of repayment of the company’s liabilities to my appointers” ….. The position is therefore that the defendant was unaware of its legal rights on 5^th October 1967 when it entered into the contract with the receiver and never waived them. As soon as it was properly advised, it insisted that the debt be paid as early as 16^th October, 1967. In those circumstances the failure to submit bills with the arrears shown is not meaningful. I would agree that the contract of 5th October, 1967 was a valid contract. It was not entered into under any mistake of fact. The defendant company knew that it was entering into an agreement with the receiver. It did not clearly grasp that he was merely the agent of the plaintiff company. Although that contract is valid, the person to whom electricity is now being supplied is the same person who owes the defendant company Shs. 670/- and the defendant company is entitled to cut off the supply of energy unless that sum is paid”. Action dismissed.

(1969) H.C.D.

- 99 –

CUSTOMARY LAW

Land – Haya Law – Land sold in public auction by court order cannot be recovered by clan members.

See case no. 137.

Land – Haya law – Redemption of clan lands.

See case no. 140.

Land – Nyarubanja Tenure (Enfranchisement) Act – Transfers of enfranchised land void until rules made under Act – Primary Courts entitled to grant transferee use of land.

See case no. 139.

EVIDENCE

136. Custody of children after divorce – Islamic law – Welfare of children Paramount consideration.

Yasin Osman v. Kulthum Ali Kara.

Misc. Civ. App. 20-D-68, 19/3/69, Georges C. J.

“This matter is now before the High Court for the second time. On 14th June, 1968, I delivered a ruling on the issue as to whether or not the district court had jurisdiction to entertain an application by a divorced Muslim wife for the custody of the children of the marriage and their maintenance. I then held that the Court did have jurisdiction, though normally such suits should begin in the Primary Court. The action proceeded, and on 26^th October, 1968, the Senior Resident Magistrate, Dar es Salaam, delivered judgment awarding custody of all the children to the respondent [i.e. the wife], the females until the age of 9 and the males until the age of 7. He fixed maintenance at Shs. 300/- per month and ordered the appellant to pay costs. From this judgment the appellant has appealed.

Held: “There was much argument as to whether the law application in this case should be Islamic law or the ordinary law of contract. It was argued that the suit was framed as if in contract on a document signed by the appellant at the time of the divorce, in which he agreed that the mother should have custody of the children and that he should pay maintenance for them. ….. I do not accept this argument. In any event, my view is that Muslim law is applicable, because it is the personal law

(1969) H.C.D.

- 100 –

of both parties and it is also the law under which they were married and divorced. The point, however, is academic, because whether one applies Islamic law or the common law as received into Tanzania and adopted, the paramount consideration in all such matters is the welfare of the children involved. The matter was decided in Zanzibar as far as the Shias were concerned in Kassam Ladha v – Khatija binti Abdallah sheriff (1899) 1 Zanzibar Law Reports 98. There the custody of a female child who had reached the age of 7 was in dispute. The Judge gave custody to the mother, a divorce, holding that “Islam regards largely the interests of the child and especially that of a divorce”….. The parties there were Shias, but the law is the same with the Sunni sect. The Zanzibar case was quoted with approval in Abdul Wahid-v-Nabab Begum binti Hasandin (1933) 1 T.L.R. 570 …… The Judge held that even where the mother had agreed not to ask for custody, such an agreement was contrary to the policy of the law and unenforceable. In more recent times, Biron J., on 2^nd May, 1968, in Khadija d/o Abdallah –v- Saidi Omari (PC) Civil Appeal No. 89 of 1968, Dar es Salaam, held that in custody matters under Islamic law, the welfare of the child was the primary consideration. [See: (1968) H.C.D. n. 248]. The principle seems well established and is eminently sound. No reference is made to that principle in the judgment of the learned senior Resident Magistrate …. The decision appears to be based firmly on the Islamic rule that mothers should have custody of their male children till age 7 and their female children till age 9. There is good reason for thinking that this very rule is only a particular application of the general rule, since normally children of tender years need a mother’s care and attention, more than those who are capable of looking after themselves ….. I am satisfied that the learned Senior Resident Magistrate did not direct himself fully on the Islamic law on the question of custody”. Judgment set aside and retrial ordered.

ISLAMIC LAW

Family law – Custody of children after divorce – Welfare of children paramount consideration.

See case no 136.

LAND LAW

137. Auction by court order – Haya customary law – Land sold in public auction by court order cannot be recovered by clan members.

Paskazia d/o Lutahikirwa v. Felician Malilwa (Pc) Civ. App. 240-M-68, 27/1/69 Seaton J.

Bi. Paskazia the appellant in this case, was the original claimant in the primary court for the recovery of a family shamba which had been sold to the first two respondents in succession. It was first sold in December, 1958, for Shs. 577/- to the first respondent, Felician, at a public auction by order of the Kishanje

(1969) H.C.D.

- 101 –

court to satisfy a judgment debt of Shs. 577/- of Bi. Paskazia father. Subsequently, some time in 1959, part of the shamba was sold by Felician to the second respondent, Bushaija, who exercised his rights of ownership by entering the shamba and harversting its coffee crop. At the time of the auction sale in 1958, Bi Paskazia was a young girl of about 12 years of age. Because of her minority, she says, she did nothing to oppose the sale or to challenge Bushaija’s acts of ownership. Now aged 23, Bi. Paskazia has brought by relatives she would have no objections but as it was not, she wishes to refund the purchase-price of Shs. 577/- and recover the family shamba. The assessors in the primary court and he magistrate were all in favour of Bi. Paskazia’s claim, they being of the view that the auction sale in 1958 had not been property conducted. Bi Paskazia stated that her father, Lutahikirwa, had taken the sum of Shs. 577/- to Felican after the auction sale but the had refused to accept it. At the time of the sale Felician was one of the Vishanje court elders and the primary court seems to have been at least partly influenced by a feeling that he may or must have misused his position in purchasing the shamba.

The district court on appeal reversed the primary court decision on the ground that the challenge or objection to the auction sale is long overdue.

Held: (1) The Rules cited, by the district court i.e. The Magistrates’ courts (Civil Procedure in Primary Courts) Rules, (G.N. 310 of 1964) are not relevant as they cannot be applied retrospectively.

(2) (Up-holding district court on this point) the principle of Merchandse Mutangila vs. Nsubuga Zilimanya (PC) Civil Appeal No. 163 of 1968 (unrep.) applied. In that case the High Court at Mwanza held that the appellant could not succeed in his application to set aside an auction sale ordered by the primary court long after the matter had been completed. In the present case, the appellant seeks to challenge an auction sale completed some nine or ten years ago. Further, she seeks to do so on grounds which seem to indicate some confusion. I would endorse the observations of the learned district magistrate that

“It should be understood by the disputants that recovery of shambas in Bukoba concerns only those family clan shamba which are sold by their owner without the knowledge of the family clan. (Banyaruganda) as provided in Cory & Hartnoll paras 557 and 560. But as to those shambas which are sued in public auction by an shambas which are said in public auction by an order of the court, they cannot be recovered by any member of the family clan – this is in accordance with Cory and Hartnoll, Para 575.”

There is no evidence that Bi. Paskazia is entitled to bring this action even if the auction sale was irregular.”

(3) Appeal dismissed.

(1969) H.C.D.

- 102 –

138. Nyarubanja Tenure (Enfranchisement) Act – Does not exclude jurisdiction of primary courts.

Gosbert Mujumuzi v. Dihumulali Matonde, (PC) Civ. App. 253-M-68, 13/2/69, Seaton J.

The appellant successfully sued in the primary court to establish his ownership of a disputed plantation which he had given to the respondent to maintain and from which he alleged, the respondent had permitted unauthorized persons to take coffee berried and bananas. The respondent did not appeal but instead complained to the Area Commissioner, who sent a letter to the district court concerning the case. On the strength of the Are Commissioner’s letter, without hearing the appellant, the district court in exercise of its revisional jurisdiction, quashed the proceedings and ordered a trial “de novo unless it involves tenancy”. The reason for the district court order is stated as follows: - “As this case involves tenancy (Nyarubanja) I find that you ought not to have tried it because a case of such a nature does not come under your jurisdiction.”

Held: (1) “It would appear that the order for a re-trial is ambiguous. If the reason for quashing the proceedings was that the case involves tenancy, then a re-trial is prohibited by the condition attached by the district Court, i.e. “unless it involves tenancy”.

(2) “The powers of district courts in exercise of their revisional jurisdiction are set out in section 17 and 18 of the Magistrates’ Courts Act, Cap. 537. The provisions are not quite free from complexity but it would seem from section 18(3) of the Act that a district court may quash the proceedings of a lower court without first hearing the parties. If this interpretation is correct, then the appellant cannot complain of the procedure followed by the district court in the present case”.

(3) “However as to the substance of the district court’s decision, I can find nothing in the Nyarubanja Tenure (Enfranchisement) Act, 1965 which supports the proposition that in cases involving Nyarubanja tenancy the jurisdiction of the courts is excluded. For these reasons and in view of the ambiguous nature of the district court’s order, I would set it aside. The judgment and order of the primary court are accordingly restored.” Appeal allowed. However, leave given to the respondent to appeal from the judgment and order of the primary court to the district court within 30 days.

139. Nyarubanja Tenure (Enfranchisement) Act – Transfers of enfranchised land void until rules made under the Act – Primary court entitled to grant transferee use of land.

Issa Tasilima v. Sefu Ranyamigala, (PC) Civ. App. 224-M-68, 27/1/69, Seaton J.

(1969) H.C.D.

- 103 –

The appellant Issa claimed in the primary court for a shamba. It appears from the evidence that the shamba is in the occupation of the respondent, Bi Sefu, as a “Mtwarwa” i.e. Nyarubanja (feudal) tenant. Issa claims the shamba as land lord, basing his claim on the order of Lukiko Court Kanzi in Civil Case No. 7/61. In that earlier case, Issa had sued a minor one Julius, to vindicate his ownership of the shamba and the court ordered that Issa should look after and utilize the shamba until 1968 when Julius would have attained the age of 20 years; if by then Julius did not file any claim, the shamba would belong to Issa outright. The primary court, while not disputing Issa’s title as landlord, held that by virtue of the Nyarubanja Tenure (Enfranchisement Act) of 1965, the shamba would rest in the person cultivating and maintaining it, whom the court found to be B. Sefu. Judgment was accordingly given upholding her claim. On appeal, the District Court upheld the decision and from that decision, Issa brought a second appeal to the High Court. About the facts of the case there is o dispute. Prior to 1959 one Zacharia had sought and obtained permission to live in the shamba. After his death in 1959, Zacharia’s sister, Bi. Nyamishwa, who had lived with him on the shamba, continued in occupation until 19 March 1965. On that date came into operation the Nyarubanja Tenure (Enfranchisement Act. After the coming into operation of the Act, Bi. Nyamishwa continued living on the shamba until her death in January, 1967, leaving Bi. Sefu in possession of the shamba. Prior to her death, in September, 1966, Bi. Nyamishwa, who had no relatives, made a will purporting to bequeath the shamba to Bi. Sefu who apparently had assisted Bi. Nyamishwa during her lifetime and during her illness.

Held: (1) “Section 7 (1) of the Act provides for the making of rules by the local authority prescribing the terms and incidents of tenure of enfranchised land. Section 9(3) makes void any transfer or disposition of enfranchised land between the commencement of the Act and coming into operation of the first rules made under section 7. No such rules have been made. The 1966 will of Bi. Nyamishwa was accordingly of no effect as far as the disputed shamba is concerned and its non-acceptance by the lower courts was justified”.

(2) “The lower courts ordered that Bi. Sefu should continue to cultivate and maintain the land until rules have been made by the local authority, at which time any person feeling he has a right to the shamba may file a claim. It is to be observed that this is the result desired by Bi. Nyamishwa though it flows not from the will but from the fact that Bi. Sefu is the person appointed by a court of competent jurisdiction under section 9(1) of the Act”.

(3) The primary court had jurisdiction to make the order it did. Such jurisdiction was not unreasonably exercised. Appeal is dismissed.

(1969) H.C.D.

- 104 –

140. Redemption of clan lands – Haya customary law – Original owner has right to claim land redeemed by relative on payment of redemption price – Time – limit of 12 years.

Ignace Kasaula v. Oscar Kazaula (PC) Civ. App. 9-M-69, 14/2/69, Seaton J.

The appellant Ignace was the successful defendant in a case brought by the respondent Oscar in the primary court claiming a clan shamba. Oscar and Ignace are related. They have the same father but different mothers. Oscar claimed that in 1955, he sold to one Sydion his shamba together with a house thereon. Subsequently another relative, Gabriel, instituted proceedings for redemption of this shamba which was heard by the Gombola Court. As a result of this case, the shamba was ordered to be given up by Sydion and Oscar was ordered to refund to Sydion. Thereupon Ignace occupied the shamba whilst Oscar strove to acquire the money to repay him. By now, the house has been destroyed in part by Igance and in other parts ruined. In this suit, Oscar claimed the fight to possess the shamba on payment of the value of the undeveloped land to Ignace. The defence was that the shamba and house were re-purchased by Ignace from Sydion to whom Oscar had sold it. Neither party called witnesses. Ignace produced three documents relating to a sale by Oscar of other shambas he had inherited. He also produced a document purportedly signed by Sydion acknowledging receipt by him of the sum of money in respect of a shamba and house. The assessors and the magistrate of the primary court found that Oscar had sold the shamba and house to Sydion in March, 1952 and there had been are-purchase by Ignace from Sydion in September, 1956. Since Oscar had been out of possession for over 12 years, in fact 16 years, the primary court disallowed his claim and gave judgment for Ignace. The district court on appeal reversed this judgment. The learned magistrate based his decision on the grounds: (1) that the document exhibit B stated that Ignace had repaid Shs. 3, 152/50 for redemption of the shamba (“amekomboa”) not for its re-purchase; (2) that there is no time-limit for the redemption of clan lands by relatives within the same clan; and (3) even if there was a time-limit of 12 years, as the primary court had found , it was less than 12 years since Ignance had occupied the shamba. The learned magistrate held there was no evidence to support Oscar’s contention that he had repaid Shs. 5,000/- to Sydion and ordered that Oscar should regain the shamba on repayment to Ignace of Shs. 3,152/50. The district court’s judgment was based on paras 562 and 567 of CORY AND HARTNOLL’S CUTOMARY LAW OF THE HAYA TRIBE which state as follows: “562. The plantation [i.e. which is redeemed] is thus returned to the family and becomes the property of the man who repays the purchase price. 567. At any time the original owner or his direct male descendants have the right to claim the return of the plantation from the relative, or the descendants of the relative who redeemed it,

(1969) H.C.D.

- 105 –

on payment of the redemption price. Any hardship to the present occupier incurred by his dispossession is not considered.”

Held: (1) “It would seem that the learned magistrate has correctly applied the law as set out in CORY AND HARTNOLL, but Ignace in his petition of appeal, has asked this Court to set aside Para 567 of CORY AND HARTNOLL “because it is useless and old”. He submits that to permit the repossession by the original owners of shambas at any time after their redemption is to “recognize the lawlessness committed by persons such as Oscar”. The rule of customary law set out in Para 567 of CORY AND HARTNOLL has been set aside b the Magistrates’ Courts (Limitation of Proceedings under customary Law ) Rules, 1964, which prescribes a time-limit of 12 years for proceedings to recover possession of land. This period is deemed to commence from the date a right of action occurred on the date of the coming into operation of the said Rules, whichever is the later. As the Rules came into operation in 1964, it is clear that the Primary Court misdirected itself in holding that Oscar’s claim to possession was time-barred in 1968”.

(2) “It is noted in Para 564 of CORY AND HARTNOLL that the buyer is entitled to compensation for any improvements he has made. There is nothing to suggest that under customary law the relative who has redeemed in good faith is in any worse position than an innocent purchaser. I would accordingly uphold the judgment and award of the District Court with the clarification that in addition to the refund the money paid by Ignace he is the receive compensation for any unexhausted improvements he has made to the shamba since redeeming it.”.

(30 Appeal dismissed.

SALE OF GOODS

141. Payment – Confirmed credit – Time for opinion credit.

Ghankurh Vilas Cashew Indurstries v. Hadman Kasim and Comp. Ltd. Civ. Case. 10-D-65, 19/3/69, Georges C. J.

This is an action for damages for breach of contract to deliver two shipments of cashew nuts. The plaintiffs are a firm in Quilon, Indian, who placed the order. The defendants are a Tanzanian company who then dealt in cashew nuts. The contracts were in writing, both dated 21^st October, 1963. In both contracts, delivery date was October, /first half of November. Payment in both cases was to be by irrevocable letter of credit for full invoice value of the goods to be opened by buyers guaranteeing payment of 95% of invoice value against shipping documents, the balance of 5% after delivery and adjustment of accounts, but in any event not later than one month after delivery of the goods. The goods were never delivered. The plaintiffs claimed damages of Shs. 42,000/-, the difference between the purchase price and of Shs. 42,000/-, the difference between the purchase price and the date of non-delivery and the contract price. The plaintiffs

(1969) H.C.D.

- 106 –

alleged that the letters of credit had been opened as agreed. The Statement of Defence denied this and put the plaintiffs to strict proof thereof. The defendants denied being in breach of the contract. There was no reply. The matter was eventually referred to arbitration by two persons – one appointed by each of the disputants, or, in case of their failing to agree, to the determination of any umpire appointed by them. The facts did not appear to be seriously disputed. The plaintiffs up to 5^th November, 1963, and not yet opened letters of credit for payment for the shipments which were not delivered. The defendants cabled them warning that the business would be cancelled if the credits had not been opened by November 7^th. On November 9^th the defendants cabled that they were increasing their credits immediately to cover the 300 tons in dispute. On November 9^th the plaintiffs did open credits with the United Commercial Bank Ltd. Bombay. On November 13^th the defendants were notified that the credit had been opened. They had already dispatched a cable dated November 9^th stating that they regarded these orders as cancelled. There was only one ship sailing before November 15^th by which the goods could have been shipped, closing date for expert papers for which was November 11^th. The plaintiffs led evidence that it was a practice in cashew nut business that credits were to be opened after confirmation in writing had been forwarded to the buyers at Quilon. This took time and often credits were opened after shipment had been effected. It appeared that there had been three other contracts between the parties which had been carried out. In two instances, the letters of credit had been opened after the goods had been shipped and in one case only the day before. The arbitrators disagreed as to what the award should be. They noted the case of Pavia & Co. S. P. A. v. THURMANN NELISEN [1952] 1 All E. R. 492. In that case also there was a sale of goods, vendor. Payment was to be made by irrevocable letter of credit. Somervell, L. J. in his judgment at page 494 stated – “When a sailor is given a right to ship over a period and there is machinery for payment, that machinery must be available over the whole of that period. If the buyer is serious, as he might be if the period of shipment is a long one, not to have to put the credit machinery in motion until shortly before the seller is likely to want to ship, then he must insert some provision in the contract by which the credit shall be provided, e. g. fourteen days after a cable received from the seller.” One arbitrator held that the law was clear that the buyers had not performed their part of the contract and were in breach. The other held that because of the practice in the cashew nut business, the plaintiffs were not in breach. The arbitrators could not agree on an umpire and eventually one was appointed by the Court. He considered all the evidence taken by the arbitrators, including that on the question of practice and what had happened in the three performed contracts. He held that the plaintiffs were not in breach and awarded damages in the sum of Shs. 28,000/-. This led to the present application to set aside the award on the ground of misconduct by the arbitrator. The only ground seriously pressed was that the arbitrator had clearly. Considered inadmissible evidence in arriving at his conclusion.

(1969) H.C.D.

- 107 –

Held: (1) “It seems agreed on both sides, and indeed I do not think that it could be disputed, that it would be misconduct in the legal sense on the part of the arbitrator to admit inadmissible evidence and to base his decision on that evidence. I am satisfied that the umpire and one arbitrator based their views on the issue of the practice in the cashew nut business.”

(2) “No East African authority has been cited to on the issue of the time when letters of credit must be opened to pay for goods which may be shipped over an agreed period. I would, however, accept the view of the Court of Appeal in Pavia’s case as sound and adopt it. In any event, in matters of international commercial practice uniformity is highly desirable. As Somervell, T. J. has so cogently argued, it is always open to the parties to make a special bargain by imposing on the seller the obligation to notify the buyer of the date of shipment and fixing the date of the opening of the letter of credit from that. The plaintiffs on that view of the law are clearly in breach. They did not open their letter of credit until November 9^th – and the seller was not informed until November 13^th when in fact it was not possible to ship within the contract period”.

(3) “It is my view that evidence as to the usage in the cashew nut business was wrongly admitted. The plaintiffs did not plead usage. The relevant paragraph of the pleading reads: “In accordance with the terms and conditions of the aforesaid two contracts, the plaintiff duly opened letters of credit to enable the defendant to effect shipment of the gods within the contract period.” The defendants denied that that was so and put the plaintiffs to strict proof of this matter. There was no reply t the defence. The law touching usage is quite complicated. Usage must be notorious, certain, reasonable and legal. These are matters requiring thorough investigation, which is only possible when the issue is clearly raised between the parties, so that each can come, prepared to battle on that ground. In this case the reference was made by order of the Court, but the issues between the parties had been settled by the pleadings. The questions to be answered by the arbitrator arose squarely on the pleadings. Evidence of usage was, therefore, inadmissible because it had not been raised and there was nothing on the record to show that the parties by agreement added this as an issue to be tried.”

(4) “I do not agree with the contention that the usage, if it had been pleaded, could not have been proved by parol evidence. Such evidence would not, in my view, contradict the terms of the contract. To refer again to the judgment of Somervell, T. J., it would be permissible to draft a payment clause as in this case with a proviso that the credit used not be opened until fourteen days after notification that the goods are ready for shipment. If there were proved such a notorious and certain usage in the cashew nut business, I can see no reason why it should not be enforced. The point is, however academic

(1969) H.C.D.

- 108 –

In this instance, as I am satisfied that the evidence was wrongly admitted on other grounds.”

(5) Award set aside.

SUCCESSION

142. Wills – References to money held in specific bank accounts cannot be construed as applying to money in other bank accounts.

In the matter of Antonio Natalicchio, Prob. And Admin. Cause 64-D-65, 9/4/69 Hamlyn J.

“The testator, Antonio Natalicchio of Morogoro, died in that town on 26^th July, 1965 having some five years before his death executed two wills. He adopted this mode of disposing of his estate as he had, at the time that the wills were drawn, two separate bank accounts, one being in the Standard Bank, Dar es Salaam and the other in Barclay’s Bank, Dar es Salaam. Each will dealt with a separate account and save for this and for a divergence which appears later, the two wills were identical; both were executed on the same date and disposed of his property in such accounts in the same manner. Subsequent to the execution of he wills and at some time during the five years thereafter which preceded his death, the testator opened a further account, a savings-account in the Standard Bank, Morogoro, which now has a credit balance of Shs. 593/75. On 17^th July, 1964, he also made a payment to the same bank as a fixed deposit account, which presently has a sum of Shs. 9,000/- as a credit to the estate. Neither of these two latter accounts is mentioned in the two wills. The dare s Salaam account in the standard Bank was subsequently closed by the testator, who deposited the proceeds in a current account in the same bank; this he drew upon during his life-time until the credit was exhausted and the account was finally closed. The Barclay’s Bank account was also closed by the testator, who transferred all the monies there in to the Standard Bank current account, but thereafter placed the money so transferred on fixed deposit in the same bank. At the date of his death therefore, the testator had in his name the two Morogoro accounts and also the Standard Bank, Dar es Salaam fixed –deposit account. The learned Administrator General, who seeks the directions of his court in this matter, has drawn my attention to one matter which raises a difficulty in respect of the deposit account in the Standard bank, Dar es Salaam. The two wills of the deceased, as I have noted earlier, are not completely identical …. The Barclay’s Bank will (if I may thus speak of it) deals with “all money, interest and property now held by me on Barclay’s Bank, Dar es Salaam and all money, interest and property that shall be my due in the future in the aforesaid bank”. …. The Standard Bank will (to use a similar convenient phrase) specified “all money, interest and property now held by me in the standard Bank, Dar es Salaam and all interest that shall be my due in the future in the aforesaid bank. That is, the testator has seen fit to deal with all future “money, interest and

(1969) H.C.D.

- 109 –

property” in Barclay’s Bank, Dar es Salaam, while in the case of the Standard Bank, Dar es Salaam he has referred only to future interest. As a result of the testator’s financial transactions prior to his death, the dare s Salaam Barclay’s Bank account has ceased to exist and the Administrator General now seeks directions as to the monies lying in the two Standard Bank Morogoro accounts and also the principal money on fixed deposit in the Standard Bank, Dar es Salaam; interest in respect of the letter account is already the subject of the Standard Bank will”.

Held: (1) “Now in so far as the Morogoro monies are concerned, both wills are entirely silent, for these accounts were brought into existence after the two wills were executed. Section 24 of the English Wills Act, 1837 reads: “Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will”. I do not think that any doubt can exist but that the English Act applies in matters of this sort and Section 2(2) of the Judicature and application of Laws Ordinance, 1961 appears to govern the matter. It is clear that when the wills speak of money, interest and property in the two Dar es Salaam Banks, those expressions cannot have reference to the Morogoro accounts. It is immaterial that, at the date of the execution of the wills, there was money deposited to which the expressions would have reference. It is also immaterial that the testator before his death may have transferred monies from one of the Dar es Salaam accounts to Morogoro. Re. Gillins: Inglis v. Gilins (1909) 1 Ch. 345 makes it clear that interpretation of the wills must be as at the date of the death of the testator and not otherwise. And as Wood V.C., in Goodlad v. Burnett 6 (I.K. & K. 341) observed, “Testator must be taken to know the wills Act.” The wills are not sufficient to pass the new thin which the testator acquired and there is ad emption – Lane: Loard v. Lane (1880) 14 Ch. D. 856. The test is as to whether the property at the date of the death is “substantially the some thing “ as that spoken of in the will. I do not think that by any stretch of imagination could monies lying in the Dar es Salaam Bank be retrograded as substantially the some as other monies lying in the Morogoro Bank. While a bequest of money is ordinarily a general legacy, it may be specific and the fact that in the instant case the particular accounts were referred as being liable for the payments would appear to render the legacies specific ones. There are, it is true, conflicting decisions on this class of gift, but he circumstances and wording of the two wills do not enable me to hold that the testator, having made clear general gifts, merely pointed out particular funds which would be primarily liable, on failure of which the general personal estate would remain liable. I consequently find that the Morogoro account cannot be utilized as a source of payment of the Dar es Salaam bequests”.

(1969) H.C.D.

- 110 –

(2) “In so far as the Standard Bank deposit account is concerned, the will concerned bequeaths future interest only and not future principal. The testator in that document spoke of “all money, interest and property now held by me in the Standard Bank, Dar es Salaam and all interest that shall be my due in the future in the aforesaid Bank”. While the introduction of the word “now” into a testamentary document has never been construed so as to produce an intestacy, the circumstances of the present case are somewhat different from the run of English decisions, for the testator here uses the word in respect of property which has wholly ceased to exist and was subsequently replaced by other property from a different source, while the future property concerns interest only. The bequest as to the principal amount fails under the will and any interest that may have accrued in the Dar es Salaam Standard Bank savings account will pass under the legacy in the Standard Bank will.”

(1969) H.C.D.

- 111–

CRIMINAL CASES

ADMINISTRATION OF JUSTICE (OFFENCES AGAINST)

143. Contempt of court – Wrongfully retaking possession of land or other property – Does not cover taking of trees – Judgment defied must be more recent that 8 years ago.

Rwelamila s/o Kaijage v. R. (PC) Crim. App. 9-M-69, 16/1/69, Mustafa J.

Appellant was charged with contempt court c/s 114(1) (h) of the Penal Code in the primary court, convicted and sentenced to 4 months imprisonment and ordered to pay Shs. 250/- as compensation. His appeal to the District Court having been dismissed he now appeals to this court. Appellant out down some trees from a shamba which belongs to complaint. It appears appellant and complainant’s father had a disputed about the said shamba a long time age, and that in 1960 it was finally decided the subject shamba belonged to complainant’s father Appellant then knew the boundaries of the shamba and who was adjudged the rightful owner. Complainant succeeded to the shamba on her father’s death in October 1967. A few days prior to the death of complainant’s father appellant apparently entered on the said shamba and cut down 48 trees. Appellant was charge with theft of the trees in Katoma Primary Court and was duly convicted. The District Court on appeal quashed the conviction of theft and directed that appellant be charged with contempt of court c/s 114 (1) (h) Penal Code. Appellant was then charged with and convicted of an offence c/s 114 (1) (h) Penal Code in the primary court.

Held: “In his appeal before me appellant alleges the evidence adduced does not establish an offence c/s 114 (1) (h) has been committed. I agree. The said subsection reads: “Any person who …. Wrongfully retakes possession of any land or other property from any person who has recently obtained judgment from a court for the recovery of possession of such land or property.” Here there is no evidence of retaking possession any land, nor has the judgment been obtained “recently” – the judgment was obtained about 8 years age. I would have though the Katoma primary court was justified in convicting appellant of theft of the trees, assuming appellant cut down and removed the trees growing on complainant’s shamba.” Appeal allowed.

ASSAULTS AND RELATED OFFENCES

Grievous harm – Imprisonment inappropriate for offence

See case no. 151.

(1969) H.C.D.

- 112 –

Unlawful wounding – sentence of 12 months excessive in view of provocation and slight nature of wounds.

See case no. 154.

EVIDENCE

Burden or proof – Immigration Act and Regulations – Burden of proving facts leading to exemption falls on accused.

See case no. 145.

Pleas – Guilty plea – Presumption that charge was correctly explained to accused despite complexity of charge.

See case no. 145.

144. Witnesses – Child of tender years – Proper procedure to be followed. Appeal – Where evidence of child – witness improperly admitted, conviction is sustainable only if other evidence is sufficient, Procedure – alternative verdicts – Undesirable to substitute conviction for cattle theft on appeal for robbery conviction because Minimum sentences Act would then apply.

Lubundki Mkaga s/o Malunde v. R., Crim. App. 876-M-68, 31/1/69, Seaton J.

The appellant was convicted of robbery c/s 286, Penal code, and sentenced to two years imprisonment with 24 strokes corporal punishment. It was averred that the appellant stole 15 head of cattle and immediately after stealing them shot an arrow at the herdboy in order to obtain them. The conviction was based on the evidence of the herdboy, P.W. 1, who was aged 10 years. He gave his evidence unsworn apparently because the magistrate considered that this is the common practice for children of tender years.

Held: “In accordance with section 152(3) of the Criminal Procedure Code which is to the same effect as section 127 (2) of the Evidence Act 1967, the learned magistrate should have ascertained by a voir dire examination before P.W. 1 entered upon his evidence, whether he understood the nature of an oath. If P.W. 1 did, he should have been sworn. If he did not, the learned magistrate should then have proceeded to satisfy himself as to P.W. 1’s intelligence and understanding of the duty of speaking the truth. Only after being satisfied on these matters – and recording his satisfaction in the record of proceedings – should the learned magistrate have received P.W. 1’s evidence unsworn or un affirmed. In the present case, it is clear from a perusal of the record that P.W. 1 was a highly intelligent boy and that his evidence was given in a clear and responsible manner. Nevertheless, learned State Attorney has submitted the conviction should be quashed as the evidence of P. W. 1 was admitted without the prescribed preliminaries.

(1969) H.C.D.

- 113 –

being followed by trial court. The problem of child witnesses has persistently troubled courts in East Africa. {The court here reviewed the following cases: Nyasani s/o Bichana v. R. (1958) E.A. 190; Erukana Kyakulagira v. A. –G. (1959) E.A. 152; Gabriel s/o Mahali v. R. (1960) E.A. 159; and Fransisco Matovu v. R. (1961) E.A. 260]. It is, I think, clear from the preceding brief review of East African precedents, that a conviction may be sustained, despite the non-compliance with statutory rules for the admission of the evidence of child witnesses, proved there is other sufficient evidence to support the conviction. Was there such evidence in the present case? The only other evidence is that of P. W. 1’s elder brother, P.W.2, who was an adult and gave evidence on affirmation. P.W. 2 testified that after receiving a report of the robbery from P.W.1, he followed him to the scene where he saw the appellant armed with a knife, how and arrows driving the cattle away ……. Learned State Attorney concedes that while he evidence of P.W. 2 could suffice as corroboration had the unsworn evidence of P. W. 1 been properly admitted, it is insufficient of itself to support a conviction for robbery. With respect, I would agree. I have given consideration to the possibility of convicting the appellant of the minor offence of theft, but since the property involved is cattle, the offence would automatically fall within the province of the Minimum Sentences Act and result in a longer term of imprisonment than that imposed for the present conviction for robbery …. In all the circumstances, it appears that the interests of justice will best be served by a re-trial.” Appeal allowed and retrial ordered.

IMMIGRATION

145. Failing to report entry to Immigration Officer – Unlawful presence in Tanzania – Somalis normally resident in Kenya exempt under certain conditions – Burden of proving facts leading to exemption falls on accused. Evidence – Guilty plea – Presumption that charge was correctly explained to accused despite complexity of charge. Sentence – Fine – Must bear relation to financial resources of accused. Imprisonment in default of fine – Relationship to maximum prison term imposable.

Ahmed s/o Osmani v. R. Crim. App. 383-D-68 14/8/68, Georges C. J.

The appellants were charged with failing to report entry to an Immigration Officer, c/s 15 (1) and 26 of the Immigration Regulations, 1964, and being unlawfully present in Tanzania without a permit, c/s 23 (1) (i) of the Immigration Act, Cap. 534. They are described in the charge sheet as male Somalis. It was stated that an officer of the Immigration Section, Dodoma, had seen the appellants in the town on the 22^nd June, 1968. He had questioned them about their immigration states, and none of them had any document concerning their stay in Tanzania. They were convicted on their own pleas. The magistrate held that the offence was a serious one and ordered each appellant to pay a fine of Shs. 1,000/- on the first counts.

(1969) H.C.D.

- 114 –

with an alternative of four months imprisonment, and Shs. 1,500/- on the second count, with an alternative of nine months imprisonment. The appellants were not able to pay the fines and were imprisoned, serving a sentence of thirteen months.

Held: (1) “Section 2 (1) (b) removes Africans from the application of the Act. Section 2 (4) defines an African as A person not being a citizen of Tanganyika, who is a member of a tribe indigenous to Tanganyika, Kenya, Uganda, Zanzibar, Mozambique, Zambia, Southern Rhodesia, Nyasaland, Burundi, Rwanda or the Congo Republic (Leopoldiville) and includes a Swahili but not a Somali (other than a Somali who is normally resident in any of the foregoing countries).” Mr. Kanabar, therefore, argued [for the appellants] that it was incumbent on the Republic to allege in their statement of facts that the appellants were not exempted under he provisions cited above. It should be noted, however, that subsection (2) (a) of section 2 confers upon the Minster- “power to provide for the control of immigration of Africans ……” The Minister has made much regulations, and, indeed, it is under these regulations that the first count has been laid. The issue, therefore, as to whether or not the appellants can be guilty of an offence under the regulations must be decided by the regulations themselves and not by the Act simplicita. Regulation 15 (1) …. Provides: - “Every person entering Tanganyika shall on his arrival, without undue delay, present himself in person to an Immigration Officer …. Regulation 24 reads: - “(1) Subject to the provisions of regulation 25, regulations 15 and 21 shall apply to citizens and Africans as they apply to other persons. (2) Subject to the provisions of regulation 25, a citizen or African shall, if so required by an Immigration Officer, sign the prescribed form of declaration on entry.” Regulation 25, however, provides:- “Nothing in regulation 24 shall apply to – (a) a citizen or African who enters Tanganyika directly, without any transit stoppage elsewhere, form Kenya, Uganda, Nyasaland or Northern Rhodesia ship: or (ii) an Immigration Officer specifically requires him to comply with such regulation.” In stating the facts, the prosecution did not state whether or not the appellants were normally resident in Kenya, from where they said they come, nor did they allege that they had entered by aircraft or seagoing ship, nor that they had been specifically required by and immigration Officer to comply with that regulation 15. It appears to be implicit in the facts that they had traveled overland directly from Kenya to Tanzania If, therefore, they were sommalis normally resident I Kenya, the regulation would not apply to them, and they would not be guilty of any offence. The question is whether or not the prosecution should in the statement of facts have specifically stated circumstances to show that the regulation was applicable to them. Section 22 of the Act provides:- “Whenever in any proceedings under or for any of the purposes of this Act any one or more of the following questions is or are in issue, namely – (a) whether any person is or is not a citizen of Tanganyika; or (b) whether any person is or is not an African within the meaning of this act, the burden of proof that such person is a citizen of Tanganyika or an African, as the case may be, shall be upon

(1969) H.C.D.

- 115 –

The part contending such person is a citizen of Tanganyika or an African, as the case may be.” The appellants in this case would be exempted from the Act if they were Somalis normally resident in Kenya, and if they had traveled directly overland without stoppage from Kenya; if it could be shown that they were Somalis normally resident in Kenya, and then they would be Africans within the meaning of the act. It could be said, therefore, that the question as to whether or not they were Africans was in issue in the charge. The burden of proving that they were Africans would, therefore, fall on the appellants. Mr. Kanabar has urged that though this is so, where there is a plea of guilty, it is incumbent on the prosecution specifically to allege that the appellants were not Africans, and that, therefore, Act was applicable. I find this contention difficult to accept. If the burden of proof is on the appellants, then the Republic has to alleged nothing. The matter is dealt with generally in the Evidence Act, section 14 …. Mr. Kanabar agreed that it could logically be deduced from his proposition that though the prosecution would be under no obligation to lead evidence to establish that the appellants were not Africans if the appellants had pleaded not guilty, nonetheless, it was essential that they should aver that fact in a case where the accused person has pleaded guilty. Any proposition which could lead to such a result must clearly be faulty. In my view, the difficulty in this case arises because of the complexity of the charge, and one may very well be tempted to doubt whether its implications were all carefully explained to the appellants before their plea was taken. If, however, the charge were carefully explained, then no hardship would be caused. The accused person would be told that if he could show that he was a Somali normally resident in Kenya, and if he could show that he had come into Tanzania directly overland from Kenya and not by ship or aircraft, and that he had not been specifically required by an Immigration Officer to report, then he would not be guilty of the offence. If, thereafter the accused said that he was guilty and accepted as true facts such as those stated in this case, I have absolutely no doubt in my mind that the conviction would be quite correct …… It has, however, been clearly noted on the record that the charges were read and explained. This has not been challenged, and I do not think that I am entitled to assume that the whole situation was not properly explained to the appellants in the manner suggested above. Accordingly, their convictions on their plea on the first count are good and are affirmed.

(2) “On the second count, it is the Act itself which is involved and not regulations made under the Act. The situation, however, is precisely the same, because again section 2 specifically exempts Africans from the portion of the Act, and therefore section 23 would not apply to the appellants if they were Africans. Section 22, however, places the burden of proving that fact on them, and consequently there is no obligation on the Republic to aver in their statement of facts that the appellants were not Africans. It would, however, be incumbent on the magistrate carefully to explain to the accused persons that

(1969) H.C.D.

- 116 –

they could defend themselves by leading evidence which would satisfy him on the balance of probability that they were Somalis normally resident in Kenya. Once that fact had been properly explained, then a plea of guilty based on the statement set out in the record is supportable. The appeals against conviction are, therefore, dismissed.”

(3) “I am satisfied, however, that the sentences in this case are excessive ……. As has been stated over and over again, the court which decides to offer an accused person the alternative of paying a fine should attempt some assessment of his means in order to make the option meaningful. In the charge sheet, the occupation of each appellant is described as “Nil”. There was nothing to indicate whether or not they were able to pay what was in total a fairly substantial fine – Shs. 2,500/-. In fact, they have not been able to do so. To impose a fine which is so high as to be clearly beyond the means of the accused person is to engage in a futile exercise. Worse still, it places the accused person at a disadvantage as the terms of imprisonment to be suffered if the fine is not paid must necessarily be consecutive, whereas if terms of imprisonment are imposed, without the option of a fine, they can be made concurrent. Had the magistrate not imposed a fine in this case, but had decided to send the appellants to prison, it is doubtful whether he would have made the terms consecutive, as clearly both offences arise out of a single act …… Mr. Kanabar also argues that even if the fines were appropriate, the alternative bear in relation to the maximum term the same proportion as the fine imposed to the maximum fine. I find this proposition difficult to accept. In any event, a Court does have the power to impose both a fine and imprisonment, and for that reason, if for none other, it is clear that there need be no relationship of a proportional nature between the fine and the alternative term of imprisonment and the maximum fine and the maximum term of imprisonment. I am satisfied, however, that a term of imprisonment of thirteen months for these offences is altogether too severe. Accordingly, I shall vary the sentence on the first count in the case of each appellant to a fine of Shs. 200/- or one month imprisonment, and on the second count to a fine of Shs. 300/- or two months imprisonment. The appeals are otherwise dismissed.”

JUVENILES

Witnesses – Child of tender years – Proper procedure – Conviction sustainable where evidence of child improperly admitted only if other evidence is sufficient.

See case no. 144.

MALICIOUS INJURY TO PROPERTY

Malicious damage – Alternative verdicts – Conviction for malicious damage cannot be substituted on appeal for conviction for breaking with intent to commit a felony

See case no. 147.

(1969) H.C.D.

- 117 –

MARRIAGES (OFFENCES RELATING TO)

Child – stealing – Imprisonment inappropriate in circumstances.

See case no. 152.

PROCEDURE

146. Alternative verdicts – Accused charged jointly with another of theft by taking, cannot be convicted of independently committing theft by finding.

Mustafa s/o Saidi v. R. Crim. App. 173-A-68, 23/12/68, Platt J.

The appellants Ramadhani Ally and Mustafa Saidi were charged jointly with the theft of 47 goats. The appellant Ramadhani was convicted of the charge framed but the appellant Mustafa was convicted of stealing on goat by a finding.

Held: (1) “The appeals of Mustafa were allowed on a technical ground. It was held that on or about the 29^th January 1967, 47 goats out of a herd of 60 goats had been ‘lost’ by the appellant Ramadhani while he was in charge of the herd. From the surrounding circumstances it was inferred that this appellant had stolen them. Sometime in February 1967, the appellant Mustafa was seen by his neighbours to have one goat which two weeks later was identified as one of the missing goats. From the circumstances, it was held that Mustafe was guilty of theft by finding ….. There was evidence supporting that finding. But if that were so, the appellant Mustafa was then found guilty of an entirely different theft to that with which he was charged ……. The principle is, that except where statutory provision has made it possible to convict on an alternative charge, if the Prosecution fails to prove the charge preferred, the accused is entitled to be acquitted. That seems to me to be only fair; for the Prosecution has enough powers with which to frame the charge properly. So for instance, in R. v. Scaramanga (1963) 2 Q. B. 807, it was held that “except where provided by statute, when two persons are jointly charged with one offence, judgment cannot stand against both of them on a finding that an offence has been committed by each independently”. That was the position in the instant case. Mustafa had stolen a goat in quite different circumstances from the theft held to have been committed by Ramadhani. Therefore the joint charge could not stand. The Republic conceded as much, but prayed in aid section 346 of the Criminal Procedure Code. in Scaramanga, the Crown attempted to persuade the court of Criminal Appeal to apply the relevant curing section. It was held that that could not be done because it would amount to substituting a conviction for that charged under the curing provisions when the legislation did not permit it otherwise. That reasoning would apply equally to the instant case and the legislation upon which it depends. I am satisfied that it would be wrong in principle to apply section 346 of the Code; especially when the Prosecution

(1969) H.C.D.

- 118 –

had ample powers to frame the charge properly. Accordingly the appellant Mustafa’s conviction and sentence were set aside and he was ordered to be set at liberty unless held or any other lawful cause.”

(2) Appeals of Ramadhani dismissed.

147. Alternative verdicts – Conviction for malicious damage cannot be substituted on appeal for breaking with intent to commit a felony.

Ernest Joseph v. R., Crim. App. 5-M-69, 19/2/69, Seaton J.

The appellant was convicted of “breaking into a building with intent to commit felony.” At about 3 a.m. the rear corrugated iron sheet-door of the court-yard of the complainant’s bar was cut. A night watchman, hearing the noise of the cutting, raised an alarm. Several persons came and arrested the appellant who was with three others running away about 30 yards from the scene, all carrying baskets. Nothing was stolen from the complainant’s bar which, apparently, was not entered.

Held: (1) The conviction was clearly wrong. An offence under s. 297 requires an “entering”, which was not established in this case.

(2) “Was any other offence established? The appellant was not found with any weapons or instruments which might constitute an offence under s. 298 of the Penal Code, nor did he enter on the Bar premises which might constitute criminal trespass under s. 299. There remains the possible offence of malicious damage c/s 326 of the Penal Code. However, learned State Attorney has submitted that the offence of malicious damage is not a minor offence to breaking and entering because “breaking” under s. 297 might be figurative only and not involve any actual damage. With respect, I would agree.” Appeal allowed and conviction quashed.

Alternative verdicts – Improper to acquit on substantive charge and then convict of attempt.

See case no. 156.

Alternative verdicts – Undesirable to substitute conviction for cattle theft on appeal for robbery because conviction for cattle theft on appeal for robbery because Minimum Sentences Act would then apply.

See case no. 144.

148. Bail – Relevant considerations as to granting of bail – Attempted suicide of accused not good reason for refusing bail.

Pius s/o Hassani v. R., Crim. App. 76-M-69, 10/3/69,

(1969) H.C.D.

- 119 –

The appellant was charged with stealing by a person employed in the Public Service. His case was mentioned in court on two occasions after each of which the appellant was remanded in custody. On the last mentioned date, the prosecution objected to bail mainly on the ground that he appellant had attempted to commit suicide. The appellant seemed to admit this because he stated that he could not “attempt again” to commit suicide and he had punished himself enough. The magistrate accepted the prosecution submission that it would be better or the appellant to be under safe custody as he would be looked after properly in remand prison. In his appeal against the refusal to grant bail, the appellant denied that he attempted to commit suicide and stated that he took poison “accidentally”.

Held: “It may or may not be true that the appellant attempted to commit suicide. This is a crime but the appellant has not been charged with it. The main issue before the district court was whether the appellant would be likely to appear to stand his trial. Relevant in this connection are the seriousness of the charge and the residence of the appellant, also the availability of sureties if required. The possibility of tampering with prosecution witnesses is another relevant consideration in some cases. ….. I am not very favorably impressed by the argument that it is better to keep an accused person in custody as a preventive measure against his repeating a crime of which he has neither been charged nor convicted. If he has given reasons for suspecting that he may attempt to commit suicide, one might equally argue that as a reason for removing him as quickly as possible from the surroundings which may have precipitated a mood of depression.” Appeal allowed. Appellant released on bail on his own recognizance of Shs. 2,000/- and one surety in the like amount.

Pleas – Equivocal guilty plea – Desirability of prosecution outlining facts before conviction on guilty plea where charge is complex – Failing to register private hire motor vehicle.

See case no. 150.

PUBLIC ORDER (OFFENCES AGAINST)

149. Abusive language – The word “Mshenzi” uttered by police officer to subordinate discovered drinking illegal liquor with others not likely to cause breach of peace.

Augustine Mhanga v. R., Crim. App. 7-D-69, -/3/69, Saidi J.

The appellant was convicted of using abusive language c/s 89(1) (a). The particulars of the offence allege that the appellant had used abusive language against the complainant b abusing him “Kuma mayo, Mshenzi “ which was likely to cause a breach of the peace. The Resident Magistrate found there was strong conflict in the evidence of the witnesses called by both sides on the issue whether or not the words “Kuma Mayo” had been uttered by the appellant, as alleged. He found, however, that the words

(1969) H.C.D.

- 120 –

“bloody fool” and Mshenzi” had been uttered. The appellant was the Officer in Charge of the Manyoni Police Station. The complainant was one of his subordinate police officers. At the relevant time the appellant discovered the complainant drinking in one house in the town in the company of six laymen. The pombe which was being drunk was alleged to be illegal and the house was not a licenced pombe shop. From what the appellant stated, he at once tried to intervene. At first he was not aware that a police officer was in the crowd and once he spotted him he called him out and scolded him for drinking and encouraging other persons to drink illegal brew. The appellant stated that the complainant and the others were drunk and refused to cooperate with him. He says that he then left and went to call police officers to help him to arrest the owner of the premises. By the time he returned he found the complainant had already gone to report to the Regional Police Commander that he had abused him “Kuma mayo” and from that report the charge was brought against him.

Held: “I am in agreement with the learned State Attorney that it is doubtful whether the alleged offence … had actually been committed by the appellant. The word which is relevant as found by the learned Resident Magistrate is “Mshenzi”. Even if it is assumed that it was actually uttered by the appellant, the question is whether it was likely to cause a breach of the peace in the manner it was uttered. The complainant himself is a police officer and is a subordinate of the appellant. He himself was at fault in going to drink illegal brew at an unlicenced place and at such an odd time. In fact the appellant called the complainant out of the crowd and then spoke to him personally. It would have been a different matter if the appellant had abused the whole crowd as by doing so it might be expected that hey might react violently and would go to a fight which would cause a breach of the peace. But this is not what happened.” Appeal allowed.

ROAD TRAFFIC

150. Failing to register private hire motor vehicle – Equivocal guilty plea – Desirability of prosecution outlining facts before conviction on guilty plea.

Stanislaus s/o Kyamwibula Crim. App. 896-M-68, 19/2/69 Seaton J.

The appellant was convicted of failing to register his private hire motor vehicle within Bukoba Township as required by G. N. 91 of 18/3/66 made under s. 27 (2) (a) and 3(a) (iii) of the Traffic Ordinance, Cap. 168. When the charge was read over and explained to the appellant, e is recorded as having said: “It is true.” This was entered as a plea of guilty. In his memorandum of appeal, the appellant denies that he pleaded guilty to the charge.

(1969) H.C.D.

- 121-

Held: “Private hire vehicle” is defined in G. N. 91 of 1966 to include “any motor vehicle which is constructed or adapted solely or mainly for the carriage of passengers and their personal baggage, and having a seating capacity, as assessed by the licensing authority in the area of jurisdiction of the Council, for not more than 8 – persons (including the driver …….”). As this definition is rather complex, it would be desirable when persons are accused with contravening the provisions of s. 27(2) (a) and 3(a) (ii) of Cap. 168, for the prosecutor to outline the facts relied on in support of the prosecutor to outline the facts relied on in support of the charge and then to hear the appellant’s reply thereto before entering a conviction on a plea of guilty. The failure to followed such procedure in the present case has led to some doubt as to whether the plea. “It is true”, admitted all the ingredient of the offence charged. Appeal allowed and trial de novo ordered.

SENTENCE

Fine – Must bear relation to financial resources of accused.

See case no. 145.

151. Imprisonment – Inappropriate for offence arising from domestic quarrel.

Shoma d/o Jungu v. R., Crim. App. 836-M-68, 14/2/69, Bramble J

The appellant in this case was convicted of grievous harm c/s 225 of the Penal Code, and was sentenced to 8 months imprisonment. Apparently she wounded her husband with a knife after he beat her and hid her clothes.

Held: “Having regard to the relationship between the parties I am of the opinion that the infliction of term of imprisonment was somewhat harsh in that, although the offence of using a sharp cutting instrument must be serious, yet one should consider this was a matter between husband and wife and a term of imprisonment would be likely to do more harm than good. Eight months imprisonment in the circumstances was excessive. I, therefore, allow the appeal against sentence and vary the sentence to such term as would result in the immediate release of the appellant.”

152. Imprisonment – Inappropriate for offence of child – stealing in circumstance.

Pili d/o Kafiti v. R., Crim. App. 835-M-68, 14/2/69, Bramble J.

The appellant in this case was convicted on a charge of child stealing c/s 169 of the Penal Code and sentenced to 3 years imprisonment. She was a married woman and did not have any children. She had several abortions and at

(1969) H.C.D.

- 122 –

this time she had just had one at the hospital and it would appear that through a craving for children and the desire to satisfy her husband she stole the child. She took it to her husband as though it was her child and there was a great celebration.

Held: “While the offence charged is a serious one, I think one ought to have examined the psychological background of this case before passing sentence. I consider the sentence of 3 years imprisonment excessive. The appeal is therefore allowed and the sentence is reduced to such term as would ensure the immediate release of the appellant.”

153. Material factors – Accused, a juvenile, was instigated by father to participate in robbery – Two years excessive.

Ngidi s/o Paulo v. R., Crim. App. 90-D-69, 12/3/69, Biron J.

The appellant was convicted together with his father, both on their own pleas of robbery c/s 286, Penal Code, and whilst his father was sentenced to imprisonment for three years, and to the statutory twenty four strokes corporal punishment, the appellant was sentenced to imprisonment for two years, and on the magistrate finding him to be a juvenile, he escaped had traveled together with the complainant in a truck from their village to town, where the complainant was going to sell some coffee, one and a half debes full. After they had all left the truck, the two accused set upon the complainant, felled him to the ground and robbed him for his coffee and also of Shs. 150/-. In sentencing the two men the magistrate stated: - “This is an aggravated form of robbery on the highway, the complainant having been severely injured. It is quite apparent that the 1^st accused – the father of the 2^nd accused – was the domineering in the crime, and the 2^nd accused must have unfortunately participated at the 1^st accused’s instigations. Some leniency is therefore called for as far as the 2^nd accused is concerned. Heavy and deterrent sentence is called for as far as the 1^st accused is concerned.

Held: “The learned magistrate having found, and, I may add with respect, very properly, that he appellant was instigated to participate in the offence by his father, whom the magistrate to participate in the offence by his father, whom the magistrate describes as domineering, it is difficult to comprehend why the magistrate saw fit to impose a sentence of imprisonment for two years on the appellant, who he himself found to e a juvenile. As the learned magistrate will note, a juvenile is expressly exempted from the provisions of the Minimum Sentences Act. He therefore had an unfettered discretion in respect of sentence. In all the circumstances, the sentence imposed cannot be regarded as other than manifestly excessive, and is accordingly reduced to such term as will result in the immediate discharge of the appellant.”

(1969) H.C.D.

- 123 –

Material factors – Child stealing – Great desire of accused to have children despite abortions.

See case no. 152.

154. Material factors – Existence of provocation and slight nature of wounds mitigating factors in case of unlawful wounding. Principles of punishment – wrong for court to set minimum sentence for non-scheduled offence.

Dabili s/o Mani v. R. Crim. App. 239-A-68, 4/2/69, Platt J.

The appellant was convicted of unlawful wounding c/s 228(1), Penal Code, and sentenced to 12 months’ imprisonment. His appeal was admitted solely on the question of sentence.

Held: (1) “The learned Magistrate stated, that he had fixed a minimum for all cases of unlawful wounding of 12 months’ imprisonment, as a deterrent, because of the prevalence of such cases. This is probably an unfortunately worded approach. But apart from that, it would amount to misdirection if the learned Magistrate refused to take into account proper mitigation in favour of an accused.”

(2) “In this case the appellant, a first offender aged 25 years, stated that he had been attacked first by the complainant. The Prosecution accepted that fact. In his petition of appeal the appellant explains that the quarrel arose over the fact that the appellant’s wife had left him and gone to live with the complainant. When the appellant referred to this matter at a pombe party, the complainant was annoyed and hit the appellant with a stick. The appellant disarmed him and retaliated. The complainant was injured over the forehead and hand according to the medical report; but this amounted to simple harm, their being no fractures. Not all the facts were apparently put to the learned Magistrate but the fact that there was provocation and the nature of the wounds were matters which he had to take into account. In the circumstances, the sentenced is manifestly excessive and I substitute a term of 4 months imprisonment.”

155. Minimum Sentences act – Compensation – Where accused was one of several participants in offence, compensation order limited to property actually obtained by him – In absence of contrary evidence participants deemed to share loot equally.

Rashid s/o Mfaume v. R., Crim. App. 741-D-68, 12/3/69, Biron J.

The appellant was convicted of robbery with violence c/s 286, Penal Code. He, along with four other persons, raided the premises of a cooperative society and stole Shs. 75,416/-. He was committed for sentence to the High Court where he was sentenced to 7 years and 24 strokes under the Minimum Sentences Act. The High Court here deals with the question of compensation, mandatory under the Minimum Sentence Act.

(1969) H.C.D.

- 124 –

Held: “With regard to the question of compensation …. There is a difference of judicial opinion as to whether one of several participants in an offence of this nature can be held liable for the total sum stolen or only for such part as is actually obtained by him. The resolution of this question depends on the construction to be put on section 6 of the Minimum Sentences Act. ……. The section was fully considered and ruled on by a full bench whereon I also sat, in the case of Sajile Salemulu and Another v. Republic, (1964) E.A. 341 ….. In considering the section I stated inter alia in my judgment (at page 349):- “Giving the wording of the section its plain and ordinary meaning, which is the cardinal cannon of construction, the section, to my mind, means that a court must make an order for compensation where it is of the opinion that a convicted offender has actually obtained some property as a result of the commission of the offence, and the amount of compensation in so far as the individual offender is concerned, is limited to the value of the property actually obtained by that offender.” Spry J. (as he then was ) concurred in such construction, whilst Roide J. in his judgment stated (at page 351):- “As I understand it, the question which this court has to deal with in this case in considering compensation, is the interpretation of the word ‘obtained’ in the phrase ‘obtained any property’ …….. I will not myself attempt any exhaustive or general definition of the phrase ‘obtained any property’, but will say at once that in this particular case I would support the interpretation which learned State attorney has canvassed, that is, that all the participants in the theft itself must be regarded for the purposes of the section as having jointly obtained the property stolen.” In this instant case the eye-witnesses were vague as o the number of men involved in the robbery. According to the appellant himself ….. there were four other men involved. He however, is the only one of the five whose conviction has been upheld. According to Roide J., he should be held liable in compensation for the whole amount stolen that is, Shs. 75,000 /- odd, but according to the majority decision in the case cited, his liability should be limited to what he actually obtained. It is not irrelevant to not that this majority decision was followed by Seaton J. in Leshalon s/o Noosha v. R., Arusha Criminal Appeal No. 10-A-67, [1968 High Court Digest no. 62] …… In dealing with the apportionment of compensation to be paid by several participants in a crime, I said in my judgment in the case cited: - “To make such an order the court need not be satisfied beyond reasonable doubt as to the property actually obtained by an individual offender, or its value. It is sufficient if it is so of opinion. Adopting such standard which is o much lower than the usual standard in criminal matters, where there is a number of offenders who have each obtained property, a court, to my mind, would be entitled to assume, in the absence of any evidence to the contrary, that they each obtained an equal share, whether on the principle of honour amongst thieves or equality is equity.” Applying this principle enunciated to this instant case, although the appellant may well have been the ringleader, as it was his car which was used in the raid on the society’s offices and the subsequent

(1969) H.C.D.

- 125 –

removal of the safe therein, at very lowest he, to my mind, cannot be regarded as other than an equal participant in the offence. Therefore the court can assume that he obtained at lowest a fifth of the money stolen from the society, that is, in round figures, Shs. 15,00/-.” Appropriate order for compensation made.

Principles of punishment – Wrong to fix minimum sentence in advance for offence – Mitigating factors must be taken into account.

See case no. 154.

THEFT, BREAKING AND RELATED OFFENCES

Breaking with intent to commit a felony – “Entering” an essential element of offence – Conviction for malicious damage cannot be substituted.

See case no. 147.

156. Cattle – theft – Act of driving cattle from cattle – boma but not from surrounding court – yard sufficient “taking” to constitute offence. Stealing from person – Act of picking pocket but being prevented from entirely removing purse is sufficient ‘taking” to constitute offence. Criminal trespass – separate and distinct offence from stealing. Produce – Alternative verdicts – Improper to acquit on substantive charge and then convict of attempt.

Mazengo s/o Magala v. R., Crim. App. 116-D-69, 25/2/69, Biron J.

The appellant, who was charged on two counts, of cattle theft and of criminal trespass, was acquitted on the latter count, and on the first count he was found guilty of attempted cattle theft and sentenced to imprisonment for three years, and to the statutory twenty four strokes corporal punishment. Evidence was given by two herdsmen employed by the complainant who slept near his cattle boma, that at about three o’clock in the morning they were awakened by the sound of cattle moving and they found four head of cattle outside the boma, which had been broken open. When about to return the cattle to the boma, they caught sight of the appellant, who when he realized that he had been seen, attempted to escape by breaking through what is apparently a hedge surrounding the compound, but he was apprehended.

Held: (1) “The magistrate directed himself as follows; “The question now is to decide whether the act of driving out of the boma four cows and caught before moving them away from the victim’s courtyard is ‘taking’ in the real sense of the word ‘taking’ in my opinion I think the act of carrying away had not et been completed because the cows were still in the courtyard of the victim and so within the victim’s jurisdiction. This is like a man who puts his hand into somebody’s pocket, grabs some money but caught before removing the money from the pocket. This would be an attempt to steal ……” With respect, the

(1969) H.C.D.

- 126 –

Magistrate has misdirected himself on what constitutes taking. There was more than sufficient asportation in this instant case to constitute a taking within the meaning of the definition of theft. As the magistrate has quoted from Archbold, though in a different context, in respect of a possible misnomer of the appellant in the charge sheet, he is advised to consult Archbold (35^th Edition) on this aspect of asportation, set out at paragraph 1512. Incidentally, as the magistrate will note, the very example given by him in the passage quoted, that is, picking a pocket but being prevented from entirely removing the purse therefrom, was held to constitute theft.”

(2) “With regard to the second count the magistrate directed himself: “2^ndCount. The facts in the first conviction are more or less the same as those in this count. Therefore a conviction on this count will be more or less a double conviction (duplicity) ……… although substantively the second count was really unnecessary, as the offence was part and parcel of the cattle theft charged, nonetheless, on the facts, a conviction could have been found on the charge as laid, as it does constitute a separate and distinct offence from stealing, though naturally any sentence imposed on such conviction would be ordered to run concurrently with the sentence imposed on the substantive charge.”

(3) “It is further pointed out for the benefit of the magistrate that it is contrary to practice to acquit on a substantive charge and then, after signing and dating the judgment, go on to deliver “An alternative verdict” and find the accused guilty of attempting to commit the offence he was charged with. In fact, such a procedure is to be deplored, as it lays itself open to the danger of a submission that, once an accused has been acquitted, he cannot thereafter be convicted on the same facts on the principle of autrefois acquit.”

(4) Appeal dismissed.

Cattle – theft – Alternative verdicts – Accused charged jointly with another of theft by taking cannot be convicted of independently committing theft by finding.

See case no. 146.

Criminal trespass – Separate distinct offence from stealing.

See case no. 156.

157. Obtaining credit by false pretences – Post-dated cheque not representation as to existing fact.

Thomas Jorrat v. R. Crim. App. 99-A-68, 16/12/68, Platt J.

The appellant was convicted of obtaining credit by false pretences c/s 305 of the Penal Code and sentenced to 6 month’s imprisonment. The facts were that on 3 December 1967 the appellant obtained a loan of Shs. 20/- from Pascal Mali and in return gave Pascal a postdated cheque. It was

(1969) H.C.D.

- 127 –

a cash cheque dated 10 December 1967 and the appellant gave Pascal to understand that on that day there would be money in his account at the National Bank of Commerce, Uhuru Road Branch, Arusha to cover it. It was also accepted that the appellant did have an account at that Bank and that on the material date Shs. 12/- stood to his credit. The Bank statement also showed that during 1967 very little money had been paid into his account and that from time to time it had been overdrawn. It appears that the Bank had allowed the appellant to overdraw his account but generally speaking there was usually a small credit. When Pascal presented the cheque on 12 December 1967 the Bank refused to accept it and it appears from his evidence that the Bank officials must have though that it was a false cheque. As a result thinking that he himself was in some trouble Pascal reported the matter to the Police. On appeal the Republic did not support the conviction.

Held: “It was acknowledged that obtaining a sum of money by way of loan against a cheque can amount to obtaining credit (R. v. Pryce (1949) 34 C.A.R. 21). But the fault found with the prosecution by the Republic was that as this was a postdated cheque, it has not been proved that the appellant had made any false pretences of an existing fact. Reliance was placed on R. v. Maytum-White (1958) 42 C.A.R. 165. In that case the accused issued a postdated cheque in payment of some theatre tickets but he had no account at the Bank on which the cheque was drawn. In those circumstances it was held that the offence was proved. Lord Goddard remarked that having written the cheque the accused had represented that he had an account with the Bank mentioned on the cheque although it was not necessarily a representation that he had the amount of money stated on the cheque in his account with the Bank. Therefore he was representing that he had power and authority to draw the cheque on the Bank but not that he had power to draw a particular amount. He observe “surely there is all the difference in the world between a man giving a cheque on a bank in which he has no account and giving a cheque on a bank at which he is a customer, although this is for too much. If he gives a cheque on his own bank and gives it in excess of the amount of credit which he has in the bank there must be evidence that he knew that he had not enough money in the bank.” That case is not of course on all fours with the present case; for here the accused did have an account at the National Bank of Commerce in Arusha which was in credit. He had given Pascal to understand that here would be money in his account on the date on which the cheque should be presented to cover the cheque. Pascal accepted that. There was therefore no false representation as to an existing fact that there was sufficient money to cover the cheque at the time that it was made. What was accepted was a promise to meet the cheque in the future. Unfortunately that promise was not made good; but that did not amount to obtaining money by false pretences. I should perhaps also add that the appellant may have been unlucky in that the Bank did not accept the cheque and allow the account to be over drawn to the extent of Shs. 8/-. I am no to be understood as saying that the Bank did not have the right to refuse the cheque; but from the Bank statement it appears that

(1969) H.C.D

- 128 –

on other occasions the appellant had been allowed to overdraw his account for sums greater than that. There is a possibility then that the appellant could have expected the cheque to be met although of course he knew that he had to cover the overdraft eventually.” Appeal allowed.

Robber – Sentence of two years excessive for juvenile instigated by father.

See case no. 153.

158. Robbery – Snatching of handbag and obstruction of complainant’s attempt to catch thief does not amount to actual violence.”

Joseph Lelo v. R., Crim. App. 139-A-68, 23/1/69, Platt J.

The appellants Joseph Lelo and Hamisi Juma were jointly convicted of robbery contrary to sections 285 and 286 of the Penal Code and sentenced to the minimum sentence. As the complainant, Mrs. Moshi, was waiting to get into her car which her husband was unlocking, the two appellants approached her and the appellant Hamisi snatched her handbag and got it free from her arm while the appellant Joseph impeded her path while she was trying to run after Hamisi.

Held: The fact that the appellant Hamisi used force to take the handbag away did not in these circumstances amount to robbery. Mrs. Moshi’s evidence was as follows: - “I with my husband stood while talking, and when I wanted to enter in the car, the first accused came and snatched my handbag and ran away. The second accused was behind me, he tried to obstruct me so I may not catch the other one.” The learned Magistrate understood the evidence as meaning that while snatching the handbag Hamisi used force to cause Mrs. Moshi to release her handbag. But there was no evidence that there had been any struggle or that Mrs. Moshi had been injured in any way. It is true that sometimes the line between mere stealing from a person and robbery may be fine, as the cases collected under paragraph 1768 in Archbold Criminal Appeal Evidence and Practice 36^th Ed. Indicate. But on the facts of this case, the Republic conceded that there was no real evidence of that force being used, which is required in the offence of robbery as defined in the Penal Code. On this ground the appeals must be successful.” Convictions for stealing from person c/s 269(a), Penal Code, substituted and sentences of 12 months awarded.

Stealing from person – Act of picking pocket but not entirely removing purse is sufficient “taking” to constitute offence.

See case no. 156.

(1969) H.C.D.

- 129 –

159. Stealing from person – Does not cover case of lawful taking followed by unlawful conversion – Conviction for theft substituted.

Ramadhani Mugwena v. R. Crim. App. 218-A-68, 10/2/69, Platt J.

The appellant was convicted of stealing from the person of another contrary to sections 269(a) and 265, Penal Code, and sentenced to 12 months’ imprisonment. The appellant and his brother Gabriel Sendoro were drinking in a bar with other persons. Gabriel had sold two heads of cattle for Shs. 465/-. During the drinking session, Garbriel fell asleep and the bar owner suggested that lest Gabriel should lose any money, he should be searched. The appellant is said to have got hot-tempered and refused to allow any one to search Garbriel other than himself. Shs. 3/- and a cigarette lighter and a packet of cigarettes were found in his pocket and a purse containing an unknown number of notes was found in his underwear. The appellant left the club before Gabriel awoke. When he did so, he said that his money Shs. 461/- was missing and also his lighter. Leornard informed him what had happened and next day he asked the appellant for his money. The latter denied having taken anything. But Gabriel traced his lighter at the house of the witness Muranda where the appellant had left it behind the night before.

Held: “[T]he question is whether the facts so found established the case of theft from the person of another as the appellant was charged and convicted. When the appellant took the money, was there a trespass? It was conceded that because of their relationship the appellant was entitled to act in defence of his brother’s property. He refused to let the bar owner search Garbriel. Through Gabriel’s temporary incapacity, it became necessary for the appellant to prevent others from interfering with Gabriel and therefore took temporary custody of Garbriel’s money and property. The taking was lawful or at least with claim of right, unless there was evidence that at the time it was proved that the appellant intended to steal. That was not proved. Later on, he converted the money to his own use. The fact that he later converted the money, causes no difficulty under the present definition of theft, though under English law it might have been necessary to consider whether the conversion related back to the original taking so making it unlawful. Under the definition of theft in section 258 of the Penal Code, it is sufficient to say that the original taking was lawful and accepted by all those present as such, but that later the appellant converted the money to his own use. Therefore the appellant was not guilty of stealing from the person but simple theft contrary to section 265 of the Penal Code. I substitute a conviction accordingly by virtue of section 181 of the Criminal Procedure Code.”

Theft – Cutting down and taking trees on land of another constitutes theft.

See case no. 143.

(1969) H.C.D

- 130 –

CIVIL CASES

160. Arusha General Store v. Mawji (1) Civ. App. 16-A-68, 8/2/69, Platt J.

This is an appeal against judgment and decree of the District Court of Arusha presided over by the Senior Resident Magistrate. The court had granted possession to the Respondent/Plaintiff of certain premises. Seven grounds of appeal were presented in the memorandum of appeal but the court entertained argument only relating to the allegation that the decree passed by the District Court was null and void having been passed by a court of no competent jurisdiction. The first question in issue is whether the want of jurisdiction can be raised o appeal if it was not raised at the time of trial. The second issue is whether in fact there was want of jurisdiction. The plaint had been filed and accepted in the District Court of Arusha. A summons was issued for disposal of the suit signed by the Senior Resident Magistrate and stayed with the District Court’s Stamp. The appellant defended the action and raised no objection on the issue of jurisdiction. The Senior Resident Magistrate issued the decree which was also stamped with the stamp of the court. All parties assumed the court to seised of the matter.

Held: (1) “Unfortunately, the Rent Restriction ordinance which empowers Civil Courts to entertain proceedings such as these, by virtue of the amending Act No. 57 of 1966, provides that proceedings shall be taken in a court of a Resident Magistrate of competent jurisdiction – (See section 2). “A court of Resident Magistrate” is a term which springs from the Magistrates Courts Act 1963, Cap. 537. By section 6 of that Act, the Chief Justice is empowered by order in the Gazette to establish courts of a Resident Magistrate which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction in such areas as is specified in such order, provided that the designation of a court of a Resident Magistrate shall be that specified in the order establishing the same. In contrast, District Courts were directly established by section 5 of the Magistrates Court Act in every district and, subject to the provisions of any law for the time being in force, were empowered to exercise jurisdiction which the district in which they were established. In pursuance of section 6 of the act by Government Notice No. 484 of 1964, the court of a Resident Magistrate was established at Arusha having jurisdiction in Arusha Region ….. “By section 7, a District Court was provided as being duly constituted when held by a single magistrate being the District Magistrate while in the case of a Court of a Resident Magistrate by a Resident Magistrate. However, by section 2, it was provided that he description ‘District Magistrate’ included a Resident Magistrate. Therefore a Resident Magistrate was empowered to sit either in a District Court or in a court of a Resident Magistrate. Moreover, apart from the territorial limits already noticed above, the jurisdiction of a Resident Magistrate sitting in the District Court was similar to the jurisdiction that he would exercise in the court of a Resident Magistrate. Nevertheless, registers were required to be kept and separate seals or stamps were provided. (See section 10

(1969) H.C.D.

- 131 –

and 11 of the Act). It follows then that the two courts are constitutionally different. The Act establishing these courts came into force on the 1^st July, 1964, and the act amending the Rent Restriction Ordinance came into force on the 1^st January, 1967. It an only be understood therefore that when the latter act made provisions for proceedings to be instituted in a court of a Resident Magistrate, that the legislature intended to restrict such proceedings to that court and excluded the District Court ….. there is no doubt therefore that these two court are separate entities even though one and the same person may preside over them. It is not disputed that had the suit been instituted in the Court of a Resident Magistrate at Arusha that learned Senior Resident Magistrate would have been otherwise perfectly entitled to entertain it. The fact that he did not sit in the Court of a Resident Magistrate is aid by the applicant to indicate an inherent want of jurisdiction, while the Respondent urges that the institution of the suit in the district court rather than the Court of a Resident Magistrate was merely a curable irregularity not really affecting the jurisdiction of the particular magistrate himself. I should perhaps notice here that the court seised of matters under the Rent Restriction Ordinance is especially granted wider powers than it would ordinarily have in its original jurisdiction. (See section 11A (1)). It may well be that a court of a Resident Magistrate was therefore chosen to exercise such powers rather than the District Court. The presiding Resident Magistrate has wider powers than he would normally exercise in either the district court or Court of a Resident Magistrate. It seems to me that this aspect underlines the necessity for instituting the suit in the proper court. It is not a question of the presiding magistrate having any particular personal jurisdiction. He only has jurisdiction as the properly appointed presiding judicial officer of the court of a Resident Magistrate exercising the powers granted to the court under section 11. he cannot exercise these wider powers, necessary to the fulfillment of the ordinance, as the presiding official of a district Court, any more than he could exercise the wider territorial jurisdiction relevant to his position in the court of a Resident Magistrate if he were sitting in the District court.” (2) It sis necessary to decide whether the want of jurisdiction which has been demonstrated above, can be agitated for the first time on this appeal. As to the rules governing this appeal, I take it that by virtue of section 11D of the Rent Restriction Ordinance, the provisions of the civil Procedure Code 1966 relating to appeals from orders and decrees in civil suits, apply. I apprehend the general rule to be that the judgment of a court without jurisdiction is a nullity and that the parties cannot by consent confer upon a court the necessary jurisdiction. It must be however a want of jurisdiction apparent from the face of he decree. That is the position here. If such a want of jurisdiction causes the decree to be a nullity, objection may generally be taken on appeal for the first time. But section 19 of the code provides an exception to some extent. It provides: “No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.”

(1969) H.C.D.

- 132 –

It is clear that if all that has happened in the instant case is that the place of suing was incorrect, and then as no objection was taken at any time of the trial, this court cannot entertain the appeal on this ground. Section 19 falls within a section of the Code providing for the proper place to institute suits. For instance, there is provision for a suit to be instituted, in the lowest grade competent to try it; where the subject matter is situate; where the defendants reside, or he cause of action arose, and for he transfer of cases from one court to another. In these cases if the suit is brought in the wrong court, section 19 provides that unless objection is taken, the matter cannot be raised on appeal. But in the instant case, I am not concerned with matters of that sort. I am concerned with a case where the court before which the matter was tried had no jurisdiction at all by law to entertain the suit, though another court which could have been presided over by the same magistrate would have been entitled to entertain it. The distinction was said to amount to this whether there was inherent want of jurisdiction or merely an irregular exercise or assumption of jurisdiction. The second issue posed above then is involved in the decision of the first.

Both sides referred to Mulla’s explanation of the problem in his Commentary to section 21 of the Indian Code of Civil Procedure (9^th Ed. Pp. 112 and 113). That section is in identical terms to section 19 of the Code of 1966. The Commentary sets out a number of Privy Council and other decisions which I have, with respect, found instructive, in particular Ledgard v. Bull (1887) 13 I.A. 134 ….. Both sides in the instant case claimed support from Ledgard’s case. The Respondent’s argument was that as the learned Senior Resident Magistrate was personally competent to try the case in a court of the Resident Magistrate, therefore it was a curable procedural irregularity, which could not possibly have caused any failure of justice. On the practical side of the matter, I should express some sympathy with the argument. In that sense it might be said that he matter was rather a question of which cap the learned Magistrate asked to wear. But that was not the position in Ledgard v. Bull. There the District court was properly constituted to hear the case. It was only a question of how the case was brought before it. Here the district court could not hear the case at all, the legislature not having empowered it to entertain such suits. It is misleading I my opinion to say that the learned Senior Resident Magistrate was competent to hear the suit. He was not competent when sitting in the District court. It was not just a matter of choosing the right court according to the rules of the Civil Procedure Code. it was a matter of choosing between one court empowered to hear the suit by the terms of the Rent Restriction Ordinance and one which was not. In my view therefore section 19 was not available to cure the defect, as the defect went to the inherent lack of jurisdiction by the District court. It follows then that the matter was properly raised on appeal and that the decree was a nullity. (3) Appeal allowed and decree set aside.

161. Arusha General Store v. Mawji (11) Civ. App. 16-A-68, 27/2/69, Platt J.

The applicant had successfully appealed against a decree of the District Court granting the respondent possession of certain premises. It had been held that decree was null and void ab initio because the District Court lacked jurisdiction and that decree was set aside but without further directions as to restitution since the defective District Courts’ Order had been executed and the respondent was in possession. Also there

(1969) H.C.D.

- 133 –

were no directions as to costs. The applicant sought an order for restitution of premises and his costs with interest. The respondent argued that the court was properly entitled to order the return of the plaint for it to be presented to the proper court. The applicant argued that once the order of the District court was reversed then a declaration for restitution in pursuance of Order 39, rule 31 (d), must follow automatically.

Held: (1) “The difficulty in this case, in my view is that, the judgment of this Court does not and could not do more than set the district court’s decree aside on the grounds of nullity. It was not possible to reverse that decree by way of demonstrating that the appellant was entitled to the property as against the respondent. All that could be said was that the dispute of the parties had not yet been decided … On the one hand, the appellant claimed the protection of the Rent Restriction Ordinance while on the other, the respondent claimed that the appellant had forfeited that protection by unlawfully sub-letting the premises. To direct restitution in these circumstances when it was not clear that the appellant was entitled to possession seemed inadvisable at first sight. The appellant however argued that …… having been dispossessed, he would not be able to challenge the respondent’s possession in a fresh suit. Therefore, he ought to be allowed to resume occupation and the respondent could then bring a proper suit in the right court for possession. The fact that he respondent instituted the present proceedings which ended in being declared null, should not permit him to take advantage of the wrongful orders made. There is force in this argument.” (2) “It seems to have been assumed that an action under section 89(1) of he Code would be open to the appellant. The respondent argued that ha was not so. Alternatively a suit for restitution could be instituted by the appellant in the respondent’s view; but this the appellant considered might be barred by virtue of section 89(2) of the code. In order to assess the weight of these arguments, it was agreed by the parties that I should state my opinion as to whether the appellant could avail himself of section 89(1) of the code. That section provides as follows:-

“(1) where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose, the court may make any orders including orders for the refund of dosts and for the payment of interest, damages compensation and mesne profit, which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1)”.

The section follows section 144 of the old code and as always the learned Commentaries to that code are of great persuasion. It is clear that whether or not the appellant judgment gives directions, an application to the court of first instance will still be successful. The only difficulty is whether the Court of first instance having had no jurisdiction in the matter could entertain an application …… the Commentaries

(1969) H.C.D.

- 134 –

do not deal clearly with a case where the court had no jurisdiction ab initio. Nor is it a case where the court’s jurisdiction has been withdrawn and given to another court. The District Court has never had jurisdiction and is not intended to have such jurisdiction. The court of the Resident Magistrate cannot be said to have acceded to the District Courts powers, by way of some re-arrangement of the jurisdiction or system of courts. It is understandable, as the Commentaries point out, that when the court of first instance loses its territorial jurisdiction or ceases to exist, the court which gets such jurisdiction will be the court of first instance. That would follow from section 32 of the code. but it is a different matter altogether when the court of first instance still exists but never had any jurisdiction to pass its decree. There is a note in Chitaley’s Commentaries to section 144, citing a Calcutta decision that “the section is concerned with variation or reversal of valid decree and had nothing to do with nullities.” (See Vol. 2, Note of page 1706) …… The respondent argument seems to me to be sound that where the court of first instance has no power to act, it cannot be asked to grant restitution ….. I hold therefore that it is not open to the District court to entertain an application under section 89(1) of the code, from which it follows that a suit for restitution would not be barred under section 89(2) of the Code.” (3) “Even though the appellant may gave a remedy by way of a suit for restitution, he still claims a direction or restitution at least under the inherent powers of the Court. There is no doubt that those powers exist. If the powers are not exercised, it would not debar restitution proceedings. So it is said in Chitaley (at page 1721) it is not necessary that the reversing decree should contain any direction or provision for restitution. But there is a practical advantage to be gained by the direction in that where the reversing decree contains a direction for restitution, the court in proceedings for restitution cannot go behind that order which is binding on the parties. (Chitaley Ibid). The exercise of the inherent powers of the court is a matter of discretion but on that must be judicially exercised. I apprehend the principle to be that the party who received a benefit from the erroneous judgment is obliged to make restitution to the other party for what he has lost. The court ought to enforce that obligation unless it is shown that it would be clearly contrary to the real justice of the case. …… He is entitled to a direction unless that would be contrary to justice. As I have said, it is not easy to say where the real justice lies in this case because the merits have not yet been considered legally. That being so, as the appellant was in possession on and could not be removed except by order, as there has been no order, it would seem that on balance he is still entitled to protection. He may, of course, be judged to have lost that protection in which case he must vacate again. It is the conflict between the appellant’s right in principle and the practical situation which causes difficulty. (4) “I direct that there be restitution of the property to the appellant. This concerns both possession of the property and the return of costs paid with interest 7% ……. I also direct that the plaint be returned to the respondent for presentation in the proper court.” (5) Application allowed.

(1969) H.C.D.

- 135 –

162. Nyirenda v. National Union of Tanganyika Workers and other, Civ. Case 22-M-68, 19/3/69, Seaton J.

The plaintiff instituted this suit claiming damages for libel against the three defendants by filing a plaint in the District Registry at Mwanza. Para 8 of the plaint averred. “The cause of action arose at Morogoro in the jurisdiction of this Honourable Court”. The defendants’ advocates filed an application that the suit be dismissed on the ground that as Para 8 of the plaint averred that the cause of action arose at Morogoro, it was the High Court at Dar es Salaam, not the High Court at Mwanza, which had jurisdiction over the suit. The application raised the question of local or territorial jurisdiction.

Held: (1) That there is one High Court for the whole of mainland Tanzania but that, for administrative purpose it is served by various facilities or centers called “Registries” at Dar es salaam, Tanga, Arusha and Mwanza …… the High Court has territorial jurisdiction over the whole of the mainland and for purposes of filing a plaint, it is irrelevant where the cause of action rose.” (2) Application to dismiss the suit refused.

163. Zanfra v. Duncan and another, Civ. Cases 20-A-67, 21-A-67 and 11-A-68, 26/8/68, Platt J.

The plaintiff commenced this action for damages for personal injuries. The action arose out of an accident which took place between two cars, one driven by Carlo Zanfra and the other driven by the 1^st Defendant and belonging to the 2^nd defendant. The plaint was brought within the period of limitation, relevant to an action for damages fro personal injuries, namely one year. The two defendants sought by third party procedure to make Carlo Zanfra the third party in the action and claimed against him contribution by virtue of the provisions of the Law Reform Fatal Accidents and Miscellaneous Provisions Ordinance Cap. 360, in respect of any judgment or judgments which might be obtained by the plaintiff against the defendants jointly or severally because of the 3^rd party have alleged negligence. The 3^rd party argued that the plaintiff could not bring an action against him even if that was desired, as the period of limitation over an action for personal injuries i.e. one year, had been exceed. Therefore 3^rd party must have the same defence as against the defendants which he could have had against the plaintiff. On the other hand it was argued that the 3^rd party had no such defence o limitation as against the defendants because the action then against him was one for contribution and not for personal injuries. It was conceded that the limitation period in a case of claim for contribution is three years.

Held: (1) “Where the plaintiff elects to sue a single though joint tortfeasor and does not sue a second, then even if the defendant sued joins a third party to the action in order to obtain contribution, the third party does not become a defendant in the main suit. Where third party proceedings are taken, the third party only becomes a defendant, if the plaintiff himself seeks to make him so. Therefore the third party here Carlo Zanfra not being a defendant to the main suit, is not directly concerned with the question of the claim for personal injuries as are the two defendants upon the record. (cf. Orderly rule 21 with rule 23 and the position of B.O.A.C. as both defendants and third party in GEORGE WIMPEY v. B.O.A.C.

(1969) H.C.D.

- 136 –

(1955) A.C. 169). The third party having been joined is concerned primarily with the question whether he is liable to pay contribution to the defendants. The main purpose of this procedure is to save unnecessary expense to, and it may also safeguard the position of the defendants in view of the fact that if there were a second suit for contribution, the defendants might find themselves embarrassed by decisions taken in the second suit different to those reached in the first.” (2) The attractive nature of third party procedure does not change the basic position that a suit for contribution by the defendant is, as it were, being heard at the same time as a suit for personal injuries brought by the plaintiff against that defendant. Therefore whatever may be the position between the defendants and the plaintiff in this case concerning limitation, that period of limitation does not pertain to the question of contribution between the defendants and the third party.” (3) The right to contribution of the defendant is a separate matter and could have been taken on a separate case within the three year period. According I uphold the submission of the defendants that the right to contribution against the third party is not time barred, and that the defence adopted by the third party is not sound and is therefore rejected. (4) “The directions therefore which I give are that the issues raised by the notice to the third party and arising out of his defence to that notice be tried together with the issues arising on the main suit ……

164. In re Eastern Province – Transport Co. Ltd., Procetti v. Administrator-General, Misc. Civ. Case 19-D-69, 5/5/69, Georges, C. J.

This was an application that the dissolution of the Eastern Province Transport Co. Ltd., which was struck off the Register under section 383 of the Companies Ordinance, be declared void and that the name of the Company be restored to the Register. The facts established that the applicant company was a person interested in having dissolution of the company declared void. The applicant company had a claim in a running down action in which it was necessary to join the company as a defendant. The application was made under section 282 of the Companies Ordinance. The Registrar of companies did not conditions; (i) That the applicants should give an undertaking that they should put the company into liquidation immediately after the action had been completed and their interest had ended; and (ii) That there should be a proviso that in the case of creditors whose debts were not statute – barred on the date of the striking off then the period between the date of the striking off and the restoration should not be taken into account for the purpose of computing the period of limitation. For support we referred to the case of In re Donal Kenyon Ltd. [1956] 1 W.L.R. 1397.

Held: “Section 282 does state that the Court may make an order on such terms as it thinks fit, but I am not satisfied that this phrase would empower me to suspend the operation of the Statute of Limitations in the manner achieved in the case of In re Donald Kanyon. I think the terms must be terms binding on the parties to the suit – In this particular case the petitioner. Accordingly, I do not think the Court has power to make the second proviso asked for by Mr. Rahim.

(1969) H.C.D.

- 137 –

(2) “As regards the first condition ……. It appears to me that it is an undertaking which I should not ask the petitioner to assume, for the very simple reason that the petitioner may not be able to ask that the company be liquidated immediately after this action. The petitioner may not be successful. He may never become a creditor of the company; therefore, he would be in no position to see to it that it was liquidated.”(3) “I will, however, as a condition to the order ask that the petitioner should, within twenty-eight days of the fulfillment of his purposes, notify the Registrar of Companies of that fact, so that the Registrar will then be in a position to take such steps as he may think fit as regards removing the name of the company from the Register. Subject to this condition, I would grant the order as prayed.”

165. Aggarwal v. Dhillon, Civ. Case 19-A-68, 24/4/69, Platt J.

A tenant in common of land held under a right of occupancy brought an action asking the court to order sale of the property. He had let the premises to the other tenant in common who had failed to pay the rent. The plaintiff claimed the arrears of rent, and further that it was disadvantageous for him to continue as co-owner. He relied on the English Partition Act of 1868 and 1876. the defendant raised a preliminary objection arguing (1) that a cause of action by way of sale did not lie on the grounds that the partition Acts do not apply in Tanzania: (2) that the proceedings should have been started by originating summons: and (3) that the consent of the Commissioner for Lands was a prerequisite to the bringing of the action.

Held: (1) On the first question, I am of the opinion that the Partition Acts do apply. Section 2(2) of Cap. 453 provides that the jurisdiction of the High Court shall be exercised in conformity with the written laws which are in force in Tanganyika and subject thereto and so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the Common Law, the doctrines of Equity and the statutes of general application in force in England on the 22^nd day of July, 1920, and with the powers vested in and according to the procedure and practice observed by and before courts of Justice in England according to their respective jurisdictions. There was a proviso that the said Common Law, doctrines of equity and statutes of general application should be in force only so far as the circumstances of Tanganyika and its inhabitants permitted, and subject to such qualifications as local circumstances may render necessary. As to the approach as to what is a statute of general application and where the application such a statute may not be implemented, a useful discussion will by found in Hearne, J.‘ s judgment in Karimjee Jivanjee & Co. v. Official Receiver of the Government of Tanganyika the Trustee of the Property of Gorden McDiarmed (1936) E.A.C.A. Vol. 3 at p. 99. In that case an English act of 1888 was applied I was also referred to G.B. Patel v. D.M. Patel (1939) 6 E.A.C.A. 48 in which the Partition Act 1868 was applied in Kenya, by virtue of Article 4(2) of the Kenya Order in Council 1921. The authority for applying the Partition Acts to the present circumstances in Tanzania is not the same, of course, as that relied on in Patel’s case, but similar reasoning, I think, applies to the provisions of section 2(2) of Cap. 453. Further, when one considers Cap. 114, there seems no doubt. That Chapter is headed an “Ordinance to apply the English Law of Property and

(1969) H.C.D.

- 138 –

conveyancing to the Territory.” By section 2(1) of the Ordinance, the law relating to real and personal property etc. in force in England on the 1^st January, 1922, shall apply to real and personal property in the Territory in like manner as it applies to real and personal property in England, and the English Law, practice and conveyancing shall be in force. There is no doubt that the Partition Acts were an important feature with regard to tenancies in common. It is clear therefore that they are to be applied to this country; just as it has always been held, for instance, that the Trusteeship Act of 1893 is applicable. It the Partition Acts are to be applied in general, is there any feature which should be considered showing that the conditions prevailing in this country disfavor such application? I can think of no aspect which would preclude the application of the Partition Act in principle. Possibly it was felt that the consent of the commissioner has been obtained, and indeed, in the instant case clause 3 of the Right of Occupancy forbids the disposition of the whole or a portion of the land or buildings without previous written consent, nevertheless, that difference has never stood in the way of applying the English Law of Property procedure and practice of conveyancing in this country. Therefore, I see no obstacle in applying the Acts …….” (2) It was argued by learned Counsel for the defendant that the plaintiff has commenced a rash and expensive course of action by bringing this suit rather than making investigations and commencing by a procedure equivalent to an originating summons. Now such a summons would have covered, before 1922, applications for the determinations of questions of constructions arising under deeds or other instruments and certain applications under the Trustee act 1893, applications for the determination of certain questions arising out of he administration of an estate or trust and applications for the ascertainment of the heir-at-law (etc.) for the purposes of the Land Transfer act. Such applications were to be made in Chambers, (see Halsbury Laws of England, Vo,. 23, 1912 Ed. P. 186 & 187). It is to be observed from Halsbury’s Laws of England Vol. 21 1912 p. 846 that the practice and procedure generally is to commence the action by way of writ and statement of claim. Therefore, in principle I am not of the view that the procedure adopted in this case was improper.” (3) If I am right that the Partition Acts apply, then the parties may apply to the court for sale of the common property rather than partition. It would appear to be a case under section 4 of the Partition Act of 1868. As was pointed out in Patel’s case (following an English decision cited therein), section 4 confers a statutory right on the applicants to apply for sale, and the court’s discretion [not to order sale] is only exercisable where the person resisting the sale can show good reason why it should not be ordered. Therefore, unless the defendant can put forward reasons why a sale should not take place presumably the application would be granted. At the same time, no such disposition can be made without prior consent of the Commissioner for Lands. Here is another example where the courts must indulge in a dignified tussle with the Commissioner. The question is who is to have priority. It is suggested that the plaintiff ought to have sought the Commissioner’s consent before he brought these proceedings. It could be that the Commissioner might reply that he would not entertain a hypothetical proposition.

(1969) H.C.D.

- 139 –

and that unless the courts were willing to grant sale rather than partition, he would not consider whether he should give his consent. Again it could be said that there would be no good reason for the court to grant sale if it was clear that the Commissioner would not give his consent. It was urged that if the Commissioner was adamantly against the sale of the property, that would be a reasonable ground on which the court could refuse the application. There is unfortunately no procedure by which this conflict of interest is to be resolved. It is of interest to note that in the sale of land under execution proceedings, (see 0.21, r.90 of the Civil Procedure Code) It is provided that: - “90 – (1) Where no application is made and disallowed, the court shall make an order confirming the sale and thereupon the sale shall become absolute; Provided that where it is provided by any law that a disposition of property in the execution of a decree or order shall not have the effect or be operative without the approval or consent of some person or authority other than the court, the court shall not confirm such disposition under this rule unless such approval or consent has first been granted.” That rule appears to indicate that the court should not act by confirming the sale in those circumstances without the prior consent of the Commissioner. It might well be argued that the situation with regard to the sale of common property should follow a similar pattern. However, I think that in a matter of this nature, the proposal could put to the commissioner, on the grounds that a sale would be ordered unless for special reasons the court thought otherwise after hearing the defendant’s case. The Commissioner should be invited to indicate his stand on that basis that the sale would be ordered in all probability. If there is no objection in principle to the sale of the common property, the court could then go on to determine the position between the parties, after which, of course, formal consent to the disposition will be necessary. As far as this case is concerned, as the plaintiff pointed out, the position vis-s-vis the Commissioner will be a matter of evidence at the trial. If he fails to satisfy the court upon the point he conceded that his case might be defeated. I think that is correct. I accept that the Commissioner’s consent which cannot, in any event, be final consent until the case is heard, should not be a prerequisite to the bringing of the case”.

166. Mohamed Bandihai v. Vedasto Kabakama (PC) Civ. App. 33-M-69, 12/3/69, Seaton J.

This appeal arises out of a suit instituted in the Kishanje Primary Court to redeem a clan shamba. The shamba had been sold by the appellant, the original defendant No. 1, to original defendant No. 2, Stanislaus. The respondent Vedesto, who is a brighter of defendant No. 2, brought this suit some 8 years after the transaction claiming that he only became aware of it when he returned from a distant village to find the appellant, Mohamed, in occupation of the land. Vedesto claimed that the land had been given to Mohamed as a pledge for the sum of Shs. 1,400/-. Mohamed said that he had subsequently purchased the land originally obtained on pledge by giving an additional sum of Shs. 50/-. From the testimony, it appears that all three of the parties are related. Mohamed claimed that they all descended from a common great-grandfather,

(1969) H.C.D.

- 140 –

Bashabi. Mohamed’s father, Bandihai is the son of Bwemo and Bwemo, he claimed, is the son of Bashabi. Bashabi had another son whose name was Bakalemwa; he was the father of Ishemo and Kabakama whose sons were Stanslaus and Vedesto respectively. Vedesto did not admit this relationship saying that he did not know who Mohamed’s grandfather was but he admitted that he calls Mohamed his son and Mohamed is supposed to call him father. The assessors advised that the plaintiff could redeem the shamba and should be allowed to do so on refunding to Mohamed the money he had paid. The magistrate did not share the advice of the assessors being of the view that Vedesto was present when the sale took place and also that no right of redemption exists against a clan member. Accordingly, he gave judgment dismissing the claim with costs. The district court reversed this judgment on appeal. It held that the shamba was given to Mohamed on pledge by Stanslaus for Shs. 1,400/- and that an additional Shs. 50/- had been given for the sale but that Vedesto was entitled to redeem the shamba on repayment to Mohamed Shs. 1,450/- plus Shs. 300/- compensation for improvements. The learned district magistrate outlined the relationship of the parties as claimed by Mohamed and found: “I have scrutinized their relationship and assured myself that Vedesto is a close relative.” Nevertheless, he gave judgment that Vedesto is a close relative.” Nevertheless, he gave judgment that Vedesto is entitled to redeem the shamba. Counsel referred to CORY AND HARTNOLL, paragraph 555, which describes how a plantation becomes Kibanja Kioruganda (under family tenure) and to page 256 where it is pointed out that clan solidarity may be broken by members of the clan moving away, for example, or by relatives supporting opposing sides after a quarrel.

Held: (1) “It appears from the record in the present case that there was within the clan no moving apart and no break up or quarrel. The evidence of Stanslaus … confirms that all parties live in the same village and were on good terms. Learned counsel submitted this means that all the parties continued to form one “ihiga” (family). Had the parties broken up the family relationship and one of them formed another ihiga, then he would be regarded as an outsider. The case of Aloyse Ishengali vs. Malchial Lutainurwa, Appeal No. 18 of 1955 reported in the Digest of Appeals from Local Courts, Volume 111, concerned a claim for redemption of clan lands in Bukoba. In that case, the court disallowed the attempted redemption of sale of clan lands within the clan, i.e. both the vendor and the purchaser belonging to the same clan. The following passage is cited from the judgment of the Court of Appeal: “The principle underlying the law pertaining to clan lands is the protection of the family as a whole, and not the right claimed by particular individuals of that family. If redemption be permitted when sales have taken place within the family …. The process can become interminable.” The principle on which the case cited was decided is applicable to the present case. As there was no sale to an outsider, there can be no redemption of the sale by Vedesto.” (2) Appeal allowed and decision of primary court restored.

167. Mwehela Kibungo v. Mudable Muhungula, (PC) Civ. App. 48-M-69, 17/4/69, Seaton J.

The respondent moved from his father’s village to that of his uncle, the appellant, who allowed him to settle upon and cultivate a piece of his land. The respondent had four

(1969) H.C.D.

- 141 –

wives and numerous children. He grew cassava and bananas and built five houses on the plot. The appellant, who dispossessed the respondent, claims that he only allowed the respondent to live on the land and did not transfer to him any right over the land. The respondent alleged that he had bought the land from the appellant. When the respondent began building the houses, the appellant called two witnesses on the land, allegedly to witness that the land had not been sold. They were not shown the boundaries of the land nor were they offered money or a drink.

Held: (1) “According to the laws applicable for buying shambas or portions of land in Kasulu District among the Waha tribe, the land being sold including its boundaries should be seen and verified by the people who appear as witnesses. The witnesses are supposed to know the boundaries clearly and they should also be given pombe to drink or money be distributed between them in lieu thereof for the purpose of making sure and confirming the selling of the land.” (2) it would be manifestly unfair that a man who had been given land and who expended labour in cultivating an improving it and in building five houses thereon, should be summarily dispossessed merely at the whim of the original donor. There is no allegation that the land is being misused by Mudabe and it has been found by the lower courts that Mwehela has another shamba on which he cultivates.” (3) The appeal is dismissed.

168. Mboya v. Kitambia and others, Civ. App. 8-A-67, 24/3/69, Platt J.

This is an appeal from a decree of a District Court awarding damages against defendant for malicious prosecution. Plaintiffs sued after they had been charged with taking part in an unauthorized procession c/s c/s 40(1) and s. 43(1), Police Force Ordinance, Cap. 322. The charge resulted from a letter written by defendant to the Police, in which plaintiffs were said to have participated, and during which abuse was said to have been shouted, either at defendant or the High Court of Tanzania. A Police Sergeant investigated the mater, during which he took a statement from the defendant including a list of six potential witnesses. The defendant also visited the Police Station upon two occasions in relation to the investigation. The sergeant took statements from the named witnesses, and was satisfied that a prima facie case had been raised. The matter was reported to the Regional C.I.D. Officer, who made the decision to prosecute. Plaintiffs denied that they had drawn up a procession and gone through Moshi shouting abuse. It was their contention that defendant, harbouring a grievance over previous business dealings with plaintiffs, had brought about the criminal prosecution for the purpose of revenge. The magistrate clearly appreciated that there were four essential elements in an action for malicious prosecution a) that plaintiffs were prosecuted by the defendant; b) that the criminal proceedings were terminated favourably to plaintiffs; c) that the prosecution was brought without reasonable of probable cause; and d) that it was maliciously motivated.

Held: (1) “The learned Magistrate held that the appellant had in reality brought an allegation to the notice of the police which he knew was false and which could not have, therefore, been based on reasonable grounds. The learned Magistrate cited various authorities in support of this proposition such as GLIMSK v. MOIVER (1962) 1 A E. R. 696, and MALZ v. ROSEN (1966) 1 A.E.R. 10. I think there is no doubt that if a person goes the Police with an account which he knows to be untrue, then not only has he no reasonable or possible

(1969) H.C.D.

- 142 –

ground but also that that fact in itself is strong evidence of malice, necessary for a successful action for malicious prosecution.” (2) “On the question of malice, the magistrate was satisfied that it arose out of his grievance which he wanted to revenge and therefore he trumped up a false charge against the respondents. On his view of the facts, which as I say must be accepted as being quite reasonable on the evidence, I find that the learned Magistrate could conclude that the appellant had been activated by malice in bringing a groundless allegation against the respondents.” (3) “I return then to the beginning of the argument, namely whether it was the appellant who was the real prosecutor ….. For the appellant, it was argued that however much the appellant may have been at fault, one cannot go past the fact that the decision to prosecute was that of the police. For the respondents, it was argued that that was not so. I must consider in some detail the decision mainly relied on – Gaya Prasad v. Bhagat Singh, (1908) (Allahbad) 4 I. L. R. 30 & 32 All. That was a decision of the Privy Council. The decision appealed against was to the effect that the person who had given false information to the Police did not prosecute the plaintiff. He merely gave the information to the Police, and the Police after investigation apparently thought fit to prosecute the plaintiff ….. Their Lordships made the following observations:- “If therefore a complainant does not go beyond giving what he believes to be correct information to the police, and the police, without further interference on his part (except giving such honest assistance as they may require) think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the complainant; if he misleads the police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial before the magistrate; it would be equally improper to allow him to escape liability because the prosecution has not technically been conducted by him. The question in all cases of this kind must be – who was the Prosecutor? And the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion; the conduct of the complainant before and after making the charge must also be taken into consideration. Nor is it enough to say, the prosecution was instituted and conducted by the Police. That is again a question of fact.” If the law is properly stated that the mere setting of the law in motion is not the criterion but that the conduct of the complainant both before and after making the charge must also be taken into consideration, then the mere fact that ostensibly the police brought the prosecution is not the final test …. If it is true that the appellant brought a false allegation to the police supported falsely by his employees and so influenced the police to bring a prosecution against innocent people, it cannot be doubted that the responsibility for the prosecution was that of the appellant. On the facts found by the learned Magistrate, I thin he came to the right conclusion that the appellant was responsible for bringing a malicious prosecution. The damages he awarded have not been challenged, and appear reasonable and therefore the judgment is confirmed, with the result that the appeal is dismissed with costs.”

(1969) H.C.D.

- 143 –

169. Reverian Byamanyilwohi v. John Mutegana, (PC) Civ. App. 196-M-68, 27/11/68, Seaton J.

The respondent John claimed in the Primary Court a banana and coffee plantation, which he had inherited firm his deceased aunt, Bi. Gwezile, in 1956. The appellant Reverian disputed the claim insisting that he is the true heir, having been adopted by Bi. Gwezile as her son. John produced two Wills dated 20^th July, 1956 and 22^nd July, 1956 respectively, by which Bi. Gwezile bequeathed to him the plantation. Reverian produced a later will dated 15^th May, 1963 in which Bi Gwezile cancelled her previous bequest to John and conferred it instead on Reverian. Each party produced several witnesses who testified in support of his title. The primary court found that John’s will was still valid because Bi. Gwezile did not call and inform him of the cancellation of her previous bequest. However, the court held that Reverian was entitled to a portion of the himself and which he had been given by the deceased Bi Gwezile during her lifetime in the presence of John. Both assessors concurred with the magistrate in this judgment that the disputed plantation should be thus shared between the parties. On appeal to the District Court, John challenged that part of he judgment which awarded a portion of the plantation to Reverrian. The District Court, John challenged that part of the judgment which awarded a portion of the plantation to Reverian. The District court upheld the primary court’s decision, citing Cory and Hartnoll’s Customary Law of the Haya Tribe in holding that according to the Rules of Customary Law which were applicable at the time, that is to say, prior to G. N. 436 of 1963, the two 1956 wills are invalid since they were not witnessed by any clan member. However, the District Court gave effect to the invalid will since the latter was not questioned by the respondent Reverian, citing High Court Appeal (PC) Mwanza No. 239, 1966. The learned District Magistrate had a different ratio decidendi for upholding the disposition in Reverian’s favour. Whereas the Primary Court held Reverian was entitled to a share of he plantation because of a disposition inter vivos, the learned District Magistrate held the 1963 will to be valid and concluded: “My viewing the portions of the testator’s holding I have become both satisfied and happy that these are almost equal shares, as each of them had contributed to her guardianship and as the litigants possess equal degrees of relation to the testator.” Reverian has now appealed.

Held: (1) “It is nowhere indicated in the record when the testatrix died but at the hearing of this appeal, the appellant stated that it was some time in 1967. The law of wills, G. N. No. 463 of 1963, came into force on the 1^st October, 1963 but it was directed to be the Local Customary Law binding upon Africans in the areas subject to the jurisdiction of the Buhaya District Council by G. N. No. 605 of 1963, which came into force on the 1^st January 1964. Is it the provisions of the Law of Wills, G.N. No. 463 of 1963, or the customary Law prior to its promulgation which should determine the validity of Wills made in 1956 and 1963 but coming before the Court for enforcement in 1968? In their introduction, the learned authors of the Customary Law of the Hay Tribe are at pains to point out that their book can in no way be considered a code but that their book is a collection of Customary Law as it stood at the time of complication, which was 1945. they also note that rigid observance of small matters has never been a rule in the application of customary law, thus when their book states that 10 witnesses are necessary to a will, it is intended to convey that “approximately 10”, that is to say, 8 or 11

(1969) H.C.D.

- 144 –

would normally suffice. The object of the Local Customary law (Declaration No. 4) Order, G. N. No. 436 of 1963 was to state the law in a form as concise and accurate as possible and at the same to make such modifications as seemed expedient and compatible with written law. This may be ascertained by reference to section 53A of the Local Government Ordinance, Cap. 333, under which the order was made. No doubt it was though that the advantages of uniformity and predictability were greater than any possible loss of spontaneity and natural growth. It seems to me that to hold one is bound, despite G. N. No. 436 of 1963, to apply to the 1954 and 1963 wills inflexibly rules set out in 1945, would be to forego the advantages of the Declaration of Customary Law and to use the work of Cory and Hartnoll in a manner against which these learned authors had expressly warned.” The court here referred to Paulo Ferdinand v. Frugence Begutu, 1968 H.C.D. number 29. (2) It appears from the evidence in the present case that the appellant and the respondent are cousins, equally related to the deceased Bibi Gwezile and equally entitled to be her heir-at-law. If she had preferred either by her will and disinherited the other, the latter could have applied to the family council, or failing that the court, as to whether the disinherited the other, the latter could have applied to the family council, or failing that the court, as to whether the disinheritance was justified. [Clause 35, Law of Wills, 1963]. It seems that by her bequest to John and her inter vivos gift to Reverian Bi. Gwezile has given approximately equal shares to each potential heir-at-law. As both magistrates of the lower courts and both assessors concur that this is an equitable sharing of the estate, I see no reason for this Court to interfere.” Appeal dismissed.

(1969) H.C.D.

- 145 –

CRIMINAL CASES

170. R. v. Kasella Bantu and other, Crim. Sass. 47-TABORA-1969, 21/4/69, Georges C.J.

The seventeen accused persons in this case were jointly charged with the murder of four men. It was alleged that the first accused, Joseph Kasella Bantu, the then member of Parliament for Nzega East, counseled and procured the killing of these four persons and that the other sixteen accused were part of a large group of villagers who set out with the intention of killing all cattle thieves, in accordance with the counsel and advice given by the first accused. Of the latter group, fourteen were found guilty of murder on the grounds that they were members of an alarm group formed after a cattle theft, and that they shared in the common intention of the group to kill thieves – “not all thieves, as contended for by the prosecution, but rather thieves who were suspected of having taken part in this particular theft or of having information with regard to it which they would not disclose”. The remaining two were acquitted. The findings in this part of the judgment are complex and largely factual, and for this reason are not reported here. As for the first accused, due to the distinctive nature of the charge against him, the court dealt separately with him, making separate findings of law and fact which are selectively reported, below, together with a preliminary procedural point.

A) Procedural Holding

“At the beginning, of the case, an objection was taken to the form of the charge in that it included more than one count of murder against each of the accused person. I allowed the charge to stand in the form in which it was presented, because it appeared to me that having regard to the nature of the case being put forward by the prosecution, it would be quite unreal to select the death of any particular individual, charging some of the accused persons in respect of that death. It was clear also that it would not have been possible to lead evidence to establish responsibility for the death of any one of the deceased persons without including references to the death of the other deceased and the involvement of the accused persons therein. Authorities were quoted from the Digest of East African Criminal Law Cases, although, unfortunately, none of the law reports themselves was available. It is clear that it has been held that in Tanganyika there is a rule of practice amounting almost to a rule of law that no more than one count of murder should be included against any one person in a charge. The Court of Appeal, however, has held that unless there is prejudice to an accused person, a trial will not be set aside merely on the ground that more than one count of murder has been included in a charge. There is nothing in the language of the Criminal Procedure Code itself which seems to make the course unlawful, and exercising my discretion judicially in this case, I was of the view that the charge as framed would clearly allow a proper determination of the matter and would in no way prejudice any of the accused persons”.

(1969) H.C.D.

- 146 –

B) Selected Evidence and Findings Relating to the First Accused, Kasella Bantu.

(1) Evidence

It was agreed by the prosecution and the defence that Kasella Bantu addressed a meeting at Sungwizi on 20 September 1968. The court found (a) that this meeting lasted some two to three hours, beginning somewhere between 9.00 and 10.00 a.m. and ending somewhere between 12.00 and 1.00 p.m.; (b) that the principal subject for discussion was the problem of cattle theft; and (c) that the accused spoke on the subject of cattle theft for perhaps one to one and a half hours. The main disputed point between prosecution and defense was what was said during that time. The prosecution brought three principal witnesses to testify on the content of the speech. The evidence of the third one, Isubi Kasegeno, was rejected by the court on the grounds that he was evidently not speaking the truth. The two other witnesses were Tadeo Kamwizi, the Chairman of the meeting, and Paulo Simon, and Assistant Divisional Executive Officer who was present during the meeting. Their testimony, as summarized in the judgment, was as follows: “Tadeo Kamwiizi states that the accused opened the meeting by pointing out that cattle stealing in the area had become far too common, that Government had attempted to deal with the matter by detaining cattle thieves, that this had not worked, that he, the first accused, had become known among his fellow Members of Parliament as the member for cattle thieves, a description shared by only one other member, the representative for Iramba West. In these circumstances, he says, he had brought medicine for cattle thieves. He described this medicine by the Kinyamwezi word “binjage”, which can generally be translated as “remove them”, but could have meanings varying with the context in which it is used. Tadeo Kamwizi stated that the crowd then asked how they to be removed were and the accused replied with an illustration. He asked his audience whether they knew a person called Kaselle. The audience replied that they did, whereupon he asked where was Kaselle now. The audience replied that he had been killed. The first accused asked where were the persons who had killed him? The audience replied that they had all been acquitted and were at home. Thereupon, the accused stated that when people killed in a group, the Government took no action. Tadio Kamwizi’s evidence is that the people thereupon understood the meaning of the Kinyamwezi word “binjage” and clapped their hands. They also asked whether they should start killing immediately as there were thieves there present at the meeting. The accused replied that they should not but that they should wait until a theft had taken place. Whenever a cattle theft occurred, there should be an alarm raised people should gather, search for the known thieves in the village, arrest them and kill them the Assistant Divisional Executive Officer, Paulo Simon, also stated that the accused complained that detention of cattle thieves had not stopped stealing, complained that he was known as the Member of Parliament for cattle thieves and that some

(1969) H.C.D.

- 147

other medicine should be found. He also testified that the accused used the word “binjage” and that a voice asked “How should we move?” There upon, the accused replied that there had been a person at Kinga called Kaselle and that person had been killed because of cattle stealing and that the persons who had been arrested for killing him had been set free. He then advised the villagers to follow that example. One of the villagers asked when should they start, and he said not immediately. He said that they should wait until the thieves stole and then that work should be started. An alarm should be raised, all people should respond to the alarm and go to look for the thieves. After getting the thieves, they should be killed. According to his understanding, the accused was referring not only to the thieves who had been responsible for the particular theft, but all thieves. He was quite firm that the illustration about Kaselle had not been brought out by way of question and answer between the first accused and the audience, but had been directly narrated by the accused in answer to the question “How shall we move them?”. “The witness Paulo Simon had been cross-examined at some length at the preliminary enquiry. In addition to what has been set out as his evidence in chief earlier on, he agreed that the first accused at that meeting had said that he was going to attend Parliament and if the thieves stopped stealing, he would not be angry with them, but if they did not stop, he would prescribe strong medicine. He also admitted that the accused had said that when a thief stole, he should not be followed to retrieve the stolen cattle, and if the thief used weapons, the same would be used against him. He also agreed that the accused had said that the people should not be afraid of the Government as others had used force under the circumstances in respect of one Kaselle and they were taken to Court and released. He agreed that the accused said that when cattle were stolen there should be a hue and cry against the cattle thieves, but that the Divisional Executive Officer himself should not attend but should remain behind to deal with the rounded up thieves. He agreed that the accused advised that the Divisional Executive Officer should then detain the rounded up thieves for twenty-four hours and question them so that they should reveal which of their fellow thieves had stolen the cattle, and that if they did not co-operate they should be briefly released and then the arrested again, until such time as they decided to talk. These admissions had been made on the first day of his cross-examination the preliminary enquiry. There had been an adjournment of the Court, and on the following morning after the resumption, the witness had stated that he had been mixed up on the day before, that the accused had not in fact said any of the things that he agreed that he had said at the Sungwizi meeting and that some of these things ad been said at a meeting held some time the year before at Ulaya.” The only witness for the defence was the accused himself, who gave the following account of his speech at the meeting: “He said that he had mentioned various solutions to the cattle stealing problem which had been discussed in Parliament, including cutting off the hands of thieves, blinding them and killing them, that so far he had not taken any active part in these discussions but that now he had come to ask their permission to propose a bill in Parliament to deal with this problem of

(1969) H.C.D.

- 148 –

cattle stealing, that the bill should provide that villagers should raise a hue and cry and follow cattle thieves, and that if the thieves used force in resisting capture, the persons in the hue and cry should be allowed to use force against them and that if death resulted, none of them should be tried. He further proposed that cattle thieves after their sentence should be sent to Mafia. The accused agreed that he used the word “binjage” with reference to this removal of cattle thieves to Mafia. In the meanwhile, pending the proposal of this matter in Parliament and its acceptance, as a temporary measure, when cattle were stolen a hue and cry should be raised and villagers should set out, round up all the local reputed cattle thieves and take them to the Divisional Executive Officer, who should question them as to who had stolen the cattle. He made this suggestion because he was satisfied that local cattle thieves could always give useful information about any theft of cattle which had taken place in their area. In this way, detection of the thief would be stepped up. If the thieves proved unco-operative, then the Division Executive Officer should release the men after twenty-four hours, but quickly rearrest them for further questioning. He stated that he used the example of Kaselle in reply to a question as to what should be done with brazen thieves who threatened to break into their houses at night and use violence on them unless they supplied drink. In question and answer from, he brought out from his audience that one Kaselle had been killed in such circumstances and his killers had not been punished. He ended by warning people who behaved in that way that the fate of Kaselle might befall the.”

(2) Findings

(a) The court found that the evidence of Paulo Simon was unreliable, in view of his admissions under cross-examination, and his later attempt to repudiate them. The court stated: “It is obviously of the greatest importance in a case in which it is alleged that an accused person indicted others by words to commit an offence that the words used should be very strictly proved. Reports of words spoken at public meetings where no notes or other records are kept are notoriously liable to distortion and misreporting. The prosecutions have cited authorities in support of the general proposition that where rural Africans are concerned, Courts are generally not expected to look for the same standards of precision that one might seek in other societies where general standards of education are higher and powers of observation and recollection perhaps more highly developed as a result. I would accept this proposition. On the other hand, I do not think that it can be used to replace the standard of sureness and certainty which must in any case be reached before an accused person can be convicted. The admissions made by Paulo Simon as regards the contents of the speech delivered by the first accused appear to me to go a long way towards supporting the version given by the accused. At the lowest, it appears to me that the fact that his recollection of events changed overnight after an adjournment is a matter of considerable suspicion. It may be that on reflection he realized that the admissions which he had made to a large extent negatived the strength of his evidence, and he wished as far as it was within his

(1969) H.C.D.

- 149 –

power to correct that. I find it my self difficult to believe that the witness would have mixed up two meetings held by the first accused at two different places and at two different times at least a year apart.” (b) The court further remarked, concerning the witness Tadeo Kamwizi that he did not impress the court in the witness box as a responsible person whose word could be acted upon. (c) The court rejected the prosecution’s argument that the accused’s guilt was indicted by the fact that he failed to call witnesses, who were available, to support his story. The court stated: “I would agree that there are circumstances in which the failure on the part of an accused person to call a witness whom he could have called might lead to an inference adverse to him being drawn. This case does not appear to me to fall within this category. It is the duty of the prosecution at all times to prove with certainty that which they set out to prove. Apart from this, I would have no doubt in my mind at all that the accused would not find it easy to persuade anyone to come and testify on his behalf. He is now in detention, from which it and reasonably be inferred that he is a person who is considered to have acted in a manner prejudicial to the security of the State, or at least on likely so to do. It is only natural that people should not seek close association with such an individual. Accordingly, failure to call witnesses in support of his version of his speech is not a cogent factor from which an adverse inference should be drawn against him.” (d) Finally, the court found that: “On a full consideration of all the evidence led in this matter, I am not satisfied that the accused did use the words that Tadeo Kamwizi said that he did. The report of the speech which the accuse himself has given; including therefore to the death of Kaselle, appears to me to be quite reasonable. Looking at this as a speech, I am not satisfied that it was an order to kill, nor indeed has the prosecution so argued. It was, in my view, a dangerous speech in that it could easily have been misunderstood to mean that he use of violence against cattle thieves was desirable. There is evidence to establish that a section of the group who killed the decease persons were saying that the order had been given by Kasella Bantu. I accept this as true. It is clear also from the evidence of Minza Sengu and Lyongo Islila and Kasindi Kulimba that this was not the leading section of the group most directly connected with the violence, but a middle section. This evidence cannot, in my view, establish that the first accused ever gave such an order. It is easy to understand in a setting where the use of violence against all thieves is more widely held than is generally appreciated, that the words which the first accused said he used could have been understood by the angry villagers as a licence to extract information by violence from all known thieves and beat severely those suspected. The emphasis should always be on the need for close adherence to the normal processes of law enforcement through community self-help, rather than on community self-help pure and simple, since the course of this can never be accurately predicted. This does not, however, in my view, make the first accused guilty of the offence of counseling and procuring the death of the cattle thieves in the circumstances alleged by the prosecution.

(1969) H.C.D.

- 150 –

Accordingly, I would find the first accused not guilty as charged on any of the counts.” (e) In the summing up to the assessors, the court gave, obiter, the following interpretation of the offence of counseling: Advocate for the first accused in this case argues that ….. There must be a counsel or an advice to kill a particular person. He argues that unless the accused person had said “Go and kill Kidirigi” or “Go and kill Makukilo”, then he could not be held responsible if Makukilo or Kidirigi was killed. That is, he said the particular felony which is counseled must be clearly particularized. Now, I will tell you as a matter of law, which you must accept, that I do not think that this proposition is correct. Once there is an advice to go and commit a particular felony – as in this case to kill – and once the group is small enough so that its members can be identifiable as the persons intended to be killed, then I think it can be said that there has been a counsel or procurement to do that killing. So, for example, what is important in this case, assuming the first accused did say what it is said he said, is whether or not the group of persons who would be suspected cattle thieves in Sungwizi is a group small enough to be readily identifiable as the persons whom the accused intended should be killed. For example, you heard the discussion which I had with the advocate for the first accused; if, for instance, someone stood up in Tabora and said all Wanyamwezi should be killed, and someone set off to kill them, it would be extremely difficult to so that that person who said all Wanyamwezi should be killed was responsible for the death of any particular Mnyamwezi who happened to be killed shortly afterwards, because the number of Wanyamwzi in Tabora is so large that it is difficult to say that he intended the death of any particular person; and this offence would become another offence, which we know in law, called “incitement to violence.” On the other hand, if, for instance, somebody stood up in Tabora, where he knows there are only two lawyers, and says that all the lawyers in Tabora should be killed, and someone immediately sets out to kill them, it would not be difficult to say that there was an incitement to kill those particular persons because the group would be so small as to be readily identifiable as those particular individuals. So in law, therefore what you will have to make up your mind about is that the group of persons known as cattle thieves in Sungwizi was so small as to be readily identifiable as the persons the accused intended to be killed if he said what It is alleged that he said. That is a question of fact which you will have to decide as the assessors.”

171. John Joseph v. R. Crim. App. 247-A-68, 26/2/69, Platt J.

The appellant was convicted of cheating contrary to section 304 of the Penal Code and sentenced to three years’ imprisonment. The appeal was admitted to consider whether the offence disclosed by the evidence was one of cheating or obtaining money by false pretences. On the 27^th May, 1968, the appellant had had constructed for himself a sealed tin containing turbid water. He then got the witness Ndesiotaw Sindate at the bus stand and explained that he was in difficulty. He asked Ndesiotaw to advance him Shs. 30/-. In return for which the appellant would deposit his tin containing groundnut oil valued at Shs. 60/. It appeared as if the tin had a few drops of groundnut oil on the top. Ndesiotaw

(1969) H.C.D.

- 151 –

understood that the appellant was a relation of a neighbour whom Ndesiotaw knew. Ndesiotaw then completed his purchases and decided to help the appellant. The latter put his tin on to the bus for Ndesiotaw and as Ndesiotaw was giving him the money, the Police who had been watching the game, arrested him. The tin was found to contain only water. It was accepted that Ndesiotaw had believed the appellant’s general story and that his security would be the groundnut oil in the tin. There is no doubt that the appellant had obtained the Shs. 30/- on the false representation that he was offering Ndesiotaw a tin of groundnut oil as a security.

Held: “The question was of what type of fraud was the appellant guilty? The learned Magistrate considered at length the question whether the offence of cheating would arise out of a private transaction. He quoted learnedly from Rhodesia and Nyasaland (as they then were) and correctly concluded that under the present Penal Code, it was not necessary to prove a cheat affecting the public at large. The code does not follow the English Common Law in this matter. But in not so doing, the distinction between obtaining by false pretences and cheating was largely obscured. All that is left is that cheating is perpetrated by a trick or device while obtaining by false pretences depends on a false statement of existing fact. But considering that such a false practice may be made by an act or conduct, the distinction may be very fine, if not non-existant. Take for instance the case of R. v. BULL (1877) 13 Cox. 608. The facts are conveniently set out in Russell on Crime 11^th Ed. Page 1357. The prisoner was in the service of a railway company and one of the rules of the company was, as the prisoner knew, that no servant should be entitled to claimed payment of any wages due to him on leaving the company’s service, until he should have delivered up his uniform clothing. On leaving the service, the prisoner gave up part of his uniform and was asked for his overcoat. The prisoner went away and soon afterwards returned with an overcoat, which in fact was not his as he knew. He gave up this overcoat and o obtained his wages. He was convicted of obtaining money by false pretences. He had presented a coat which by his conduct he falsely represented to be his own. Was it not a trick or device? Presumably it was. It was certainly a false pretence as well. The old English cases covered false tricks or devices in a private transaction where by property was fraudulently obtained. In the instant case, the appellant said his tin contained groundnut oil. It appeared from the fact that some groundnut oil was on the top of the tin, that what was stated to be the contents was true. While the manufacture of the tin with water in it might be seen as a trick or device, nevertheless, it can hardly be doubted that it was the appellant’s statement that was the main deception, no doubt aided to some intent by the state of the tin. Had the appellant merely produced the tin that would not have been sufficient to deceive Ndesiotaw. I am inclined to the view that where money is obtained on the strength of a statement as to the contents or quality of some object, it is the false statement concerning the contents or quality, rather than the presence of the thing that is material. For this reason then I would prefer to base the appellant’s conviction on section 302 of the Penal Code – that of obtaining by false pretences – rather than cheating. But in saying so, I accept that it might be that

(1969) H.C.D.

- 152 –

either section could be employed, according to the circumstances of particular cases. Even in the present case the distinction is narrow indeed. Nevertheless, I shall substitute a conviction under section 302 of the Code by virtue of section 187 of the Criminal Procedure Code.”

172. James Malawi v. R., Crim. App. 28-M-69, 11/3/69, Seaton J.

The appellant was convicted of knowingly receiving stolen property under section 311(1) of the Penal Code. The evidence for the prosecution showed that the complainant’s house was burgled on the night of 9^th June, 1968. A number of articles including a Phillips radio and cash were stolen. On 20^th October, 1968, upon information received, two police constables went to the appellant’s house armed with a search warrant. They found the appellant seated outside his house. When informed that they wished to search his house for a Phillips radio, the appellant denied he had any such radio. While the police were proceeding to search outside the appellant’s house, his wife came out of the house with a radio. After a by o means unequal struggle, the two police officers managed to wrest the radio from the appellant’s wife and arrest her. During the struggle, the wife shouted that her Shs. 400/- and the radio were going to be lost and she did not know the radio was stolen. The appellant disappeared but was arrested the next day at a bus stop.

Held: “There was no doubt of the ownership of the radio as the complainant identified it by its serial number and produced his receipt of sale and broadcasting licence. The appellant explained he bought the radio from D.W.1 for Shs. 400/-. The main question was whether the doctrine of recent possession applied and whether either presumption, - that is to say, that the appellant was the thief or a guilty receiver – could properly be applied. The learned magistrate decided to invoke the doctrine; he was impressed by the appellant’s courage in calling as his defence witnesses the alleged seller of the radio to him and a witness to the sale. Both of these defence witnesses were in remand prison with the appellant and, perhaps understandably, vigorously dissociated themselves from any transaction involving the radio. The appellant’s conduct in denying possession of a radio, in refusing co-operation to the search party and in taking flight when the radio was produced by his wife was considered by the trial court as justifying the finding that he knew the radio was stolen or feloniously obtained. Although 4¹/₂ months might not be considered too lengthy a period in which to invoke the doctrine of recent possession when articles of rarity or great value are involved, learned State Attorney was not prepared to support the application of the doctrine in the present case. He pointed out that a radio is a relatively common possession in present –day households in Tanzania. He also submitted that the appellant’s explanation that he had bough the radio for Shs. 400/- could reasonably be true; it was consistent with his wife’s remarks when the radio was seized. As the complainant himself estimated the value of the radio at Shs. 370/-, the purchase of it by the appellant for Shs. 400/- would not indicate knowledge that it was stolen. For these reasons, the learned State Attorney did not support the conviction which, I am of the view that it would be unsafe to uphold. The appeal is accordingly allowed.”

(1969) H.C.D.

- 153 –

173. William s/o Simon @ Mmari v. R., Crim. App. 178-A-68, 15/1/69, Platt J.

The appellant was convicted of stealing Shs. 130/- as a public servant contrary to section 270 and 265 of the Penal Code and sentenced to the minimum sentence. At the material time between December, 1967, and March 1968, the appellant was employed as a Forest Guard at the Masama Lukani Forest, and his duties included supervising the proper use of timber. The procedure was that a person whishing to fell and cut timber, had to get a Part 1 or A licence on payment of Shs. 30/- fees. He would then approach the Forest Guard and the tree having been felled, the guard would measure it in order that the Part 11 or B licence could be issued. On the strength of the measurements, the necessary fees would be calculated, and on payment of them, the Part 11 or B licence would be issued. The tree would then be stamped, allowing the licencee to cut it into timber. In the event of the procedure not being followed, there was provision for stamping the tree, so prohibiting it being made into timer. In December, 1967, the main witness Shelekino approached the appellant and asked what he had to do to be able to cut timber. The appellant is alleged to have replied that no new licenses were being issued but that a Part I licence, which had been issued to one Phillemon, had not been used. It is not disputed that Phillemon’s licence had expired in November, 1967, and that although a tree had been felled, Phillemon had not cut it into timber. The appellant said that he would transfer Phillemon’s licence to Shelekiro and took Shselekiro to the site and showed him the tree. Shelekiro agreed to pay the fee for the licence and did so in the presence of the witnesses. He then received Phillemon’s Part I licence. The appellant then took measurements of the tree and told Shelekiro that he would have to pay a further Shs. 100/- for the Part 11 licence. Shelekiro again paid this money to the appellant. The appellant told Shelekiro that he would go to the Forest Office in Moshi and get the Part 11 licence for him and for this purpose Shelekiro gave him the Part I licence to which the appellant attached the measurements of the tree. This occurred in January, 1968, and sometime later, the appellant informed Shelekiro that due to the pressure of work in the Forest Office, he had been unable to get the licence. But he said that he was the responsible officer for permitting Shelekiro to cut up the timber. Shelekiro and his employees then proceeded to do so. But on the 18^th March, 1968, Mr. Kuru Salim, the Forest Project Officer, stopped the work as he found the tree unstamped.

Held: (1) The question is whether the accused’s actions amounted to theft by a public servant. “The two payments were not of identical character. From Shelekiro’s evidence it appears that he purchased the Part I licence from the appellant thinking that he was the authorized agent of the Forest Office, and paid the fees direct to him. Whereas in the case of the Part 111 licence, he understood that the appellant would take the fees paid together with the documents and obtain the licence for him. As far as I can see, the appellant was to act as Shelekiro’s agent in getting the Part 11 licence. There is no doubt that on the evidence of Mr. Shelekiro and the period of the licence extended without the authority of the licence issuing officer

(1969) H.C.D.

- 154 –

at the Forest Office ….. It seems clear that the appellant had no right to act as he did and that he must have known this. What happened was that Shelekiro honestly thought that he had purchased the licence from the Forest Department, and that he had paid the necessary fees to its authorized agent. He discovered however that he had no licence at all and that the money had never reached the proper recipient. The question then is whether the appellant stole the money by virtue of his employment or obtained the money by false pretences. There is no doubt that the transaction was completed as far as Shelekiro was concerned and that he had parted with the property in the money to the appellant as the agent of the Forest Department. It is also clear that as the appellant had not issued a valid licence at all, that the Department could not claim the money. Nor had the appellant been authorized to issue the licence. It follows then that the appellant was engaged on a frolic of his own and that he had obtained the money falsely pretending that he was entitled to transfer the licence and receive the fees. He was not the Department’s authorized agent in these matters. Therefore in my opinion the appellant could not be properly convicted of theft by public servant as far as the payment of the Shs. 30/- is concerned.” (2) “Turning then to the second payment, Shelekiro appears to me to have understood that the appellant was not in a position to issue the licence Part 11, but that by entrusting him with the Part I licence, the measurements, and the estimated fees, that the appellant would obtain the licence for him. Nothing was said that it was the appellant’s duty to obtain the licence, which in fact, it was not. It was a promise by the appellant to do a future act on behalf of Shelekiro. It seems to m that as again the appellant was not acting in the course of his employment, that for this transaction he was not the agent of the Department but the agent of Shelekiro. Therefore he was not acting as a public servant and the money in his hands was not the property of the Department but the property of Shelekiro. Having falsely denied receiving it, it is clear that he must have converted it to his own use. Accordingly he was guilty of theft from Shelekiro.” (3) “The difficulty remains that the appellant was charged with stealing the aggregate sum of Shs. 130/-, and so convicted, whereas in my view, he ought to have been convicted of obtaining Shs. 30/- by false pretences and the theft of Shs. 100/-. I know of no authority for converting part of a sum alleged to have been stolen into a conviction for false pretences and substituting a conviction for the remainder into a lesser type is to substitute a conviction of theft of Shs. 100/, and acquit the accused as to the balance of Shs. 30/-.

174. John Maduhu v. R. Crim. App. 881-M-68, 29/1/69, Mustafa J.

The three appellants were jointly convicted of stealing 25 span of telephone copper wire, the property of the East African Posts & Tele-communications Corporation and each was sentenced to 3 years imprisonment together with 24 strokes of corporal punishment. The trial magistrate was of the view that the provisions of the Minimum Sentences Act applied to the offence.

Held: “As regards sentences, I am of the view that the trial magistrate was wrong to hold that the offence committed was within the provisions of the Minimum Sentences Act. The E. A. P. & T. Communications Corporation is not a body included

(1969) H.C.D.

- 155 –

the Schedule to Part I to the Minimum Sentences Act, and it cannot be said that it is part of the Tanzania Government. I will, therefore, set aside the sentence of corporal punishment imposed on the appellants and reduce the sentence of imprisonment from 3 to 2 years each.”

175. Ambari s/o Zanga, Crim. App. 82-D-69, 24/3/69, Hamlyn J.

The appellant was convicted in the District Court of Tanga of offences of burglary and stealing, contrary to sections 294(1) and 265 of the Penal Code. The evidence shows that the accused, during the hours of darkness opened a door leading into an enclosed yard (which it appear has no roof but into which the house door opens) and took therefrom some articles of clothing which were hanging there. He was apprehended with the stolen property in his possession.

Held: “Learned State Attorney supports the conviction for burglary, but I feel that this can hardly be upheld. The evidence is not very specific but I take it to show that the yard though enclosed with a wall, was an open one above, such as is frequently encountered in this country. Certainly, if it were roofed and formed, as it were, a covered annex to the main building, it was the duty of the prosecution to make this clear from the evidence which they adduced. In the absence of such evidence I must take it that the “yard” to which the witnesses refer was an enclosed plot though open to the skies. Despite learned State attorney’s view on this matter, I cannot find that such area was or formed part of a dwelling-house under section 294 (1) of the Penal Code. Section 5 of the Code gives an interpretation of the word “dwelling-house” and despite the wording of the latter part of the description in that article; I find that the yard does not conform to the requirements of a “building or structure” which is a dwelling-house. While it certainly is adjacent to the dwelling-house proper and there is a n immediate communication between it and the main building, the description is confined to structures of the nature of a room and not merely to a walled enclosure open to the skies. This being so, there can have been no “burglary” in the legal sense of the term and the appeal must consequently succeed in so far as the first count is concerned.”

176. Munubhai R. Patel v. R. Crim. App. 674-D-68, 2/5/69, Daff J.

This is an appeal by the Director of Public Prosecutions by way of case stated against the decision of the Resident Magistrate Dar es Salaam, acquitting the respondent on six counts of theft c/s 265 of the Penal Code. The prosecution case was that one Jeram Kara was employed by Messrs. Mtibwa Saw Mills Limited, and one their behalf he received cheques which it was his duty to ledge in the bank, the proceeds to be credited to his employers’ account. Kara was indebted to the accused in the sum of 3,000/- and when pressed for payment he entered into an arrangement with the accused whereby cheques which were drawn in favour of Messrs. Mtibwa Saw Mills Limited were credited to the account of the accused, the latter then using the monies so ledged as if they were his own. The magistrate had no doubt that had the accused been charged with stealing the cheques, and not the proceeds of these cheque, conviction was inevitable, the stumbling block to a finding of guilty, on all the counts preferred, being the two decisions cited by Mr. Kapila in his arguments before the court.

(1969) H.C.D.

- 156 –

The earlier of two authorities quoted was R. v. Davenparte 1954 I AER. 602 and reference to this case was made in the judgment of Rudd Acting C.J. (as he then was) in Shiv Kumar Sofat v. R. 1957 E.A. 840, which was the second authority relied on by Mr. Kapila. The gist of these two judgments and as argued by Mr. Kapila is that while the accused may have been guilty of either stealing the cheques or of receiving stolen cheque he was not guilty of stealing the proceeds of the cheques which is what the prosecution had alleged nor could he be found guilty on the charges preferred of stealing the cheque.

Held: “With respect to all concerned it appears to me that the judgment of the Court of Appeal in Menzour Ahmed s/o Sheikh Soleh Mohamed v. R. (1957) E.A. 386, which was referred to by the learned judge in the Sofat case, holds the answer to the problem that was facing the learned magistrate ……. In that case the accused was convicted of theft of a sum of 3, 000/- although in fact he stole a cheque for that amount by converting it to his own use without receiving cash or other money in exchange for it. In upholding the conviction the court of Appeal said: “It seems clear that in England proof that a cheque has been embezzled does not satisfy an allegation in an indictment that money has been embezzled. But in Kenya “money” is defined in s. 5 of the Penal Code as including, amongst other things, cheques …… it is permissible to look at the definition of “money” in the Penal Code for the purpose of interpreting a charge under that statute of theft of a sum of money. Although the word “money” was not used in the charge, a “sum of Shs. 3,000/=’ is in fact money. The definition of “money “could therefore be imported into the charge so as to make the words “the sum of Shs. 3,000/-“ embrace a cheque for the sum of Shs. 3,000/-. Accordingly, the words, “the – sum of Shs. 3,000/-“sufficiently described a valid cheque for the amount …….” Accepting the distinctions enunciated in that extract as being the law applicable to the present case and in applying what was stated by the learned Vice-President and bearing in mind that the definition of money in section 5 of the Kenya Penal Code is similar to the definition in s. 5 of our Penal Code can it be said that the misdescription in the charges preferred against the accused prejudiced him in anyway? …. If the accused was prejudiced, which I hold he was not, then I would agree that a conviction would not be justifiable but in all the circumstances of this case it is patently clear that he was aware of the nature of the charges preferred against him and his defense was geared to meet those charges. The case is accordingly remitted to the trial magistrate with a direction to find the charges on all six counts proved and thereafter to deal with the accused according to law.”

177. Salum s/o Sefu v. R. Crim. App. 748-D-68, 24/1/69, Duff J.

The four accused were jointly convicted on two counts of assaulting a police officer in the due execution of his duty c/s 243 (b), Penal Code, on one count of malicious damage to property c/s 326, Penal Code, and on one count of creating a disturbance c/s 89(1) (b), Penal Code each accused was fined a total of Shs. 550/- or 9 months’ imprisonment in default of payment. It appears that the four accused together with four other persons were charged in other cases and were remanded in custody by an order of the District

(1969) H.C.D.

- 157 –

Court at Utete. After being remanded, the prisoners while on their way to the remand prison, raised objections to the order of the learned magistrate, in consequence of which they were taken to the police station. At the police station it was alleged that they assaulted two constables, damaged the clothing of none of the constables and created a disturbance within the precincts of the police station.

Held: “When admitting this case to appeal, it occurred to me that a charge involving disorderly conduct in a police station, which is an offence contrary to section 101(1) of the Police Force Ordinance, Cap. 322 could possibly have been more suitably preferred against the accused, rather than an offence contrary to section 89(1) (b) of the Penal Code. The crucial element in the offence mentioned in section 89 (1) (b) is the threat to the peace, and this offence is essentially one of provocation. The persons present who could have been provoked were the police, and it could not be suggested that they would act with anything but due professional restraint. A few years ago it was held that experienced police officers are clad in a “spiritual asbestos” when it comes to the likelihood of corruption by absence literature, and it could be equally argued that they are, by virtue of their occupation, less likely to be provoked by brawls or disturbances. It has also been stated that police officers must expect abuse and disorderly conduct and are not expected to be provoked into taking any retaliatory action. A police officer is a peace officer, and it follows that in all the circumstances of this case it was most unlikely that there was a threat to the peace. In these circumstances it appears that the charge in the fourth count was totally misconceived and should not have been preferred.” Appeals allowed in part.

178. Damian Christopher v. R., (PC) Crim. App. 148-M-69, 29/4/69, Seaton J.

Appellant was charged in the primary court with stealing and housebreaking. When the charge was read over to the appellant, he pleaded guilty. Then the complainant was affirmed and stated the facts. The record indicates that after this the court noted: “No cross-examination by the accused. He pleads guilty on both counts.” Then the primary court magistrate convicted the appellant on both counts as charged.

Held: “It will be noted from the above that the trial court did not follow meticulously the procedure outlined in the Primary Courts Criminal Procedure Code, the Third schedule to the Magistrates Courts Act, Cap. 537…….. In the instant case, it would appear that the appellant was never asked after the complainant stated the facts whether he agreed that the statement was true. The mere fact that the appellant did not cross-examine the complainant cannot be taken as an indication that he admitted the truth of all the fats. He may have thought that he would also at a later stage be permitted to give an explanatory statement. In his memorandum of appeal to this court, the appellant has alleged that though the court recorded that he pleaded guilty to both counts, this is not true as the statement which he gave before the court was not the one which was written in the judgment ….. the district court on appear was satisfied that the appellant had unequivocally pleaded guilty and hence dismissed his appeal again conviction ….. It would appear to me, however, that the provisions of section 27 and section 28 of the Primary Courts Criminal Procedure Code are precautionary and they are designed to obviate just the kind of situation which has arisen in the present case. After a

(1969) H.C.D.

- 158 –

plea of guilty is recorded, the court should proceed to hear the facts. It is not necessary for the complainant at this state to be affirmed. The court should then enquire of the accused person if he agrees that these facts are true, and if he does agree that they are true, then his signature should be taken or at least he should be invited to append his signature so that there is no doubt at a subsequent appeal that the appellant has unequivocally pleaded guilty. Because there was some irregularity in the procedure followed in the present case and because the appellant has alleged that he did not pleaded guilty and that the bicycle was given into his possession by the complainant and not stolen, it would appear that it would be safer to remit this case for re-trial. Appeal allowed.

179. Juma King’ombe v. R., Crim. App. 67-M-69 28/3/69, Bramble J.

The appellant was convicted on his own plea of driving a motor vehicle on a public road without third party insurance c/s 4(1) and (2), Motor Vehicle Insurance Ordinance. He was fined and disqualified from holding or obtaining a driving licence for 12 months. He has appealed against the order of disqualification on the ground that the statement in his plea in mitigation of sentence amounted to special reasons. His statement was that he was the owner of a motor vehicle for three years. From April 1968 to December 1968 the vehicle was out of order and he could not get parts to repair it. In December 1968 he secured parts and repaired it himself. He was testing it on the road when he was stopped by the police and the vehicle carried a sign ‘On Test’. The insurance had expired in June 1968.

Held: (1) “The relevant law in England previous to 1960 was the same as it is in Tanzania and the English decisions while not binding are persuasive. On the question of the procedure to establish “special reasons” it was held in Jones v. English [1951] 2 All E.R. 855 as follows: “Where …… a defendant has been convicted of an offence for which the penalty of disqualification is laid down …. And he seeks to rely on special reasons for the non-imposition of disqualification, he ought to give evidence and the justices ought to hear evidence on the point and not merely accept statements.” It was, however, held In Brown v. Dyerson [1968] 3 W.L.R. that “although evidence should be called to substantiate facts relied upon as constituting special reasons, failure would not invalidate the justices decision if there was material capable of sustaining a finding of special reasons.” As a matter of practice, I am of the view, that special reasons should be supported by evidence rather than statements when the courts will better be able to find certain facts and determine whether or not they constitute special reasons …… The learned magistrate, however, would appear to have considered the facts as stated by the appellant and since there is no record that the prosecution did not disagree I will consider them as facts found.” (2) “The point in issue is whether, testing a vehicle after repairs, is a special reason to exempt the appellant from disqualification. I can do not better than refer to an English case Gardner v. James [1948] 2 All E. R. 1069 in which he had just bought and assembled himself. It had no insurance and the defendant pleaded guilty to a charge

(1969) H.C.D.

- 159 –

of using a motor vehicle without third party insurance. On appeal it was held that testing a vehicle in these circumstances did not constitute ‘special reasons’ entitling the justices to refuse to suspend the licence. In this case the offence was a serious one exposing users of the road to great risks in that if they were injured they would get no compensation. The appellant was fully aware of the risk and the danger possibly was greater with a vehicle under repair and I cannot see how the fact that the vehicle was on test could be mitigating factor to support the non-suspension of a driving permit. The appeal is, therefore, dismissed.”

180. R. v. E.D.U. Sawe, Crim. App. 838-M-68 26/3/69, Mustaa J.

This is an appeal by way of case stated from the acquittal of the respondent by the learned resident magistrate. The respondent was charged with causing the death of another by dangerous driving contrary to section 44A (1) (a) of the Traffic Ordinance, Cap. 168, as amended by the Traffic Ordinance (Amendment) Act No. 41 of 1964. The following facts were found. While the respondent was driving along School Street his motor vehicle knocked down three pedestrians, including one Safi d/o Mgawe who later died as a result of the injuries sustained. The said Safi d/o Mgawe and the other pedestrians were walking on the correct left side of School Street at the time of the accident, and the motor vehicle went off the road after it had collided with the pedestrians. The Street is overgrown with huge mango trees which make it difficult for a driver to see pedestrians walking on it. The trial magistrate found that there were three ways in which the accident could have happened. First that the respondent deliberately ran Safi d/o Mgawe down. This was rejected outright. Secondly, the respondent might have seen the pedestrians in good time but believing that they were aware of his approach hoped that they would give way for him to pass. They did not and the accident took place. Thirdly, the respondent, because for the obstruction due to the huge mango trees, might not have seen the pedestrians until it was too late for him to do anything to avoid the accident. The trial magistrate found that: “The evidence before us does not show that things could not have happened in accordance with the third theory. There is thus a doubt about the guilt of the accused for the offence charged.” He also says: “If what happened is sin accordance with the third theory, the blame for this accident would lie on the Township Authorities for keeping a road in town closely overgrown with these huge mango trees which make it difficulty for a driver to know whether there are pedestrians walking along the street.” He therefore acquitted the respondent.

Held: “I will of course accept that the accident occurred in terms of theory No. 3 as propounded by the learned trial magistrate ….. In my view, accepting all the facts as found by the trial magistrate, it is clear the respondent was guilty of the offence as charged. In the circumstances described respondent obviously caused the death of deceased by driving in a dangerous manner. In considering the “circumstances” in a charge of causing death by dangerous driving the test to be applied is purely an objective one. If the driving was in fact dangerous in all the circumstances the driver is liable…… [Citing; Graham Lesile John Ball and John James Loughlin [1966]50 Cr. App. Reports 266 at 270].

(1969) H.C.D.

- 160 –

Here it is quite clear that the respondent was driving along a road where there were big overhanging trees which make it difficult for a driver to see properly. In the circumstances, it was obviously his duty to drive in such a manner so as not to knock down or run over anybody walking on the correct side of the road. By applying such an objective test it is clear the respondent was driving in a dangerous manner, when he knocked down deceased causing her death. I also refer to Hassan Mohamed Omari v. R. 1959 E. A. (C.A. ) 939 at page 945 …….. In that case, the Court of Appeal would also appear to hold that the test to be applied is an objective one. In my view, therefore, on the facts as found by the trial magistrate he should have convicted the respondent. I, therefore, allow the appeal and send it back to the trial court with a direction to convict.”

181. H. C. Puri and Co. v. R. Crim. App. 33-M-69, 17/3/69, Bramble J.

An information was laid against H. C. Puri & Co. for failing to pay contribution to the Fund within the prescribed period contrary to section 38 (1) (d) of the National Provident Fund Act. A conviction was recorded and a fine of Shs. 200/- or two months’ imprisonment imposed. This is an appeal against conviction and sentence.

Held: “The point which immediately arises is the question of charging an unincorporated body with a criminal offence. The question was considered at length in a Kenya case, NTEREKEIYA BUS SERVICE vs. REPUBLIC [1966] E.A.L.R. page 333. In that case the appellant was charged with permitting a person to use a motor vehicle in and un roadworthy condition. Someone appeared, a conviction was recorded and the fine was paid. The question was whether on the facts a conviction of something called The Nterekeiya Bus Service could stand. It was held that (1) it was perfectly plain that a firm or body incorporate could not be charged, convicted and punished solely in the name adopted by the firm or society; (ii) the conviction was a nullity. While a corporate body and a firm or body un-incorporate are basically associations of persons to carry out a particular purpose incorporation gives the former an individuality in law and its members do not have any personal responsibility for the acts of a company. In the case of a firm or body incorporate from the point of view of the criminal law, the principle of common intent will apply and each member will be responsible for the acts of the others done in furtherance of the common purpose as though they were his own acts. The firm does not possess an individuality of its own recognised by the criminal law and its members may all be charged in their own names. The law in this country as to persons chargeable in the criminal courts is the same as in Kenya and following the decision quoted above; I hold that the proceedings in this case were a nullity.” Appeal allowed.

182. R. v. Amos John, Crim. Rev. 12-A-69, 3/3/69, Platt J.

The accused pleaded guilty to the charge of failing to comply with his time-table contrary to sections 23(3) and 26(1) of the Penal Code. In a reasoned argument before accepting the plea, the learned Magistrate set out his view why he thought the accused was guilty. He then fined the accused Shs. 50/- or seven days’ imprisonment in default of payment of the fine. The facts were that the

(1969) H.C.D

- 161 –

accused, being the driver and person in charge of a public service vehicle, drove his bus away from Mashati at 11.15 a.m. on the 20^th July, 1968, instead of 12.00 noon as stipulated in his time-table. He was stopped and later charged. It appears from the accused’s admission that he had no passengers in the bus, since he was going to the hospital for treatment.

Held: “It was conceded by the learned Magistrate that the accused was not the holder of the licence of the bus; but he argued that he was also guilty by virtue of section 22(a) of the Penal Code. That section provides as follows: “Where an offence is committed, each of the following person is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say (a) every person who actually does the act or makes an omission which constitutes the offence.” I need not, I think, consider in detail the various steps in the learned Magistrate’s argument employing this section, but perhaps I should observe, that the customs’ case to which h referred, raises a type of joint responsibility which was not involved in the problem in the instant case. Suffice it to say that the section seems to me to rule out the liability of the driver in this case, since the act or omission which constitutes the offence is only that of the licence holder. It has been laid down on several occasions that section 26(1) of Cap. 373 provides that only the licence holder can be proceeded against and not the driver nor the conductor of the vehicle. (See Hamed Abdallah v. R. (1964) E. A. pp. 270 and 272, and J.W. Nyamahande v. R. Cr. App. No. 550/68). With respect, I am unable to see any reason for construing section 26(1) of Cap. 373 in any other way. It follows therefore that the bus driver in this case should not have been charged and his plea not accepted. I cannot forbear to point out however, that it seems unnecessary for this argument to have arisen, for it was held in Hamed Abdallah that the licence holder was under an absolute liability to see that the special conditions of his licence, such as the conditions imposed in the time-table, were complied with. Thus whether he knew of the breach or not, he was liable. In the instance case, all that the prosecution had to do was to charge the licence holder on account of the driver’s breach of the conditions.” Appeal allowed.

183. R. v. A. J. Klosser, Crim. Rev. 17 “B” – D – 68, 11/4/69, Hamlyn J.

This was an application on revision of a conviction of the applicant by the Resident Magistrate Court on a charge of failing to comply as a prohibited immigrant with the lawful requirement of the Principal Immigration Officer to leave Tanganyika, c/s 23(1) (j) of the Immigration Act, Cap. 534. No punishment was imposed. The applicant was born a British subject of British parents in Karachi (British India) in 1918. He then moved with his parents to Zanzibar and later, in 1929, the family moved to Dar es Salaam where he schooled for sometime and then left for England for further studies. At the outbreak of World War 11, he was conscripted into the British Army and at the end of hostilities he lived in Greece for some time before returning to Zanzibar. In 1953, the applicant registered himself in Zanzibar as a citizen of the

(1969) H.C.D.

- 162 –

U.K. and colonies and lived there till after April 6, 1964, when he left on being declared a prohibited immigrant in Zanzibar. He entered Tanganyika under a visitor’s licence and has remained here till when he was served with the notice to leave by the Principal Immigration Officer on November 25, 1967. It is failure to comply with this notice that led to the current proceedings.

Held: (1) “The first [question] arises from the evidence of the Principal Immigration Officer of Tanzania who informed the court that the accused, according to his records, is a British subject. This opinion, which the Principal Immigration Officer states he held, was based on the accused’s own declarations. Nationality and citizenship are of course matters of fact and neither the opinion of the Immigration authorities nor the claim of the accused himself can have any bearing on these questions and it is for this court to determine from the evidence on the record, the true status of the applicant. (2) “The second question which arises is one of an indirect nature and is set out in the applicant’s petition. That petition complains that the finding of the learned Resident Magistrate was wrong and that the trial court should have found the applicant to be a person who had lost his citizenship of the United Kingdom and Colonies and was consequently stateless. If such is the finding of this court, then the Notice of the Principal Immigration Officer (so the argument goes) should never have been issued and the “lawful requirement” issued by him was no lawful requirement at all. The Notice was invalid and the applicant therefore claims that no offence was committed by him, despite the issue of the Notice. The 1948 Act provides for certain transitional measures for which the most relevant is section 13. That section (and I omit parts of it which have no reference to the instant case) reads: (1) “A person who was a British subject immediately before the date of the commencement of this Act, and is at that date potentially a citizen of any country mentioned in subsection (3) of section I of this Act, but is not t that date a citizen of the United Kingdom and Colonies or of any country mentioned in that subsection ……. Shall as from that date remain a British subject without citizenship until he becomes a citizen of the United Kingdom and Colonies or of any country mentioned in Section 1 (1) of the British Nationality Act, 1948.” The latter section reads as follow: “I (1) Every person who under this Act is a citizen of the United Kingdom and Colonies or who under any enactment for the time being in force in any country mentioned in sub-section (3) of this section is a citizen of that country shall by virtue of that citizenship have the status of a British subject.” Sub-section 3 of section I sets out a list of countries, among which are India and Pakistan. Prior to this legislation the applicant would appear to have been a natural born British subject under the British Nationality and Status of Aliens Act, 1914 and the succeeding Acts of like title in 1918, 1922, 1933 and 1943. Sub-section (3) of section 1 of this Act, and the provisions of the Third Schedule to this Act, shall have effect in relation to a person who remains a British Subject without citizenship by virtue of this section. (2) “A person remaining a British subject without citizenship as aforesaid shall become a citizen of the United Kingdom and Colonies on the day on which a citizenship law has taken effect in each of the countries mentioned in sub-section (3) of Section I of this Act of which he is potentially a citizen unless he

(1969) H.C.D.

- 163 –

then becomes or has previously become a citizen of any country mentioned in subsection (3) of section 1 of this Act or has previously become a citizen of the United Kingdom and Colonies …….” Section 32 (7) of the Act deals with “potential citizenship” and is also relevant to the present investigation. It is common ground that the applicant registered in Zanzibar on 18^th August, 1953. What then was the effect of such registration?....... under the 1948 English Act the applicant had automatically been vested with citizenship of the United Kingdom and colonies upon registration and under section 9 of the Zanzibar Constitution he became a Zanzibar subject. Section 9 of the Constitution of the State of Zanzibar reads thus: “Any person who on 10^th December, 1963, is a citizen of the United Kingdom and Colonies, having become such a citizen by virtue of his having been naturalized or registered in Zanzibar under the British Nationality Act, 1948, shall, by virtue of that status, have the status of a Zanzibar subject.” By reason of acquiring this latter status he ceased to be a citizen of the United Kingdom and colonies. It seems clear then that at this stage the applicant had lost his original status and was then a Zanzibar subject. On 6^th April 1964 – the date is highly relevant to the whole question under examination – the applicant was deported from Zanzibar. That date was some three weeks before Union Day and, while the fourth Schedule to the Extension of Law (No. 5) Decree provides (Section 2(1) (a)) that every Zanzibar subject who held the status of Zanzibar subject on 11^th January, 1964, should be deemed to have become a citizen of the United Republic on Union Day, a provision is made that this shall not apply to any person deported from Zanzibar. It seems patent therefore that the applicant because of this restriction, did not become a citizen of the United Republic on Union day. As the learned Resident Magistrate correctly remarks, “He was in effect one of a class of Zanzibar subjects on which citizenship of the United Republic was no conferred.” I further agree that by virtue of the deportation he had then also lost his status as a Zanzibar subject.” (3) “The trial court at this point considered the question of the applicant’s status as a British subject. It reviewed the life history of the accused and concluded that he had acquired “the additional status” of citizenship of the United Kingdom and colonies in 1953. The learned magistrate considered that there was some kind of status of British Subject which still remained and lingered on unaffected by what had taken place. With respect I cannot agree with this theory of “residual nationality”, nor can I accept the contention of learned counsel for the Republic that any dual nationality existed in this case. The effect of the 1948 Act, coupled with the fact of the applicant’s registration in Zanzibar, had a decisive effect upon his status. The old status vanished completely and gave place to the new and no vestige of his former “national self” remained. Nor do I think that the provisions of the Third Schedule to the British Nationality Cat, 1948 assist in this respect. That refers to persons who remain British subjects without citizenship. The applicant (prior to his deportation) had citizenship but it was citizenship of Zanzibar, and this he subsequently lost. He had already lost the status of citizenship of the United Kingdom and Colonies by virtue of his having acquired citizenship of Zanzibar in terms of section 9 of the Zanzibar Constitution section 2(2) Acts 1963. He was excluded from obtaining Tanzanian citizenship as already

(1969) H.C.D.

- 164 –

noted above, and it seems clear he thus became stateless.” (4) “The learned Resident Magistrate, in the course of his judgment, has quoted from Article 15 of the Universal Declaration of Human Rights. I do not think that the Declaration has any bearing upon the question of the statelessness or otherwise of the applicant; the maxim that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his naturality nor denied the right to change his nationality”, cannot affect the matter as the learned trial magistrate envisaged. The applicant has, by virtue of his own deed, involved himself in a number of legislative enactments which together have resulted in a consequence which he neither envisaged nor sought.” (5) “In seeking to reach a decision on this application, it is necessary I think to distinguish between the right of residence and the question of nationality. While loss of nationality has a purely circumscribed and personal effect only, the right of residence has greater consequences. The loss of this latter right may involve expulsion from the country of residence (as indeed took place in this case) and a resultant infringement of the right of other states. As has been said: “There are no desert islands to which refugees may go,” and it is this aspect of the matter which may have repercussions upon other stated which the deported person may seek to enter. The applicant was charged with an offence under section 23(J) of the Immigration Act, 1963 – That is, failing to comply with a lawful order, and it is his contention that the Order made by the Principal Immigration Officer was unlawful and invalid, he being a stateless person. Learned counsel for the applicant argued that his client, being stateless, could not properly be said to have “failed to comply,” for there is an obligation by international law on the country of his residence to retain him. In this, I consider that learned counsel overemphasized this “obligation.” There is certainly a right residing in every state to deprive of nationality, nor do I think that the applicant sought to raise an issue on this matter. But I have been unable to find the existence of a rule of international law prohibiting expulsion. There are ma dicta that loss of nationality by denationalization should not, by itself, entail the loss of the right of sojourn; but these dicta are not as yet considered as having crystallized into a rule of existing international law. It is however generally held that the duty to permit continued residence persist, though there seems to be no specific rule to such effect. And it is equally regrettable that the doctrine that it is the duty o f a state of former nationality to admit a denationalized person to its territory still remains to be adopted by the comity of nations. In the result therefore, it is impossible to find that the act of the Principal Immigration Officer was anything but lawful in issuing the Notice to the applicant. There was consequently an obligation upon him to comply with the terms of it. I am fully aware that this ruling will leave the applicant with no real remedy at all and that he will thus become a person with no abode. These implications however may be for consideration elsewhere.” (6) Application dismissed.

(1969) H.C.D.

- 165 –

184. Sebastian Lothi and others v. R., Crim. App. 200-D-68, 18-D-69, 19-D-69, 20-D-69, 23-D-69, 21/3/69, Platt J.

The five appellants appeal against their convictions of contempt of Court and fines of Shs. 400/-, imposed by the District Court of Kilimanjaro, at Moshi. In Criminal Appeal No. 200 or 1968, the appellant, Sebastian Lothi, was fined Shs. 400/- for belching and yawning and making a lot of noise. In Criminal Appeal No. 23 of 1969, the appellant, Zakaria Ndemfoo, was fined Shs. 400/- for having laughed and talked in Court while proceeding were in progress. In Criminal Appeal Nos. 18, to 20 of 1968, inclusive the three appellants were jointly fined Shs. 400/-, having been convicted of making noises in the precincts of the Court building. In each of these cases, the leaned Magistrate took cognizance of the offence and punished the offender brevi manu. The procedure adopted was as follows. In the case of the three appellants in appeal Nos. 18, 19 and 20 of 1969, the charge is simply stated as contempt of Court c/s 114 (1) (a) of the Penal Code. The court then set out its observations of the offence and fined the offenders. In criminal appeal No. 23 of 1969m Zakaria Ndemfoo is alleged to have said that he understood and admitted that he was laughing; the charge of contempt of court was then noted; the court added its observations and thereafter the offender was fined. In Criminal Appeal 200 of 1968, the record reveals that the accused said “It is true”. That was entered as a plea of guilty. No charge was noted but the court set out its observations upon which the appellant was found guilty. No charge was noted but the court set out its observations upon which the appellant was found guilty of contempt of Court and punished. These appeals were argued on the question of what procedure should properly be followed in the case of contempt of Court ex facie the court.

Held: “It seems that on must return to ODHENGO v. R. (1954) 21 E.A.C.A. 302 ……. The Court of Appeal expressed the view ……. That where a court ‘takes cognizance’ of an offence, it is in effect assuming an exercising a jurisdiction to deal summarily with the offence and that in every such case, it is essential that the court should confirm and record the substance of the charge, call upon the person accused to show cause why he should not be convicted on that charge and give him a fair opportunity to reply. It further observed that it was desirable that the record should show that this procedure has been in fact followed and should contain an adequate note of the accused person’s reply if any, as well as the court’s decision. It was pointed out that if these particulars did not appear on the record, the appellate court would he hampered. If that decision is to be followed then it would seem that in none of these cases did the court first frame and record the substance of the charge before calling upon the accused person to show cause why he should not be convicted. Nor is it clear that the offenders were given a fair opportunity to reply to the observations of the court upon which it was said that the offenders were guilty. I cannot say that I think, that the record merely did not reveal what has taken place and

(1969) H.C.D.

- 166 –

therefore I fear that the proceedings in each case must be considered null. Certainly the appellants have not put forward explanations in their petitions. But Odhengo’s case was considered with some care by Simmons, J. in HAMISI s/o MURUIRO v. R. Cr. App. No. 141 of 1968. The result of that appeal was that the observation of the Court of Appeal in Odheng’s case was considered obiter and therefore not binding, while it was said that the actual contempt might allow for a different procedure. So for instance, the contempt in Odheng’s case was refusing without lawful excuse to answer a question. Simmons, J. was prepared to concede that in the case of that kind of contempt it might well be contrary to naturally justice not to give the contemnor an opportunity of advancing a lawful excuse if he had one. But in Hamisi’s case, the contempt consisted of insults heard by the Court, who demanded no proof and admitted of no explanation; in that event the Court was entitled to punish brevi manu. On the strength o this decision it is clear that in all of these cases, the offenders had excuses to put before the court. They were not acts which admitted of no explanation and therefore, even on the analysis of Simmons, J., I am thrown back on the general though obiter pronouncement of the Court of Appeal in Odhengo’s case. The matter was also referred to in Criminal Appeal No. 424 of 1960 by Sir Ralph Windham, C.J. but he left the matter open for further consideration. With respect, I think that the view of Simmons J., though no doubt useful on occasion, must necessarily have such little practical advantage that the procedure laid down by the Court of Appeal should generally obtain. But as I have explained, all thee appellants fell to be dealt with under the procedure laid down in Odhengo’s case in any event. I agree with the Republic that the convictions cannot e allowed to stand; they are quashed and the sentences imposed on them are set aside.” Appeal allowed.

(1969) H.C.D.

- 167 –

185. Simlongole v. Kitinyi, (PC) Civ. App. 73-D-1968, -/5/69, Saidi J.

The appellant married the mother of a girl called Maria in 1946. Maria was born in 1950 and was brought up in the appellant’s house until she was 16 years old. Her mother was divorced by the appellant in or about 1954 and was married to the respondent in the same year. When she was about 17 years old, Maria purported to renounce the paternity of the appellant and claimed to be a daughter of the respondent as a result of which the appellant commenced these proceedings to recover Shs. 3,000/- the expenses incurred on Maria’s maintenance and education.

Held: (1) “I will first of all say that there is no cause of action against the respondent as he did not claim custody of Maria and had not been sued for damages for adultery with Maria’s mother from the beginning, although he corroborated the evidence of Maria’s mother, who is now his legal wife, that he had committed adultery with her.” (2) “The next and most important issue to be decided is whether or not a child is at law entitled to renounce paternity of one man and adopt that of another. I firmly feel that no child should be allowed to choose its paternity or else there is going to be endless trouble in society. Legitimatization of illegitimate children is dealt with in clause 181 and 182 of the Customary Law Declaration which provide: “181 (A) A father has the right to legitimate his illegitimate children at any time by marrying their mother. (B) If a man wishes to legitimate his child without marrying its mother he can do so before the child is weaned by paying Shs. 100/-to the girl’s father. (C) The place where the child is brought up shall be agreed by its father and mother, or if they cannot agree it will be fixed by order of the court. In any case, the father shall be responsible for the maintenance of the child.” “182. Only the man who has been named as father by the mother at the time of the child’s birth has the right to legitimate it.” It seems to me that a child born in wedlock could not be made a subject of legitimatization even if it had been fathered by a man other than husband of the mother as a result of adulterous association with the child’s mother unless the husband himself disputes paternity and charges his wife and the other man with adultery. This is clearly the position law and it is so stated in clause 175 of the Customary Law Declaration which provides that - “Children born n wedlock belong to the father.” Reading clauses 175, 181 and 182 of the Customary Law declaration as they are I feel that only illegitimate children of single women can be legitimatized but not those born in wedlock unless the husband of their mother repudiates paternity on grounds of adultery. It is also my view that legitimatization is largely a matter within the exclusive exercise of the fathers and the children concerned have practically no right in it. To this extent a child could not therefore elect as to its paternity. The only exception where a child would normally be entitled to seek a court’s declaration as to paternity would arise when its legitimacy is contested by strangers in a bid to exclude it from, say, the right of inheritance, maintenance, protection, and education or the right of bearing its alleged father’s clan or surname, kinship, and family ties. This of course would not involve repudiation of one paternity and adoption of another paternity as it is the case in these proceedings. It would only mean defending the paternity already possessed from attack by outsiders. In the result I must declare Maria the lawful daughter of the appellant who will have the right of

(1969) H.C.D.

- 168 –

arranging for her marriage and take the bride-price. Maria now a grown-up and will be allowed to choose where to live whether with her father or mother as I do not feel it is advisable to make any order as to custody which in fact was not a subject of these proceedings.”

186. Isidori Ndethnga v. Eugen Mangalili, (PC) Civ App. 22-A-1967, 14/12/1968, Platt J.

The respondent and the appellant share a common boundary along which respondent (Eugen) had plated trees. The appellant alleging that these trees, or their branches on being blown by the wind had falled on his land and had damaged his coffee and banana trees, sued Eugen for compensation for the damage caused. On appeal, his claim was rejected by the District Court of Kilimanjaro at Moshi.

Held: …….. The real question seems to me to be whether at customary law a person who plants a boundary tree is liable if the tree itself or any part of it falls on his neighbour’s land causing damage therein. The argument seems to fall under two headings: (a) whether a boundary tree which causes damage, is damage for which compensation can be claimed; (b) whether damage caused by a wind –blown tree, is damage for which compensation can be claimed. These questions arise out of the arguments which were first raised in the District Court. Therefore, as the court was without the advantage of the opinion of the assessors at first instance, two Generally speaking boundary trees are common property and if a tree itself or a branch falls on to the land of the party who has not planted it, that person may use it as timber. He has no right to compensation if the tree is diseased and falls by itself or if it is blown down by abnormal wind. Should the person who planted the tree remove the fallen tree or branch from his neighbour’s land that would be an interference for which compensation could be claimed. It was, consequently, said that Isidori could claim for the value of the timber if he was deprived of it, but he could not claim for he loss of his coffee or banana trees. As this opinion was shared equally firmly by both assessors, I accept their opinion. It follows that regarding boundary trees there is no notion amongst the people of this area, following what in the general law would be called negligence or strict liability for harbouring dangerous objects which have escaped on a neighbour’s land. That is probably due to the idea of the joint ownership of the trees. Accepting the customary law as explained by the assessors I hold that the District Court came to the right conclusion in dismissing Isidori’s claim.” Appeal dismissed.

187. Khushalbhai R. Patel (t/a Patel Flour Mills) v. Laloobhai A. Patel and others (as partners in Bombay flour Mill), Civ. Sass. 23-D-1960, 9/4/69 Hamlyn J.

This was an application by a decree-holder for execution of the decree against a person whose name did not appear upon the pleadings or in the decree itself and it arose in this way. The plaintiff was an individual and filed his plaint in his own name with the addition of the words “trading as Patel Flour Mills”. The defendants were three named individuals who were sued in their individual names” as partners in the firm of Bombay Flour Mill.”

(1969) H.C.D.

- 169 –

The plaint was filed and all three partners were served individually with a summons for settlement of issue. The matter went to arbitration and an award was made. Eventually a decree was issued and attachment of property was applied for. The advocates for the decree-holder then made application to the High Court after 8 years from the date of the original plaint by way of Chamber Summons supported by affidavits for leave to be granted to execute the decree against a person who had never appeared as a party the rein, one Bhikhabhai Govindbhai Patel, and paragraph 5 of the supporting affidavit was set out in the following manner: - “5. I was not aware that the said Bhikhabhai Govindhbhai was a partner in the partnership firm of Bombay Flour Mills until this information was given to me approximately three months ago by Durlabhbhai Jagabhai Patel, one of the judgment-debtors and I now verily believe that said Bhikhabhai Govindbhai was a partner in the defendant partnership firm during which the plaintiff’s claim arose.”

Held: “It appears that Bhikhabhai Govindhai (to whom I will refer hereafter as “B.G.”) is a man of some substance, while the partners named from the beginning of the action are all persons of little financial worth it would seem that the decree-holder, finding his judgment to be of nominal value only, now seeks to give it financial worth by filing this somewhat unusual application …… the application was argued before me only upon the basis that the decree-holder, having adopted his mode of filing his case in Court, cannot now seek to bring B.G.” into any execution proceedings at this stage. The allegation of the fact of partnership of B.GH. in Bombay Flour Mills has not so far been argued. Now it seems clear from the Civil Procedure Code that an intending litigant, who desires to sue persons operating as partners, can adopt one of two options. He may jointly sue all partners by name and usually in such case he adds a subscription to show that he sues them as partners of a firm. That subscription may be, “Trading in the name and style of –“, or “partners in the firm of –“, I would add that no particular magic attaches to this subscription, which merely shows that the defendants are sued in their capacity as partners, and its is of course advantageous where any question of agency arises inter se. The other form which a prospective litigant may adopt in draw in his plaint is to sue the firm in the firm name. This is of course provided for by Order 29 of the Local civil Procedure code. In such case there is no need to specify the names of the individuals who constitute the firm; they are the agents for it and are therefore liable for acts done within the terms of that agency. The applicant in the instant case saw fit to adopt the former of these modes of filing. He selected three persons who (and I think this is not in issue) were partners in the firm of Bombay Flour Mills……. No assuming that B. G. was in fact at all material times a partner in this firm, what consequences arise therefrom? The plaintiff has failed throughout to include his name as a person against whom he is proceeding. Can he at this late stage claim that he is a party against whom he is executing his decree? I think that the answer to this question must be found in the form in which the plaintiff originally sued. If he filed his action against the firm as such, omitting all mention of the names of the partners, then he can execute his decree against every partner jointly and severally. It matters not that there may be several partners of whom he was unaware at the time that he opened his proceedings. If they were partners at the time that the cause of action arose, they will be liable in execution, even though their identity was discovered at a late stage. I think that this reading of the matter arises from the provisions of Order 29 Rule 3, where the Code provides for service of the summons, “where persons are sued as partners in the name of the

(1969) H.C.D.

- 170 –

firm”, upon one or more of the partners, or at the place of partnership business. There is clearly no need for service in such case upon each of the several partners. Some may even be unaware that an action has been filed against the firm, but all are nevertheless liable under the decree. But I think that the position is rather different in the present case. The plaintiff has sued three persons “as partners in the firm of Bombay Flour Mills”. He has selected three persons as the objects of his action and has (either by design or otherwise) omitted one person whom he now alleges is a partner. He has, in other words adopted a form of election, choosing some and rejecting (even though involuntarily) others. It is of course true that such election might not of itself preclude him from further proceedings against the remaining partners, if limitation does not forbid this; but that is not a matter which is now before me. Having made this election and acted upon it, it seems clear to me that he cannot be heard in these proceedings vary it; nor will the court allow him to retract his earlier decision. Nor can he pray in aid his subscription that he sues these existing defendants “as partners”. [Cases referred to: (1) Karimbhai v. The Conservator of Forests N. D. (1879)4. I.L.R. Bombay 22; (2) Gulam Mustapha Malik v. Madanlal (1930) 58 I. L. R. Calcutta 624] Application dismissed.

188. Juma Kisuda v. Hema Mjie (PC) Civ. App. 85-D-1967 25/6/69 Saidi J.

The proceedings concern a claim for custody of 5 children. The mother of the children, Mariam, was originally married by a member of Hema’s clan a long time age. Her husband died and she was inherited by her brother-in-law who again died. As a result she left clan and went to live with her mother for several years. She then was married to Juma, the appellant, with whom she had the 5 children in question. Hema then sued for custody of the children, and an earlier order of the High Court confirmed his right to them on the grounds that under Nyaturu custom the marriage to Jumawas void as the earlier marriage had not been dissolved and the bride-price refunded. It was also held that Juma was entitled to be reimbursed for the expenses incurred on these 5 children since their birth. The sole question remaining concerned the amount of these expenses.

(1969) H.C.D.

- 171 –

Held: (1) “The evidence taken by the district court on the average cost of maintaining a child at the village of the parties is not helpful ….. Apart from Juma who spoke in money terms as he has personally incurred expenses on the maintenance and education of the children, both Hema and the assessors could hardly be diverted from their deep rooted belief and argument on “mtonga”, i.e., one cow, the traditional reward for rearing the child of another. It is obvious that one single cow could not cover even an insignificant fraction of the cost of bringing up a child and sending it to school for several years. The argument on “mtonga” arose also in Abdallah Salimu v. Ramadhan Shemdos (P.C.) Civil Appeal No. 55 of 1967) and this court had to assess a reasonable figure as the average cost for maintaining a child for a year in Lushoto and Singida would be almost the same and I would accordingly assess the maintenance at Shs. 100/- a year per child. Worked out on the ages of the children it would come to Shs. 6,400/-. The expenses on the education of the 3 elder children total Shs. 333/-. (2) “It is in the evidence that 2 of the elder daughters have been married and the bride-price was taken by Hema. Under Nyaturu customary law Hema is the legal father of the children as this law envisages that the children were born in a technical wedlock. Hema will have the right to arrange for the marriage of all the daughters and receive the bride-price but he must bear the expenses incurred in their maintenance and education totaling Shs. 6,733/-. This is the sum already spent on the children by Juma. Hema will be allowed to arrange for the marriages of the daughters and take the bride-price if he pays this sum to Juma otherwise Juma will have to realise it from the bride – price.” (3) “The custody of the 2 daughters already married is no longer an issue of importance as they are now living with their husbands. The custody of the remaining children will remain with their mother, Mariam, since their welfare and psychological growth would be affected if they were to be removed from their mother and be placed in a different house with persons they had not met before.”

189. Ulijah Lufiroo v. Mwakinomo Mwakaje (PC) Civ. App. 213-D-1968, -/6/69, Saidi J.

The appellant bought a cow from the respondent with a guarantee that in the event of the cow dying within 6 months, the respondent would take back the carcass and refund the appellant the sale price in full. The cow died within 2 months and on respondent declining to meet the guarantee these proceedings were commenced in Rungwe District.

Held: (1) “Leaving aside considerations of the validity of the condition imposed by the buyer on the seller at the time of bargain over the cow the court should attend to what exactly the parties meant with the words “in the event the cow died within 6 months”. To me it seems that these words express a demand by the buyer of a guarantee that the cow in question was of a good quality and was free from any hidden defects or disease that would be difficult for him to find out by mere observation. This may appear strange but it is common amongst Africans in the villages to extract a form of guarantee from the seller of certain local articles or animals. The European doctrine of Caveat emptor (let the buyer beware) is not strictly applicable amongst Africans in the villages to extract a form of guarantee from the seller of certain local articles or animals. The European doctrine of caveat emptor (let the buyer beware) is not strictly applicable amongst the majority of Africans …….. The words “in the event the cow died within 6 months” must also be construed with caution. The condition did not apply to any type of death of the cow. It would not apply if the buyer

(1969) H.C.D.

- 172 –

slaughtered it or starved it to death within the period of 6 months. I think the condition applied to a very limited range covering death caused by a disease of any rype proved to have been in the cow at the time of sale. Certainly if cattle disease such as anthrax swept the locality and the cow then died from this the condition could not be involved. In the present case the cow was in fact killed by a hyena. I agree with the learned District Magistrate that this form of death was outside the condition imposed by the buyer. That being the position the respondent could not be held liable to the refund of the price as stipulated.” (2) “The appellant’s claim was more over time barred. The cow was bought by his father bout 10 years age.” (3) Appeal dismissed.

190. Sabo Bukenyera v. Mwizarubi Malayarubuzi, (PC) Civ. App. 78-M-69, 2/6/69, Seaton J.

The plaintiff /respondent brought proceedings in the Primary Court for Shs. 150/- as compensation for rice eaten up by the defendant/ appellant’s cattle. One of the assessors suggested that the compensation should be Shs. 60/-, and the other, Shs. 80/-. The magistrate awarded Shs. 120/-, and gave no reasons for differing with the assessors. On appeal, the District Court increased the compensation to Shs. 150/, apparently on the ground that the defendant/appellant was “very careless with his animals”. The defendant /appellant appealed to the High Court.

Held: “It would seem that the district magistrate increased the amount of compensation to a certain extent because he disapproved of Sabo’s attitude. While this may be a very relevant consideration in some Civil Cases, for example, libel or malicious prosecution in some Civil Cases, for example, libel or malicious prosecution, it should not influence the question of compensation for damage due to trespass. In my view, the assessors’ views were consistent with the evidence in the case. Shs. 80/- compensation appears to me to be quite adequate in this case.” Appeal partly allowed. Amount of compensation payable reduced to Shs. 80/-.

191. Abdallah Zarafi v. Mohamed Omari, (PC) Civ. App. 150-D-68, 16/4/69, Saidi J.

In a claim for a shamba, the primary court gave judgment in favour of the respondent. On appeal to the District Court, a date was set for the hearing; but as neither party appeared, the appeal was dismissed. Later, the District Magistrate re-admitted the appeal for hearing after the respondent had shown sufficient cause for non-appearance, namely an injured leg. This District Magistrate was subsequently transferred before the date of the hearing; and his successor in office referred the matter to the High Court contending that the District Magistrate was not entitled to set aside his own order dismissing the appeal of the appellant for non-appearance, and that the High Court alone was empowered to do so.

Held: (1) “There are occasions when a court is empowered by law to set aside its own orders. A trial court is empowered to set aside an exparte decree or an order dismissing a suit passed as a consequence of non-appearance so long as the person against whom the decree or order for dismissal of the suit is able to establish that he was prevented by sufficient cause from appearing in court on the material day. The same principle would apply to

(1969) H.C.D.

- 173 –

appeals dismissed in consequence of non-appearance by the appellant.” (2) “There could be numerous causes that would prevent parties from attending the court on the dates fixed for trials or hearings, such as illness, bad weather, civil disorders, death of family members and the like. All courts accept these and many other reasons as sufficient cause for non-appearance and normally set aside the orders against the parties affected so as to enable them to present their cases. Refusal to take this course would deny the unfortunate party the opportunity of proving or disproving the relevant case at hand when he could effectively do so an this would eventually amount to a denial of justice. In the present case the appellant had cut his left leg with a hoe while working this shamba 3 days before the hearing date and was then laid in bed on the material day. This was no doubt sufficient cause for non-appearance.” (3) “The relevant law in the present case is the Magistrates Courts” Act, Cap. 537 and the Rules made there under. Rule 17 of the Civil Procedure (Appeals in proceedings originally in Primary Courts) Rules, 1963, appearing in Government Notice No. 312 published on 29-5-64, is applicable to the appellant’s case. Rule 17 empowers the court to re-admit an appeal it had dismissed for default of appearance by the appellant on such terms as to costs or otherwise as it thinks fit. No particular formality is laid down to be followed by the court when acting under this rule. The learned District Magistrate suggested that his predecessor should have at 1^st made an order setting aside his earlier order dismissing the appeal before he re-admitted the appeal for hearing. The suggestion is not without substance but reading rule 17 as it is drawn I do not feel that tit was necessary for the court to set aside the 1^st order before re-admitting the appeal for hearing although he did not use exactly these words. In the circumstances I would return the record to the learned District Magistrate with direction that he should proceed to hear and determine the appeal on its merits. “

192. Eston Mwaipopo v. Simithy Manyafu, (PC) Civ. App. 200-D-68, 19/6/69, Duff J.

The appellant claimed damages of Shs. 400/-, alleging that the respondent had slandered him and injured his reputation. The evidence in this respect was that the respondent had questioned some witnesses about rumours he had heard concerning the appellant’s having seduced a woman, in consequence of which she had become pregnant. The plaintiff adduced no evidence to show what loss, if any, was sustained by him. The plaintiff’s claim was dismissed in both the Primary and the District Courts.

Held: “An aspersion on a person’s moral behaviour is one of the commonest forms of slander but it is not actionable per se unless the imputation it self is connected with the person’s occupation or enjoyment. To charge a person falsely with adultery or immorality is not actionable without proof of special damage or actual temporal loss. Mere injury to the feelings of the defamed person does not constitute special damage. The appellant upon hearing what had been said by the respondent claimed that he was upset as a result but this fact would not of itself constitute special damage …… in dismissing the claim the Primary Court Magistrate held inter alia that there had been no publication to the appellant and while it is not clear that he mean by this it must be accepted that an action for slander cannot be maintained unless there is publication to some person other than the person slandered. Aside from this it appears to me that the respondent was not defaming the appellant

(1969) H.C.D.

- 174 –

in any way and at the most he was merely enquiring as to the veracity or otherwise of the rumour involving the appellant which was circulating, the query being raised in the course of a general conversation which local topics were being discussed.”

193. Zuhura d/o Yusufu v. Juma Saidi, (PC) Civ. App. 185-D-68, 9/5/69, Hamlyn J.

In 1964, the appellant filed proceedings and obtained judgment against the respondent for 32 cows, said to be part of her deceased husband’s estate. In 1968, the appellant filed the present proceedings, claiming from the respondent a further 5 cows which she alleged had belonged to her husband. She obtained judgment in the Primary Court, but this holding was reversed by the District Court on appeal. Thereupon, she appealed to the High Court.

Held: A plaintiff cannot, in the ordinary course of things, be permitted to file a series of suits in respect of the same cause of action. Not only would this be an abuse of the process of the courts, but it might preclude a judgment –debtor from over freeing himself from his obligations. The rule, which is embodied in Order 2, Rule 2 of the Civil Procedure Code, and is a salutary one. It would not have been impossible for the appellant, when she was about to institute her proceedings in 1964 ……. To have made a fuller investigation as to her rights in the matter of her husband’s estate and to have filed her action for everything that was her due.” Appeal dismissed.

194. Hamisi Sinbato v. Gladness Haduri, (PC) Civ. App. 66-D-67, 14/9/69, Hamlyn J.

The respondent sued the appellant for Shs. 720/- in respect of a plot of land which the appellant purported to have sold to the respondent, but over which he had no title. The respondent paid Shs. 600/- to the appellant for the plot. She paid a further Shs. 120/- for the foundations of the house which she proposed to build on that plot. Both the courts below held for the respondent, on the grounds that it was directly due to the appellants wrongful undertaking that the respondent paid over the money to the appellant. On appeal to the High Court.

Held: “The appellant admits that he received Shs. 600/- from the woman, but inquiries with an air of innocence, how he cold be liable to hr for the additional Shs. 120/-. Where as a result of representations of a party, the other party to the contract is led to expend further sums, and where it turns out that such representations are false to the knowledge of the party making them, that party is liable for additional damages which were in contemplation of the two parties at the time of the making of the contract. It was clearly a matter directly arising from the wrongful statements of the appellant to the respondent not only that she paid the Shs. 600/- to the appellant, but also that she would proceed with laying out further monies in commencing the building on the plot; she had informed the appellant at the time of the payment that that was the object of the purchase by her.” Appeal dismissed.

195. Rosa d/o Wilbald v. Ebnezer s/o Yosia (PC) Civ. App. 4-A-68, 28/7/69, Platt j.

The appellant, Rosa, who was a married woman, was made pregnant by the respondent in October, 1966 and later gave birth to a

(1969) H.C.D.

- 175 –

child in July, 1967. Her husband had left for Mbeya in April, 1966 and returned in December, 1967. The Primary Court granted the appellant Shs. 300/- compensation, but the District Court refused to uphold this judgment, on the grounds that it was not the appellant but her husband who ought to bring the proceedings for compensation. On appeal to the High Court.

Held: “The Primary Court purported to act under section 182 to 184 of the Declaration of Customary Law, G.N. 279 of 1963, but those Rules do not apply to this case because Rosa was not an unmarried woman …… the proper rules to apply in this case are those concerned with adultery by a wife during her husband’s prolonged absence. Rule 125 provides that if a husband returns from a prolonged absence to find his wife pregnant or has given birth to a child which cannot be his because of the length of his absence, several course are open to him:- (a) he can claim compensation for adultery, refuse to accept the child as his, and forgive his wife; the child then belongs to its maternal family; (b) he can claim compensation for adultery, accept the child as his and forgive his wife; (c) he can claim compensation, divorce his wife and decline to accept the child. Then the illegitimate child belongs to its maternal family. Paragraph 126 provides that the husband should make his decision at once when he returns and if he takes no action and continues with his married life as usual, it is understood that he has forgiven his wife and accepted paternity. In the present case, I am told that the husband of Rose has not divorced her. Although he has continued with the marriage he has not accepted the child as his. It seems that it is his duty, if he wishes to bring his case for compensation for adultery. As far as I am aware, there are no rules in the Declaration which allow a wife who has given birth to a child as a result of adultery to bring her own case for compensation. That is a matter which resides in the husband because the marriage still exists.” Appeal dismissed with costs.

196. Matiko Chacha v. Mathias Mwita, (PC) Civ. App. 59-D-68, 19/8/69, Saidi J.

The appellant had married the respondent’s daughter and lived with her for 4 years, during which time she had given birth to twins. He then refused to cohabit with her due to a local belief over the matter of twins. Consequently, there was a divorce, and 15 cattle were refunded to the appellant out of 23, with a balance of cattle left over as consideration for the length of the marriage and the twins born. The woman subsequently remarried, and hr father, the respondent, received dowry from the new husband. The appellant now claims, apparently, the return of the remaining 8 cattle of his original dowry.

Held: The evidence shows that on the remarriage of the wife, her father recovered 15 head of cattle only from the second husband, to replace those he had given out to her earlier husband. Although the father of the earlier husband alleges that 38 cattle were paid over on the second marriage, he has produced no evidence to support this allegation. I will, therefore, take it as established that only 15 head of cattle were received on the second marriage. If that is so, there is o balance of the bride-price to be paid back to the first husband. In fact, the first husband is very lucky to have more than half of the bride-price paid back when the marriage had issue and as was responsible for the breakdown of the marriage itself. But …. The provisions of the Customary Law Declaration do not contain anything that covers a situation

(1969) H.C.D.

- 176 –

such as this. I do not think it will be proper to allow the father of any girl to continue to get bride-price from the girl’s subsequent marriages with other men without refunding proportionate parts of the earlier bride-price received in the provisions marriages, even in cases where previous marriages had lasted long and there was also issue of such marriage. This, as I have said, would encourage unscrupulous fathers to induce their daughters to break their marriages so that they could be married again and again, to make it possible for them to get more and more bride-price. In the present case, proportionate refund of the brideprice has been affected, and the complaints of the appellant are, therefore, unfounded.” Appeal dismissed with costs.

197. Abdallah Khamisi Telekelo v. Salima d/o Hokelai, (PC) Civ. App. 221-D-68, 14/8/69, Duff J.

The appellant and respondent were married under Muslim Law and cohabited for 14 months, the respondent then obtaining a divorce. Before the marriage, the respondent professed the Christian religion, but was converted to Islam upon her marriage. At the time of the divorce, a sheikh discussed the obligation of Eda with the respondent, she claiming that as she had been reconverted to Christianity, she was not bound by Muslim customs. Thereafter, she associated with a third party, and became pregnant within a month after the divorce. The appellant claimed paternity of the unborn child on the grounds that the respondent was bound to observe Eda. And that he was entitled to have the child which was conceived within the period specified. Both the courts below held for the respondent. On further appeal.

Held: (1) “When the divorce was granted, the respondent was medically examined and it was accepted that she was no then pregnant Assuming for the moment that the respondent was bond to observe Eda would it follow that the appellant was entitled to have the child which was conceived during the period specified? There is no suggestion that the parties had access to each other at any time when the child would have been begotten, and the facts which were established indicate clearly that the appellant could not e the father. If the child cannot be of the appellant, Eda or the non-observance of it does not entitle him to be declared the author of the pregnancy.” (2) Normally where a person is converted to Islam, the Muhammedan law applies immediately, and it would appear equitable that if a Muslim is converted to Christianity, the Muslim Law ceases to have any continuing obligatory force upon the convert.” (3) Appeal dismissed.

198. Wambura Kanga v. Khuria Nyakura, (PC) Civ. App. 227-D-67, 5/8/69, Biron J.

The plaintiff-appellant, after consulting the ten-house cell leader and the Village Development Committee, purchased a parcel of land from a third party. However at some stage, the Village Development Committee allocated part of this parcel of land to the respondent, who went into occupation thereof. In a suit in the Primary Court, the court found in the appellant’s favour, on the grounds that he had paid valuable consideration for the land, and that the respondent had some other land as well. On appeal by the respondent to the District Court, it was held that according to local custom, land could not just be disposed of by one occupant to another, but had to be allocated by the Village Development Committee, and that

(1969) H.C.D.

- 177 –

therefore the respondent was entitled to retain the portion allocated to him. The order of the Primary Court was accordingly reversed, and the decision of, and the allocation by, the Village Development Committee, restored. On appeal from this order.

Held: “In view of the fact that the Primary Court had taken into consideration that the land had been allocated between the contesting parties by the Village Development Committee, yet, apparently, did not feel itself bound by such allocation, I enquired from the District court Magistrate the authority for his statement that land in the area could not be transferred by individual to individual, but must be allocated by the Village Development Committee, and he has written to this Court categorically stating that it is the local custom in the area that land must be, and can only be, allocated by the Village Development Committee. I see no reason to doubt the district Court Magistrate’s statement of the law which he has confirmed, that land in the area cannot be alienated by, or transferred between, individuals, but must be allocated by the Village Development Committee, which I consider, from a reasonable and practical point of view to be a commendable and salutary one. In the circumstances, I see no reason for interfering with the District Court’s finding and order.” Appeal dismissed.

199. Masero Mwita v. Rioba Masero, (PC) Civ. App. 151-M-69, 15/7/69, Kimicha J.

The respondent, who was the appellant’s son, wished to get married, and asked his wealthy father for cattle for brideprice. The father refused, mainly because of an earlier dispute between them which resulted in the father serving a prison term. The son then requested the clan elders to persuade his father to give him the brideprice, but they failed. The son brought an action in the primary court to obtain the brideprice from his father, and succeeded. The district court upheld the son’s claim. Upon further appeal.

Held: This dispute involves a very difficult decision. And that is, how much of the recognised Customary Law should be enforced by the courts? It is undisputed that according to Kuria Customary Law the respondent has the right to claim brideprice from his wealthy father and in the remote past a reluctant father could have his cattle seized by clan elders and used for the son’s brideprice. Or if the son decided not to use this semi-violent method and four the brideprice from other sources then the members of the clan would punish the father by austrocising him and exclude him from all social functions and treat him with contempt. Very few fathers were prepared to undergo this public punishment. But I am of the view that, this obligation though very strongly felt by Kuria tribesmen, cannot be enforced by the courts. To do so would be dangerously encroaching on the individual rights of property. I have in mind that a parent has both moral and legal obligations for the moral and physical maintenance of his infant child. If he does not fulfill these obligations the courts have inherent jurisdiction to force him to fulfill them. But once the child reaches maturity and is physically fit the moral obligation remains but the legal obligation very much weakens or disappears altogether. In this case the son is mature and physically fit. Also his relationship with his father leaves very much to e desired. I am therefore of the view that brideprice is not a necessity which the father is legally bound to provide to his son at this stage of his life. The courts have therefore no inherent jurisdiction to enforce it.” Appeal allowed.

(1969) H.C.D.

- 178 –

200. Athumani Ibuba v. Salim s/o Jeu, (PC) Civ. App. 5-D-69, 17/8/69, Biron J.

Respondent sued the appellant in the primary court, claiming a parcel of land which he asserted he had granted the appellant on loan for three years, which period had now expired. The respondent resisted the claim, and asserted that the land had been granted to him by a third person when it was bush and he had cleared it, cultivated it, and even built a house thereon. The evidence was predominantly in favour of the respondent, ad the assessors had in his favour as well. The primary court magistrate, however, ruled in the appellant’s favour on grounds of public policy, holding that although the land had originally belonged to the respondent and had been granted by him to the appellant, the latter was entitled to it because he had developed it, whereas the respondent had done nothing. The District Court varied this order upon appeal. It held that he trial magistrate was wrong to disagree with the assessors and that as the respondent had established a clear and unequivocal claim to the land he was entitled to receive it. On appeal to the High Court.

Held: “Apart from the fact that it is by no means certain that the respondent would not cultivate the land in dispute on it being returned to him, even if it were in the public interest to deprive him of it the court has no right to arrogate to itself such powers. As found and held by the district court magistrate the respondent had fully established his claim to the land, and it was in accordance with customary law that it should be the primary court magistrate. Incidentally, had this case been dealt with by the primary court after the coming into force of the Magistrates’ Courts (Amendment) Act, 1969, on the 1^st July, the respondent would have won his case in the primary court on a majority verdict.” Appeal dismissed.

201. Haula Dad & Rose (Tanganyika) Ltd. v. Hem Singh, Civ. Case 101-D-68, 8/8/69, Georges C. J.

The plaintiff claimed a sum of money from the defendants for work done ad materials supplied between April, 1965 and October, 1966. The defendants in their defence and counter-claim alleged that the plaint was defective in that it did no specify to whom the services and materials alleged to be supplied were in fact supplied.

Held: The defendant relied, in support of their argument, on the case of Bruce v. Ordhams Press Ltd. [1936] 1 All E.R. 287. That case was a libel case, and the issue there arose in the following way: The libel did not particularly refer to the plaintiff. It was alleged that it contained an innuendo and that innuendo was pleaded, but it was no-where made clear that the plaintiff was linked with the innuendo. The plaintiff’s argument was that since the plaint contained the general statement that the defendants had published the libel of the plaintiff, then the cause of action had been disclosed, and no particulars could be requested. Scott, L. J., in his judgment, stated that a very clear distinction should be drawn between the statement of material facts which should be pleaded and other matrers which could be the subject of a request for particulars. He was of

(1969) H.C.D.

- 179 –

the view that the failure to link the innuendo directly with the plaintiff was a failure to state a material fact and that the statement of claim would, therefore, have been demur able under the old system of pleading or be liable to be struck out under the then existing rules. It was not a matter which would justify merely a request for particulars, the granting of which was a matter of discretion. This may well be the case, but it is my view that the plaint now under consideration has not failed to state any material fact. The action is one of contract, and, in my view, the kernel of the contract is the request by the defendants for the performance of the services or the supply of the goods. Once that request is pleaded and performance alleged, then the cause of action is disclosed. It may be that the defendants for the performance of the services or the supply of the goods. Once that request is pleaded and performance alleged, then the cause of action is disclosed. It may be that the defendants can allege that the performance was not in accordance with the request made. It may be also that the defendant may say that the request has not been pleaded extensively enough, and there-forefather particulars of the request would be needed so that the defendant would know what case he had to answer. But once the request is pleaded and the performance thereof alleged, as they are in this case, then the cause of action has, in my view, been disclosed.” Action to proceed to trial on pleading as they are.

202. Commissioner General of Income Tax v. Muruddin Hassanali Noorani, Misc. Civ. App. 1,2,3,4 – 68, 1/4/69, - J.

The respondent was employed by a firm as an engineer and lived in Tanga, from 1932 to 1955 continuously, apart from a short absence in 1949. He had by this time founded a flourishing chemical oil refinery amongst other interests, and also a large family. In 1955 his health broke and he visited Europe for treatment, not retuning until 1957. In 1960, he again left for Europe allegedly because of ill health. On this occasion he bought a house in Dulwich, England, and the whole family removed to that country. However, the respondent continued making fairly regular visits to East Africa. During part of respondent’s 1962-1963 visit he stayed in the guesthouse at Tanga, his property, which he had not let with his main house. During his visits to Mombasa in 1962 – 1963 & 1964, he stayed in a flat belonging to his nephew. He also owned a block of flats in Mombasa one of which became vacant in 1965, which he retained for his own use and in which he has lived ever since. The major portion of his stay in East Africa was spent in Tanga until 1965, when he occupied one of his flats in Mombasa. Apart from this the respondent kept his banking account in East Africa and in 1964 acquired Kenya Citizenship. The Commissioner General argued that the respondent abandoned his residence and therefore his ‘home’ in East Africa, in 1960, when he bought a house in Dulwich and removed the family to England. The respondent argued that for taxation purposes he was a resident of East Africa and therefore entitled to the benefit of tax allowances. The definition of a “Resident” as set out in section 2 of the Act is as follows: “Resident in the Territories” where applied in relation to any year of income:- (1) to individual, means that such individual resides except for such temporary absences as the Commissioner may determine to be reasonable, in any of the Territories; and an individual shall be deemed to reside in the Territories if he:- (a) has a home in any of the Territories and, was present in the Territories for any period in such years of income; (b) has no home in any of the Territories”, (paraphrase) but was present for certain periods of time as specified in this paragraph.

(1969) H.C.D.

- 180 –

Held: (1) “A preliminary point as to the proper procedure to be adopted was at first agitated, arising out of the apparent conflict between section 113(c) of the Act and rule 10 of the Income Tax (Appeals to the High Court) Rules 1959. However the procedure laid down by the Court of Appeal in KHAMBAITA & OTHERS V. COMMISSIONER OF INCOME TAX (1954) 21 E.A.C.A. 16 was followed………… I have borne in mind the observations in Khambaita’s case, that I am obliged to approach every issue of fact as res integrum and to make the necessary findings regardless of the views of the local committee.” (2) “It is not necessary in an appeal of this nature to find affirmatively that the facts are as the Commissioner General alleges, but it is only necessary to decide that there was insufficiently good evidence to justify a finding for the tax-payer. If the result should be that there was insufficient evidence, the local committee’s views will not be maintainable.” [Also following Khambaita’s case per Briggs J.A. at p. 18]. (3) The respondent argues that he never intended to leave East Africa without returning. He left his property intact, as he says, without disposing of it at a profitable time. First, there was his house which had been his real home in Tanga, and which he had leased ……. The guest house on the Respondent’s property was excluded from the lease and the Respondent occupied it during part of his 1962 and 1963 visit to East Africa. This guest house had been part of the Respondent’s main house, it was furnished with the Respondent’s own furniture; his married daughter generally supervised it in the Respondent’s absence and while he stayed in it, a servant was engaged and the respondent ate most of his meals there. In 1964 he occupied the whole house. But the duration of the Respondent’s visits were indeed short, and the premises were again relet in December, 1964, after which he never lived in that house again. The Respondent also had valuable property in Mombasa consisting of a block of flats and other premises. One of these flats became vacant in June, 1965. The Respondent retained it for his own use and after renovation; he has lived there ever since. Apart from this, the respondent had his shares in the Refinery which he finally sold in 1965 to repay debts due to his ill-health. It seems clear that the Respondent’s major landed interests still existed in East Africa throughout the years under review. Apart from this, I should perhaps note that the Respondent kept his banking account in East Africa. There is also his passport status. In 1960 the Respondent was a British Protected person. In 1963 he acquired a permanent certificate of residence in Kenya and in 1964 he acquired Kenya Citizenship. One of his daughters is in the same position and the rest of the family are either acquiring a similar status or have acquired citizenship in one of the Territories. In my opinion, taking all these facts together, the Respondent’s evidence sufficiently proved that he never intended to abandon East Africa, and I think that in so far as intention affects the case, everything points to the fact that the Respondent intended to return when he was able as the education of his children or his health permitted. His frequent visits make it clear that he wanted to keep his ties, and in the end he has returned here. (4) It was agreed first to all that the approach to the deeming sections of the definition must follow the observation of the Court of Appeal in Arnantoglu’s case (1967) E.A. 312 at p. 313. As this is a case said to be of novel impression, it is as well that the proper canons of construction are referred to. I think I cannot do better that repeat Rowlatt J. ’s statement in CAPE BRANDY SYNDICATE vs. INLAND REVENUE COMMISSIONERS (1921) I.K.B. 67 at 71, as approved by Viscount Simon L.C. in CANADIAN EAGIE OIL CO. LTD. vs. THE KING (1946) A.C. 140:- “In a taxing act one has to look merely at what is clearly

(1969) H.C.D.

- 181 –

said. There is no room for intendment as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.” Only in a case of apparent ambiguity can some favour be shown to the tax payer INLAND REVENUE COMMISSIONERS vs. BLANDNOCH DISTILLERY & CO. LTD. (1948) A.E.R. 616. There is no difficulty in knowing what is required by the first deeming provision as such. There must be a home and presence. Once those factors are proved, then whether normally speaking one would consider the Respondent a resident is not to the point. He must be deemed to be resident. Secondly, it is agreed that this Respondent can only be deemed, if at all, to be a resident under section 2(1) (a) of definition. As already noted the respondent is not directly a resident and he does not qualify under the second deeming provision, because he was not present for the requisite periods as laid down in that section the various parts of the section seem to import that under section 2(1) (a) presence in the territories need not be for long. No argument arises on the question of the length of presence necessary. It is agreed that the Respondent was sufficiently present in each of the years in question. The argument centers on the meaning of the word “home”. Thirdly, as to the word “home”, there is no definition in the Act, nor any direct authority upon the meaning of that word that can be discovered. It was noted however, that the Act specified “a home”, which presupposes that the tax payer may have more than one home and yet be deemed a resident. That situation was accepted by the Commissioner. It was further noted that the act contains no qualifying words. The home in East Africa does not have to be the main home, so long as it is a home. Mr. Kuss referred me to BECK v. SCHOLZ (1953) K.B. 575 where Ever shed M.R. remarked that he thought that the Courts ought to regard with reserve the doctrine of he “two home” man in relation to the rent restriction legislation in England. I venture to suggest that there is no such need for reserve in connection with the present legislation. The taxpayers’ presence need not be for long. What may be a sufficient basis for collecting tax is not a all the same thing as a sufficient basis for protecting his tenancy. It was agreed on either side that there would be nothing amiss in principle in the Respondent having a home in Dulwich as well as East Africa; the question was whether he did in fact have a home in East Africa. As to the meaning of the word “home” Mr. Inamdar preferred to rely upon a passage in McNeil and Bechgaard on Income Tax, (page 9) where the learned authors suggest that a home is an abode available and used. He also referred to the meaning ascribed to the word in the Shorter Oxford Dictionary:- “A dwelling place, house abode; the fixed residence of a family or household: one’s own house; the dwelling in which one habitually lives, or which one regards as one’s proper abode.” The dictionary puts forward the general idea of a family residence, but it also links other aspects such as ownership (e.g. one’s own house); as well as length of occupation. The central idea seems to be some tie to something in the nature of continuity of use before a dwelling can be said to be a home. (The judge then referred to the English cases of Herbert v. Byrne (1964) 1 ANER AT 887 and Beck v. Scholz (above) at 575). I think it is clear from those passages that there is a difference in objective between the approach of the English Courts to the Rent Acts and the present legislation. As Mr. Inamdar pointed out the tenant had to be in occupation, and then in such occupation as he could be said to have made a home in the premises, in order to claim protection. It was not.

(1969) H.C.D.

- 182 –

sufficient if he used the premises as a convenience or a resort. But section 2(1) (a) contemplates a person being deemed a resident and thus liable to pay tax even though he may be largely absent from East Africa as long as he has one of his homes here. I think that the rather strict view which declined protection to person who was fortunate enough to have more than one dwelling is not in keeping with the present definition. (5) “It is not disputed that there must first of all be premises in the nature of a dwelling house, whether the whole or part of the premises concerned, so long as the entity in question provides the normal facilities of life. There must secondly be dome tie or element of continuity. I agree that mere availability alone may not be sufficient, though availability there must also be. It was not suggested that one could claim to have a home during a fortnight’s holiday visit, while staying in the house of somebody else who had made available for that purpose. Nor could one claim to have a home in premises which though previously occupied by one as a house, had then been disposed of by a lease. If no parts of the premises are available, one cannot have a home in those premises despite the ultimate reversion. For these reasons I indicated during argument that I could not see my way to accepting that the Respondent could have made a home in the flat of his nephews in Mombasa. It was clearly a convenience.” (6) “There may be case where the right to occupation is a mater of agreement being largely a matter of grace; where nevertheless long occupation may give rise to the conclusion that the dwelling is the home of the occupier. That is to ay that the element of continuity may reside in settled occupation rather than ownership.” (7) “It follows then that having his own house (in Tanga) as a home from June 1962 onwards until December, 1964, the Respondent’s presence in East Africa in 1962, 1963 and 1964, either at Mombasa or Tanga or both in those years, sufficed to bring into operation the deeming provision of section 2(1) (a) of the Act. Similarly, in the case of the flat held by the Respondent in 1965. Accordingly I hold the local Committee came to a correct view of the case. I am satisfied that the evidence sufficiently proves that the Respondent was properly deemed a resident and his tax should be assessed on that basis.”

203. Tanzania Exhibitors Limited v. Karimbhai Hassanali Adamji Jariwalla Civ. Case 22-D-1968, 1/2/69, Duff J.

Under an agreement dated the 26^th day of February, 1965, the defendant leased to the plaintiff company the Cameo Cinema at a yearly rent of Shs. 36,000.-, payable by equal monthly instalments of Shs. 3,000/-, for a term of two and a half years commencing on the 1^st of March, 1965. When the lease expired, the plaintiff company remained in possession and refused to yield up the property, claiming protection by the provisions of the Rent Restriction Act, Cap. 479, which had been extended to include commercial premises with effect from the 1^st January, 1967.

Held: (1) “Without reviewing the evidence in full, the picture that emerges is that the defendant seeks possession of the Cameo Cinema the lease of which has expired, he being anxious to trade again in what has become a fairly lucrative business. The plaintiff company, in addition to running the Cameo Cinema, own a premises known as the Empire Cinema which are at present occupied by a third party, against whom there is a judgment granting possession of the premises to the original owner the present defendant, the latter having assigned the benefit of that

(1969) H.C.D.

- 183 –

judgment to the plaintiff company. In opposing the claim for possession, Mr. Lakha has urged that it is not sufficient to plead that the defendant wishes to occupy the premises, and that it was incumbent on him to claim that he reasonably required an needed them. [Citing: Shrimpton v. Rabbits, Law Times Reports Vol. CXXX1, 478]. It seems to me that a wish, desire or requirement are attributed with the same meaning, and that the defendant’s wish to run a profitable business, ignoring the balance sheets that have been produced, is quite understandable and reasonable, his financial status having deteriorated. It was suggested that Kapoor’s company was only now reaping the benefit of their original [Tanzania Exhibitors Ltd.] investment in carrying out repairs to the cinema, but, as indicated earlier, this was done with a view to improving the trade while the lease was in existence, and quite obviously the directors have benefited, particularly Kapoor, who is drawing a salary of Shs. 42,000/- per annum. Again, this fact is one that has to be weighed in considering whether it would be reasonable to grant possession to the landlord, who hopes to increase his income, with the consequent loss to the directors of the plaintiff company of what they choose to term their salaries.” (2) “It was suggested by Mr. Lakha that section 19(1) (j) (ii) of the Rent Restriction Act could not be relied upon by a landlord seeking possession of commercial premises because the particular subsection referred obviously to a dwellinghouse which a land lord would require for his own occupation or for the occupation of his wife and children or for some person in his whole time employment …….. I am inclined to agree with Mr. Lakha that the particular subsection by its very wording refers to a dwelling house only and not to commercial premises, the basis of the defendant’s case however being contained in the provisions of section 19(1) (e) (ii) of the Act, which is specifically applicable to commercial premises”. (3) “In order to succeed in his claim, the defendant has to satisfy the court that it is reasonable to make an order for the recovery of possession, and that alternative accommodation reasonably equivalent is available or will be available when the order for possession is made, or that the plaintiff company owns commercial premises which are available to it. In considering whether the premises are reasonably required, it is the court’s duty to take into account all relevant circumstances as they exist at the time of the hearing, and the positions of both sides must be considered and the various factors weighted.” (4) “When the plaintiff company leased the premises from the landlord, a contract of sale between the same parties was entered into on the very same day, the purchase of the premises known as the Empire Cinema being involved ……. I think it must also be accepted that the sale of the Empire Cinema and the lease of the Cameo were linked together, as suggested by Jariwalla, who claimed that the sale would not have gone through without his consent to the granting of the lease to the plaintiff company; paragraph 4(e) of the lease tends to support Jariwalla’s evidence on this point. The position at present is …. That despite the balance sheet of the plaintiff company the Cameo Cinema business is a lucrative one which the defendant is anxious to benefit from now that the lease has expired. It must be accepted that he is in financial difficulties, and that the income of Shs. 3,000/- per month which he receives by way of rent from the plaintiff company is inadequate to support both him and his dependants …. It seems to me and I hold that, weighing the evidence and considering the circumstances of both sides, it would be just and equitable to give possession of the

(1969) H.C.D.

- 184 –

Cameo premises to the landlord but before making an order to that effect I would have to be satisfied that alternative accommodation was or will be available. For this reason I think it proper to adjourn my final decision in the matter and to await the outcome of the execution proceedings in respect of the Empire Cinema [as possible alternative accommodation].

204. Mkakofia Meriananga v. Asha Ndisia: (PC) Civ. App. 71-A-1966 6/5/69 Platt J.

Marusuku, the respondent’s husband, had allowed his brother, Meriananga, the appellant’s husband, to occupy and use a portion of his land. This was about thirty years before the suit. Meriananga had then divorced his wife and gone away leaving her the land to occupy and cultivate. After sometime the respondent, Asha, brought a suit before the court to have her title to the land confirmed. The Primary Court held that while Marusuku had been the fist occupier of the land and had then allowed it to be used by Meriananga, nevertheless, Asha ought to have brought the case within 12 years under rule 2, of the Customary Law (limitation of Proceedings) Rule 1963 G.N. 311 of 1964. the suit was dismissed . On appeal, the District Court allowed the appeal reversing the lower court’s holding. Mkakofia appealed stating it would be unfair to ask her to leave the land, on the grounds, inter alia, that she had used the land for more than 30 years.

Held: (1) Rule 2 of the Limitation Rules ……. Very clearly shows that no proceedings for the enforcement of a claim of this of 12 years; such period being deemed to commence on the day when the right to bring such proceedings first arose or on the day when these rules came into operation, whichever is the later. Therefore, the period of 12 years commenced on the 29^th May 1964, the date when the Rules came into operation, because that was the later date, the right to bring the proceedings having occurred sometime earlier. If that be so, then the suit was not statute barred. Perhaps I should point out that under Rule 3 (4), the Primary Court can in its discretion admit any proceedings even after the expiration of the period of limitation has expired, if it is satisfied that he person bringing such proceedings was unable for sufficient cause to bring the proceedings earlier.” (2) “The District Court did not consider what I think was the Primary Court’s main aim in dismissing the suit, namely that Mkakofia should not be disturbed after 30 years of occupation. But in any event, I think, the district Court would have come to the same conclusion. If Asha and Marusuku had opened up the land and allowed Meriananga and Mkakofia to occupy part of the land as a matter of family arrangement, then while Asha occupied adjacent land in dispute, there was no way in which Mkakofia could assert ownership of land unless she had taken some steps to deal with it against the interest of Asha. As far as I can see, there was no evidence that Mkakofia ever did so. Accordingly I cannot say that she acquired the free title to the land when her husband and her-self had only been allowed to occupy as tenants at will. Accordingly Asha’s right to the land is confirmed.” (3) Asha should have possession of the land. “But I would point out that if Mkakofia has left improvements on the land of a permanent nature, she may sue Asha for the value of such improvements. Moreover, in accordance with customary law, if she has any crops growing on the land, she shall be allowed to harvest them”. (4) Appeal dismissed.

(1969) H.C.D.

- 185 –

205. Lodick Kisamo – (Administrator of the Estate of Gilbert Andrew Kisamo Deceased – and Mrs. Ndewiriomo G.A. Kisamo v. Onaufoo Kundaeli, Civ. Case 11-A-1967, 4/6/69, Platt J.

This case arose out of an accident involving a lorry and a car driven respectively by the defendant and the deceased, who died as a result of the accident. The suit was originally filed by the administrator of the estate of the deceased. In the amended plaint Mrs. Kisamo, the deceased’s widow, was added as second plaintiff. However, by virtue of the terms of Section 4(1) Law Reform (Fatal accident and Miscellaneous Provision) Ordinance Cap. 360, the suit had to be brought in the name of either of them but not both. The administrator withdrew his sit leaving the deceased’s widow to sue on behalf of herself and the other dependants for general damage. It was agreed by the parties that the court should be invited to confine itself to the issues of liability alone, it being said that the quantum of damages will be settled by the parties, without of course, precluding the right of appeal against the findings of liability by the court.

Held: (1) “The issues of fact are not entirely easy to resolve on the evidence before the court, although the accident was, in one sense, relatively simple. It occurred at the junction of the main tarmac road with an earthen road of access leading from a bar ….. The difficult part of the case consists in deciding where at the junction of the access road with the main road, the collision occurred. Putting the issue shortly, for the defendant it was claimed that the deceased drove out of the access road on to the main road, thus cutting across the defendant’s path in such a way that the defendant was unable to avoid the accident; while for the deceased it was alleged by a bystander, the witness Boyd (P.W. 3), that the deceased had crossed over the main road and was going up the hill towards the Trade school when the lorry collided with him…….. The junction lay in a rural belt of country sporadically inhabited, with a tall stand of maize on either side of the main road behind shrubbery acting as a sort of hedge between the edge of the maize and the murrum shoulder or verge of the road …. Although the access road did not lead abruptly on to the main road but funneled out near that road fairly broadly where the roads joined might be described as an informal junction of a very minor road, not a great deal better than a track, with an important tarmac though fare, in a rural area. I need hardly say that there were no traffic signs placed at the junction to guide motorists and there was but a small private sign saying “Peter’s Bar”. The Junction is not lighted. There is nothing to warn the driver of a vehicle coming from Moshi, of the presence of the access road; indeed even the bar sign would have to be looked for rather carefully ….. Furthermore, because of the acute angle between the access road and the main road from Moshi, it would be very difficult to see a car approaching the junction from the access road, until it was in the funnel and almost upon the main road. In these circumstances, there can be no doubt that in general, a driver from Moshi would have the right of way and a driver turning from the access road to Moshi, must certainly stop before crossing the line of traffic coming from his right. That must be so because not only would the driver from the access road be joining the main road, but because of the slope up to the main road and the vegetation clouding his vision. What has been said so far pertains largely to the situation in which drivers would find themselves during daylight. Now I turn to the situation which confronted the parties at 8.30 p.m. on the fatal day ….. The major point made by the parties, concerned

(1969) H.C.D.

- 186 –

the lights operated by the two drivers. For the plaintiff, it was argued that the defendant ought to have seen the lights of the Volkswagen and therefrom to have been aware of its approach; but the defendant denied seeing any lights until the Volkswagen came onto the main road. Speaking generally, I think, the Volkswagen a notoriously small car, would have been entirely hidden by the maize and shrubbery from the defendant’s view ……… it seems clear that as the Volkswagen was driven down the access road pointing away from the defendant’s vehicle, the car and its lights would not be seen until it was in the funnel of the access road. One must also bear in mind that the lights of the Volkswagen, shining at a level lower than that of the main road, would be further obscured. I cannot say, therefore, that I can disagree with the defendant’s evidence that he did not see the Volkswagen’s lights through the bushes and trees nor thrown across the main road ….. It comes to this that until the deceased had driven his car on to the incline of the funnel turning round towards Moshi …….. The defendant would not have any proper indication that the deceased was about to cross his (the defendant’s) path.” (2) “If that is so, then as I have said it was the clear duty of the deceased to stop and allow other traffic on the road to pass by before crossing the road. But of course, if the defendant became aware of the deceade’s car joining the road at such a time that the defendant himself could slow down and allow the deceased to drive on to the main road, the defendant had no right to insist on his right of way. I was referred to various authorities illustrating the principles involved in a situation such as this, the most important being ZARINA A. SHARIFF v. NOSHIR P. SETHNA & OTHERS (1963) E.A. 239 (C.A.) where the law was exhaustedly examined. Although the facts in Zarina’s case are not at all similar to those in the present case, nevertheless, I accept with respect the principle adopted, namely that driver on a major road has always the duty to keep a proper lookout for traffic approaching the main road from a minor road and that he cannot assume that traffic from the minor road will necessarily act in accordance with the law and so give way. But I find a more useful example of the situation which faces me in the instant case in USHA v. BACHUBHAI AND OTHER (1965) E.A. 433 (C.A.) where the facts relate to the junction in a rural area. There it was held that the driver on the major road in that case was under no duty to stop or slow down or keep a particular lookout for traffic on the minor road because on the evidence he did not know of the existence of the junction and had no reason to know of it. the river on the major road was under no duty to anticipate the reckless driving of the driver coming from the minor road since the former could not have been expected to e aware of the danger until he was so close as to make it impossible for him to avoid the accident. The position between the two points of view seems to me to have been authoritatively summed up by Newbold, J.A. (as he then was) in Zarina’s case when he said “It is the duty of every driver to guard against the possibility of any danger which is reasonably apparent, but it is not his duty to proceed in such a way that he could avoid an accident to matter how reckless the other party may be.” This dictum was approved in Ushas case, and with respect, I think it is a pertinent test to apply in the instant case. Whether the defendant was sufficiently aware of the Volkswagen car, determines his liability, for otherwise he could not have been expected to guard against the danger of the deceased turning into the main road from a position in which he could not be seen by the defendant. To a large extent, the answer to this question would be governed by the point of collision on the main road.” (3) On the balance of

(1969) H.C.D.

- 187 –

probabilities, the defendant’s version must be accepted, that collision occurred as the deceased drove out of the access road on to the main road, cutting across his path so that he could not avoid an accident. (4) “In the result therefore I find that the defendant could not have been aware of the presence of the car being driven away from the bar and down the access road. I do not think that the position of the deceased’s car at the edge of the road gave sufficient warning to the defendant as the deceased crossed the road the defendant could not stop to avoid the accident. Therefore, I hold that the deceased was entirely to blame.” …. (5) Plain dismissed.

206. The National Bank of Commerce v. Manubhai Shankarbhai Desai and Others, Civ. Case 12-D-68, -/3/69, Georges C. J.

The plaintiff – applicant filed a summons ex parte asking for an order of attachment before judgment of certain property of the second defendant, or for security of Shs. 60,000/-. The second defendant contested the application and an objection was also filed by a party claiming to have an interest in the property. The background to the application was this. The plaintiff sued, the second defendant and four others for Shs. 976,535/-. They were guarantors of a loan to Bombuera Limited – a sisal estate company in liquidation. The loan was secured by a debenture on the assets of the company. The plaintiff as the debenture – holder appointed a Receiver. Four of the defendants including the second defendant, were out of the country. The fifth defendant was a family holding company owned by the family of the second defendant. The plaintiff alleged that the second defendant was about to sell a property which he owned in Tanga to the objector, that it was the only property which he owned in Tanga, that the transaction was awaiting the consent of the Commissioner for Lands and that unless the property were attached the plaintiff would lose his right to satisfy at least in part any judgment he might obtain in the suit. The plaintiff’s Manager who swore to the affidavit, stated that in his opinion the property was worth Shs. 60,000/- and he asked that the second defendant be asked to supply security in that sum if the attachment was to be lifted.

Held: (1) “Before coming to the merits of the application ……. It is necessary to deal with a preliminary objection taken by Mr. Tahir ali [the advocate for the plaintiff] to the admissibility of the affidavits. Order X1X, Rule 3 of the Civil Procedure Code reads:- “(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove except on interlocutory applications on which statements of his belief may be admitted: Provided that the grounds thereof are stated.” Mr. Tahir Ali’s argument was that the affidavits filed in this mater on behalf of the objector and the second defendant were deficient in form in that they did not specify that which the deponent knew of his own knowledge and that which he knew by information and belief specifying the grounds. Accordingly, they should be rejected and the applications dismissed. He relied on Bombay Flour Mills v. Patel (1962) E.A.805. A convenient point from which to begin the consideration of this objection s Standard Goods Corporation Ltd. v. Harakhchand Nathu and Co. (1950) 17 E.A.C.A. 99. In that case, there was an application for attachment before judgment. Paragraph 2 stated that “the facts stated herein were within the knowledge” of the deponent. Paragraph 7 stated that what was stated therein was true to the best of his knowledge, information and belief. The core of the affidavit was

(1969) H.C.D.

- 188 –

a paragraph alleging that the “defendant company has been disposing of its goods and giving away some of them to person or persons who are alleged to be its creditors.” The Court held that: - “An affidavit of that kind ought never to be accepted by a Court as justifying an order based on the so called ‘facts’. What was within one’s knowledge could be said to be so either from physical observation or from information given by someone else. It was clear that the knowledge arose from both source and there had to be a clear statement as to the source from which each fact derived.” The Court added: - “It is well settled that where an affidavit is made on information it should not be acted upon by any Court unless the sources of the information are specified.: The above quoted passage from this case was cited with approval in Noormohamed Janmohamed v. Kassamali Virji Madhani (1952) 20 E.A.C.A. 8. In that case it would appear that there was nothing whatsoever in the affidavit to indicate whether or not the facts were deposed from the deponent’s own knowledge or from information and belief. In Bombay Flour Mills v. Patel (1962) E.A. 803, the cases were reviewed by Windham, C. J. He noted that the Indian case of Chandrika Prasad Singh & Others v. Hira Lal & Others (1924) A.I.R. Pat. 312, had not been drawn to the attention of the Court in either of the two carlier cases. There a distinction had been made between: - “an affidavit of the kind under consideration both there and here where nothing at all is said about whether the facts are deposed to from knowledge or from information and belief and one where it is stated that they are upon the deponent’s knowledge, information and belief without its being made clear which facts are from his knowledge and which upon information and belief. In that case it was held that an affidavit of the former kind was good while that of the latter kind was bad.” In the Indian case, Miller, C. J.., stated:- “In such a case [where the affidavit is said to be true to the best of the deponent’s knowledge, information and belief], it is clearly desirable and imperative that the deponent should state how much of the affidavit is sworn to from his own knowledge and how much is merely sworn from information which he believes to be true, but if the affidavit contains no such statement as that to which I have referred but merely alleges certain facts and is signed by the deponent who swears to them, it must I think, be taken that the statements made by him are true to his knowledge.” It is clear from the context that the learned Chief Justice was using the term “knowledge” here to mean knowledge from personal observation. The distinction appears to me to be valid, and from the tenor of the judgment of Windham, C. J., in the Bombay Flour Mills case, it is clear that he held it to be persuasive. He held, however, that the decision in the Noormohamed case was binding upon him, and he found it was not distinguishable. It is clear in the Noormohamed case that judgment was given for the appellant on a number of grounds. Under consideration then was a temporary injunction granted under Order XXX1X, Rule 1, of the Indian Civil Procedure Code. Rule 3 of that Order provided that such an injunction should not be granted, without notice of the application being given to the other side, unless it appeared that the object of granting the injunction would be defeated by the delay. No notice had been given to the other side. The Court held that the provision as to notice was mandatory and that there was no evidence to satisfy the Court that delay would defeat the purpose of the injunction. The summons contained no reference to Rule 3, and the only paragraph in the affidavit which could be prayed in aid of the issue of an immediate injunction was paragraph 10,

(1969) H.C.D.

- 189 –

which stated that future, goods and effects were in danger of being wasted or wrongfully sold in execution. Unless particulars were set out in support of this opinion, it was clearly valueless. There was thus no evidence to justify the issue of an immediate injunction, irrespective of the form of the affidavit. The Court went on to consider the slovenness of the affidavit and quoted with approval the excerpts from the Standard Goods Co. Ltd. case already cited above. The distinction between the forms of the affidavit in the two cases was not considered, and I do not, with respect, think that the case should be considered as binding authority where the form of affidavit is different. The ratio decidenti of the case would appear to be the finding that there was no evidence to justify the granting of the injunction ex parte. There should have been notice. The criticism of the affidavit would appear to be obiter. In his affidavit, Vinubhai Shankerbhai Desai states that the facts as regards the sale of the property are within his personal knowledge …. Even assuming that paragraph 5 sets out facts which are not within his personal knowledge (and I see no reason why this should be assumed), they are not facts on which I propose to rely in reaching a decision in this matter ……. Paragraphs 6 and 7 deal with the sale which he has already stated to be within his personal knowledge, and he exhibits the relevant documents to the affidavit. Paragraphs 11 and 12 set out matters sworn to on information and belief, but the source is specified. The affidavit is one which contains relevant and admissible evidence on which I can act. The affidavit of Mrs. Serkarbhai Fakruddin does contain the general declaration that the facts stated in the affidavit are true to the best of her knowledge, information and belief. It does not; specify what is stated on information and belief and what from personal knowledge. It can, therefore, be criticized. On the other hand, she is the purchaser of the property and she took possession of it. She carried on repairs. Further, she has appended Photostat copies of the agreement for sale and the transfer, which speak for themselves. Though not specifically stated, paragraphs 1-8 are clearly from her personal knowledge. Similarly, paragraphs 9-11 are clearly sworn to on information and belief, and since the source has not been set out, the paragraphs are clearly bad and should be struck out. There remains a body of evidence sufficiently vouched in the affidavits from personal knowledge or from information and belief with sources specified to enable the matter to be disposed of.” (2) “Two matters arise for consideration – first, the second defendant’s arguments showing cause why the property should not be attached and why he should not be asked to provide security: and, secondly, the objector’s claim that the property is hers and not subject to attachment. I am satisfied that she has none. The Freehold Titles (Conversion) and Government Leased Act, Cap. 523, section 19(1) provides: - “A disposition of a Government Lease shall not be operative without the consent of the Commissioner.” Subsection (2) defines disposition, and this includes – “ a deed or arrangement or declaration of trust binding any party there to make any such deposition aforesaid, including a deed or agreement, entitling a party there to require a disposition to be made.” The agreement for sale is clearly an “arrangement entitling a party thereto to require a disposition to be made.” The Commissioner’s consent was not obtained. It is, therefore inoperative and could pass no interest. Similarly, the transfer signed by the second defendant is ineffective to pass any interest. Indeed, in the case of transfer, it will become void if the

(1969) H.C.D.

- 190 –

Commissioner does not signify his consent within six months of its having been submitted to him. There is no evidence as to the exact date on which it was submitted but it is possible that it is not yet void. I agree that the Indian cases on the attachment of property which is the subject matter of a contract for sale cannot be examined for guidance because of basic dissimilarity. An agreement for sale of Government Leasehold land here is not capable of specific enforcement unless the commissioner’s consent has been obtained. I am satisfied that the property legally belongs to the second defendant and that he could, if he wished, sell it to another person without fear that the objector could successfully lay any claim to it. His liability would amount to no more than an obligation to return the Shs. 10, 000/- already paid and possibly to reimburse the objector the cost of repairs. On the other hand, I am satisfied that the second defendant desires to carry out his obligations under the contract. The objector has clearly spent substantial sums on improving the property. There is no reason to doubt that the purchase price agreed between the second defendant and the objector represented the fair value of the property at the time of sale. The plaintiff now places the value at Shs. 60,000/- double the purchase price. This confirms that the objector did spend a sum in the region of Shs. 30,000/- on improvement. She asserts that it was Shs. 40,000/- and this is far from unlikely. For all these reasons, it is argued on behalf of the objector that she is in possession of the property in her own right and that her objection must succeed. Reluctantly, I must reject this argument. The law is clear. Though the objector is in possession, she is no more than a licence pending the Commissioner’s consent being obtained. If the consent is refused, then paragraph 8 of the agreement for sale provides that she will be deemed to be a tenant as from the date of her being let into possession at a rent of Shs. 300/- a month, until she has recouped her part payment and any sum she may have spent on the property. If she has spent Shs. 40,000/- as she says she has, that tenancy would not be operative, as it would clearly be a lease for a period longer than five years and would need the consent of the Commissioner. Her possession is not such as can support her objection. I would rule that he property could be attached. The claim of the objector is accordingly dismissed.” (3) “There remains for consideration the second defendant’s arguments showing cause why the property should not in any event be attached even if it is his property, and why he should not be called upon to give security. In as far as these arguments are based on the assertion that the plaintiff’s debt is otherwise adequately secured, I cannot accept them. I am also satisfied that the second defendant has no property here. I do not agree with Mr. Tahir Ali that the second defendant was in fact being fraudulent when he purported to sell the property to the objector. Clearly, however, if the sale is allowed to proceed, and if the second defendant is allowed to lay his hands on the balance of the purchase price, the plaintiff will be obstructed to that being fraudulent when he purported to sell the property to the objector Clearly, however, if the sale is allowed to proceed, and if the second defendant is allowed to lay his hands on the balance of the purchase price, the plaintiff will be obstructed to that extent in the execution of any decree which he might obtain. He should, therefore, be asked to furnish security, but not in the sum of Shs. 60,000/- as claimed. By the time the suit had been filed, the second defendant had done all that he could have done to transfer title to the objector. The absence of consent makes this inoperative, but, as I have indicated, I am satisfied that he wishes to honour his contract. Acting in good faith, the objector has spent a large sum of money on the improvement of the property. The plaintiff now wishes to have the advantage of that. This would be the effect of making an order that the

(1969) H.C.D.

- 191 –

property be attaché unless security in the sum of Shs. 60,000/- is furnished. The second defendant has not shown cause why he should no furnish security, but he has shown ample cause why he should not furnish security in the sum of Shs. 60,000/-. He should be asked to furnish security in the sum of Shs. 20,000/-. If he does so, then the transaction can proceed as it does not appear that the Commissioner for Lands has any reason for withholding consent other than the claim put forward by the plaintiff.” (4) Objector’s claim dismissed. Shs. 20,000/- security to be deposited in Court within 4 weeks by second defendant failing which the property to be attached.

207. Mohamed H.S. Dewji v. The Commissioner of Income Tax, Civ. App. 4-A-68, 22/7/69. Platt J.

Appellant, who was director of a company with braches in Arusha, Moshi and Zanzibar, had spent his whole life in Zanzibar. In 1964, he wound up his affairs there are arrived in Moshi with his whole family. On 1 January 1965 he went to Pakistan to find another home for himself and his family – leaving his family to live with his brother Yusuf in Arusha. After acquiring property in Pakistan, he came back in April, for three weeks to arrange for his family to travel to Pakistan. In 1967, he came back again for a brief visit. Upon being assessed for income for 1965 as a “resident”, appellant appealed to the Local Committee; but being dissatisfied with the decision of the Committee, appellant to the High Court on the grounds that he was not a “resident” and therefore not chargeable for income tax as a resident in the year in question. He claimed to have taken up permanent residence in Pakistan and to have divested himself of residence in Tanzania. However, the appellant, in his application for tax clearance in April 1965, had stated that the purpose of his visit was ‘business’ and he intended to come back in July. He had not declared that he was going to settle in Pakistan. Moreover, a company of which he was a director owned considerable property in Arusha, including the house of his brother Yusuf, which was rented from the company.

Held: (1) A preliminary point must first to be decided. The Commissioner-General’s argument before the Committee was based on the contention that the appellant was a “resident” under s.2 (1) (a) of the East African Income Tax (Management) Act, 1958 (as amended). On appeal, however, he stated that if the court did not accept that contention, he would further argue that the appellant was a “resident” under s. 2(1) itself, without relying on the deeming portion of the definition. Appellant argued that the Commissioner – General was stopped from advancing new grounds to support his assessment. First, one has to remember that this court is obliged, regardless of any findings of the Committee, to approach every issue of fact as res integra, and to make its own findings thereon; the burden of proof always being on the taxpayer to show that the original assessment was excessive. Having then found the facts, this court must apply the law to them, and it would appear to follow that where new facts are found, the law must be applied whether it was raised before the committee or not. It would be unsatisfactory, of course, if a party were to be taken by surprise, but that matter can be remedied by an adjournment. Although it is somewhat hazardous to rely on the position in England, as the procedures there are very different to those in this country, the Commissioners there are not precluded from allowing an appellant to take up a new ground or from taking it into consideration themselves. (See Halsbury’s

(1969) H.C.D.

- 192 –

Laws of England Vol. 20, rd Ed. at page 684 Para 1351); and on appeal to the High Court where sufficiently facts are stated in a case, the court will give effect to any point of law arising on those facts (ibid p. 695 Para 1373). Further, facts may e agreed or admitted for the purposes of an appeal, but the question what is the law applicable to the circumstances is for the tribunal, and cannot be concluded by an admission made by the Inspector before Commissioners. (ibid p. 736 Para 1481). It appears to me that I should apply similar principles and this whether or not the Commissioner-General has put forward his opinion on a matter of law to the Committee. It is still open to this court to apply the law in what appears to the court to be proper to the matter. It follows then that the Commissioner – General may raise new points and indeed, the court itself so long as the parties have a fair chance of representing their views. I think further support for this proposition may be obtained from T.M. BELL v. COMMISSIONER OF INCOME TAX (1960) E.A. 224 …… (2) “Considering first the deeming section in paragraph 1(a), it was conceded that the enactment’s requirement of the appellant’s presence in the Territories was complied with. Whether he had also complied with the other requirement, was the subject of considerable debate……. Despite the appellant’s interest in the property in Arusha, it was the company’s property and that although he might have had the benefit of any family member to occupy a part of the main building if available; he could not do so because it was occupied. His wife was obliged to be a guest in Yusuf’s rented house. I am also satisfied that the appellant was trying to secure a new opening in another country. It seems clear to me that he never intended to make Yusuf’s house his home. It was a temporary measure. I am inclined therefore to agree with Mr. Nazareth that the appellant had no home in this country. Mr. Ferro put forward a far – reaching definition of the term “home” ….. that a home is anywhere where a man’s wife and children reside, whether that place is owned, leased or provided by the husband, as in a hotel, or in which they live gratuitously with relatives or friends, whether the establishment is temporary or not, or for however long they stay there – all this, it is said, despite the fact that the husband has made his home elsewhere. I must confess that I cannot imagine what not a home is. It seems to me that too much stress is laid on the position of the group consisting of the wife and children. I have considered this matter elsewhere (See Commissioner General for Income Tax v. Nuruddin Hassanali Noorani, Misc. Civil Appeal Nos. 1,2,3,&4 of 1968), and I do not propose to analyses in detail cases such as HERBERT v. BYRNE (1964) 1 All E.R. 887; BECH v. SHOLZ 1953) K.B. 575 which were cited there. When a family is in a state of moving from one place to another, it may well have two homes. But in deciding whether a family does have two homes, I would apply the tests expressed in Noorani’s case. In my opinion a mere makeshift arrangement of a temporary nature such as appears in this case, would seem to me sufficient evidence that he did not have a home Arusha but had acquired one in Pakistan. I would rely on the Shorter Oxford dictionary definition which is: “A dwelling place house, abode; the fixed residence of a family or household, one’s own house; the dwelling in which one habitually lives or which one regards as one’s proper abode.” That definition in my view puts forward the useful idea that there must be some link such as title or long occupation by which a place can be called a home. There is no such feature in the present case which could give any colour to the occupation of Yusuf’s house by the appellant’s wife and children so as to call it the appellant’s home. If follows

(1969) H.C.D.

- 193 –

therefore that I would agree with the appellant that he did not come within the ambit of Para 1 (a) of the definition.” (3) “I turn then to consider whether the appellant was a resident. He had been resident in 1964 both at Moshi and Arusha. He was and still is the director of a company which owns property, trades here and provides him with an income. Although he left on 1^st January 1965, he revisited Arusha for three weeks In April, 1965. True he contemplated settling in Pakistan, but he did not take any clearly irrevocable step until 1966. He left in April 1965 having stated that he was going abroad for business and would return in July 1965. In these circumstances, it seems to me that it cannot be said that he had finally divested himself of residence in this country until 1966. it is agreed, I think, that a person may be resident though he has no establishment in the country of his residence when as a part of a regular habit of life he stays in hotels or with friends for various periods in a year spending the rest of the time abroad. He may also have two residences. But when a person who has been a resident and still has a place of abode available to him whom he actually visits, residence will generally be continued. (cf Halsbury p. 393, Para 718 and the cases collected there, many of which Mr. Ferro cited). It seems to me that although the appellant was not resident for very long on the mainland of Tanzania, nevertheless, his business and family interests had been established here for a considerable period. The facts of this case are not dissimilar to those in the COMMISIONER OF INCOME TAX v. P. & CO. LTD. et al No. 16 E.A.T.C. Vol. 1, page 131 where Sinclair, J. (as he then was) observed that residence was still residence although It was only occasional (p.150).” (4) Appeal dismissed.

(1969) H.C.D.

- 194 –

208. Kitwana s/o Bakari, Crim. App. 349-D-69, -/7/69, Saidi J.

The accused was convicted of stealing brase dust, valued at Shs 20/-, property of the East African Railways and Harbours. This is a scheduled offence under the Minimum Sentences Act.

Held: “When admitting the appeal for hearing, I had remarked that section 5(2) of Minimum Sentences Act was applicable in favour of the appellant, as he was a first offender and the value of the property stolen was far below Shs. 100/-. I also remarked that that part of the sentence impose the appellant had already served would meet the justice of the case, so as to make it possible for him to be released immediately, considering the fact that he is a T.B. patient. At the hearing of the appeal, I observed the appellant and came to the conclusion that any further imprisonment will jeopardize his death as he looked weak. I dismiss the appeal against conviction and reduce the sentence of nine months imprisonment imposed on him to one that will result in his immediate release.”

209. Waziri Kofia v. R., (PC) Crim. App 24-A-69 8/8/69, Platt J.

The appellant was convicted of forcible entry upon land contrary to section 85 of the Penal Code and sentenced to pay a fine of Shs. 20/- or one months imprisonment in default. On first appeal, the learned District Magistrate found that the facts were applicable to a charge of forcible detainer of land contrary to section 86 of the Penal Code and substituted a conviction for that offence. One appeal.

Held: “The question on this appeal is whether the substitution of the conviction of the conviction under section 86 of the Code was lawful. An offence under section 86 is not a minor offence to that under section 85, and the two charges are not cognate. They are in fact mutually distinct. The charge faced by the appellant did not raise issues of forcible detainer and consequently the appellant has own tried to put forward matters in his petition of a appeal defence to the new charge. The trial did not afford the appellant a chance to defend himself under section 86 of the Code. This was not one of those cases coming within Para 33 of the Primary Courts Criminal Procedure Code, (Third Schedule to the Magistrates’ Courts Act Cap. 537), where an alternative verdict is permitted. Although section 17 of cap. 537 give the District Court wide powers on appeal, the substitution of one charge raises entirely new issues. If the trial had been based on a charge of forcible detainer, but by error the wrong section had been quoted, that might have been a different matter.” Appeal allowed.

210. R. v. John Charles Haule, Crim. Sass. 54-Dodoma-69, Biron J.

The accused was convicted of bigamy c/s 164, Penal Code. The sentence is reproduced below.

Held: “Like both learned counsel in the case, this is the first prosecution for bigamy to come before me, on this, my twentieth year on the bench in this country. The offence can not therefore, be said to be prevalent calling for a deferent sentence. Further, it could be contended that there is an element of discrimination, in that only a section of population could be prosecuted for such offence of bigamy. Whilst I appreciate that women must be protected, I feel that such

CRIMINAL CASES

(1969) H.C.D.

- 195 –

protection should be available to all women and not just limited to a particular community or creed. However, the courts the courts do not make law. It is their duty to apply and enforce the law, as it is on the people to observe them. Even so, there is no call to, or justification for, making an example of the accused. Whatever punishment in imposed on him, will be borne by the two families he now has to support. Although his counsel has submitted that in his community it is customary to have several wives, the accused who is literate and intelligent, appreciates that he has broken the law and has expressed his contribution. I can only add that I hope that he will make amends to the two women he has wronged. In all the circumstances of this instant case – the first of its kind – in my experience, I consider that the justice of the case, will be met by discharging the accused – as I do under section 38 of the Penal code, conditional on his being of good behaviour for a period of twelve months.”

211. R. v. Abdallah s/o Ngwale, Crim. Case 140-Kilosa-68, Inspection Note, 30/7/69, Hamlyn J.

The accused was convicted of threatening the use of witchcraft, and was sentenced to an unspecified fine.

Noted: “Normally an offence of threatening the use of witchcraft is a serious one and may well lead to the persons threatened retaliating in a dangerous manner: such offences should be dealt with as deserving a considerable sentence of imprisonment. In the present case it is not proposed to interfere with the fine imposed by the court, but the trial magistrate should bear in mind the possible consequences of acts such as the accused was found to have committed.”

212. Shaban Ibrahim v. R. Crim. App. 338-D-69, 16/7/69, Biron Ag. C. J.

The appellant was convicted of stealing from the person and he was sentenced to imprisonment for eighteen months. Evidence was given by the complainant, a peasant, to the effect that he came into Iringa town one day with a couple of companions to do some shopping. At about non, when he and a companion were entering a tea-room in the market, two persons, one of them the appellant, who were standing near the door, one either side, jostled him, and as they were pressing against him, he felt a hand entering his pocket. When he looked down, he saw the appellant extracting his wallet. He immediately seized the appellant, who threw the wallet across to his companion, who made off with it. A crowd colleted and the appellant was taken to the police station and charged. In sentencing the appellant, the learned magistrate stated: - “Accused is a first offender. Yet pick-pocketing is on a mounting scale in Iringa. People are never safe with their money whenever they visit shops or Iringa market. Where a conviction is secured, it is considered some kind of severe punishment should be given. In my opinion, these offenders must be sent to goal for a long period – thus giving them the opportunity to learn some other job. Accused is sentenced to 18 months imprisonment.”

Held: “With respect, I fully agree with every word uttered by the learned magistrate, and would only add that this offence is not restricted to Iringa. Only a few days ago there was a similar appeal before me from a conviction by the Morogoro district Court, where the facts were very similar. This particular mode of operating by pick-pockets is not confined to this country, but follows a world-wide pattern. In this particular case, the offence is all the more reprehensible in

(1969) H.C.D.

- 196 –

having been perpetrated on an inoffensive peasant coming to town to do some shopping, only to be robbed by if I may be permitted a popular if inelegant expression, a couple of town spivs. The sentence is not a day too long and is, therefore, sustained.”

213. Pascal s/o Mtaka v. R., Crim. App. 424-D-69, 5/7/69, Hamlyn J.

The appellant was convicted of stealing from the person of another, contrary to section 265 and 269 (a) of the Penal Code, and was sentenced to twelve months imprisonment. The accused put his hand into the pocket of the complainant and withdrew a handkerchief containing 90 cents.

Held: “Insofar as sentence is concerned, while the amount stolen was only 90 cents, I do not think that that need necessarily result in a light punishment. The appellant doubtless sought to steal what luck would provide; in the present case, the complainant had only 90 cents in the pocket into which the accused plunged his hand, and it might well have been far more. The appellant has previous convictions – one of which is also for a similar offence. While the sentence of twelve months imprisonment is perhaps on the light side for an offence which it is often very difficult to bring home to the offender, the punishment is not so manifestly inadequate as to warrant interference by this Court.” Appeal dismissed.

214. Welesi Kwandai s/o Maleke v. R., Crim. Sess. 43-A-68, -/-/-, Platt J.

A quarrel broke out between two groups at a village celebration, at which there had been much drinking and spirited dancing. The deceased intervened in the quarrel, and attempted to separate the two groups. While he was doing this, the accused was alleged to have come and hit him one blow on the forehead with a moderately weighted stick. The deceased fell down, and shortly afterwards died as a result of this injury. There was no evidence of provocation, or of motive or premeditation.

Held: “I directed the assessors in conformity with the views expressed in YOWERI DAMULIRA v. R. (1956) 23 E.A.C.A. 501 where at page 502 it was observed: “When death is caused by use of a non lethal weapon and inference of malice is much leas readily drawn then when a lethal weapon is used.” Here, as in that case, the stick was not a lethal weapon being less so even than the stock in Xoweri’s case. But whereas in Yoweri’s case the accused could not know exactly where the blows were falling, here the accused could. Each case must depend upon its own merits and in my opinion a broad view of the circumstances is proper. Here there were high spirited young men dancing in groups. There had been a festivity and a good deal of drinking. There was no motive or grudge which is known to have inspired the accused to strike at the deceased. It seems to me that it was either an intemperate and irrational act due to drink and the general excitement, or an act possibly with intent to get in a blow at the deceased who was intermeddling with the group. There is no evidence that the blow was struck with great force, although there was a lacerated wound. In my view there remains a doubt whether malice aforethought had really been formed in the accused’s mind. Accused acquitted of murder and convicted of manslaughter.

215. Hassani K. Njokole v. R., Crim. App. 28-D-69, -/4/69, Saudi J.

The accused was convicted of stealing by a person employed in the public service c/s 270 and 265, Penal Code. During the trial and after the second prosecution witness had testified, the particulars of the charge were amended and the hearing was adjourned for 18 days to give the defence enough time for preparation. At the resumed hearing the 3^rd prosecution witness

(1969) H.C.D.

- 197 –

gave evidence before the amended charge was read over to the appellant and the appellant was asked if he wanted any of the earlier witnesses to be re-called for cross-examination in accordance with s. 209 of the Crim. P.C. In the original and amended charges the offence was the same, being of stealing by a person employed in public service c/s 270 and 265 of the Penal Code. The particulars in both charges differed. In the original they read: - “The person charged between the month of January, 1968 and February, 1968, at Kisarwe District Office in the District of Kisarawe Coast Region, being a person employed in the Public Service as an Administrative Officer, did steal a cheque No. 179456 for Shs. 4949/75 which came into his possession by virtue of his employment”. And in the amended charge they read:- “The person charged between the month of January, 1968 and February, 1968, at Kisarawe District Office, in the District of Kisarawe, Coast Region being a person employed in the Public Service as an Administrative Officer, did steal cash Shs. 4, 949/75 being the proceeds of cheque No. 179456, which came into his possession by virtue of his employment.” On appeal.

Held: “This issue of amendment seemed to me to be serious at first since bib-compliance with the provisions of S. 209 of the Crim. P.C. would have rendered the trial a nullity on the ground that no plea to the charge had been taken (Akbaralli Walimohamedi Dawji v. Regina, 11 T.L.R. 137). Furthermore non-recall of witnesses already examined for cross-examination on the application of the accused could also nullify the trial. Closer examination of the facts of the case leads me to the conclusion that there was no amendment in the true meaning of the term……. In the original charge the allegation was that the appellant had stolen a cheque for Shs. 4,949/75 which came into his possession by virtue of his employment. In the amended charge the allegation was that the appellant had stolen Shs. 4,949/75 being the proceeds of a cheque which came into his possession by virtue of his employment. The cheque number is the same and so is the date of theft in both charges. The definition of “money” in s. 5 of our Penal code includes, amongst other things, “cheques”. This therefore means that theft of a cheque (which is ultimately cashed) implies the theft of the sum shown on such a cheque. It was so held by the court of Appeal in Menzour Ahmed s/o Sheikh Soleh Mohamed v. R. (1957) E.A. 386, while construing the proper meaning of “money in s. 5 of the Kenya Penal Code which is exactly similar to s. 5 of Tanzania Penal Code. It is therefore clear that the purported amendment was unnecessary as it mean nothing in fact so that non-compliance with s. 209 Crim. P. C. is of no effect.” Appeal dismissed.

216. James s/o Selemani v. R., Crim. App. 97-D-1969, 12/7/69, Duff J.

The accused was convicted of attempting to break into a building c/s 297 and 381 of the Penal Code and was sentenced to two years’ imprisonment, he being said to have twelve previous and presumably relevant convictions. The charge actually preferred was one of breaking into a building c/s 297 of the Code, the learned magistrate holding that only an attempt had been established. Two persons were apprehended while trying to force out or open a post office stamp – vending machine which was inserted in the wall and which was afterwards found to be badly damaged. The accused before being caught threw away a tyre lever while an iron block or bar was discarded by either him or his companion.

Held: “From the evidence of the post office official (P.W. 2) it appears that the accused and his companion were trying to pull out the vending machine or break it open so that they could steal the money or stamps or both. Can it be concluded from this that there was an intention to break into or enter the building? Can it be said that there was a breaking or an attempted breaking of the building? The only case I could find which appeared to be

(1969) H.C.D.

- 198 –

relevant is that of R. v. Paine and Cooper which is referred to in the 35^th edition of Archbold in paragraph 1802. In that case a shutter-box projected from a house, and adjoining one side of a shop –window, which side was protected by wooden paneling, line and with iron; a breaking and entering of the shutter-box was held not to constitute burglary. Applying that decision to the present case I do not think that the interference with the stamp vending machine did amount to an attempted breaking as found by the learned magistrate and the conviction entered by him cannot be sustained.” (2) “There is, however, clear evidence, which was accepted in the lower court, which established that the accused and his companion were in possession of house-breaking instruments, an offence c/s 298 (c) of the Penal Code being involved. Having regard to the judgment in R. v. Patterson (1962) 2 Q. B 429 it is not necessary that the prosecution must establish that an accused person intended to use the instrument for house-breaking. All the prosecution has to prove is that an accused was found in possession by night of a house-breaking instrument or of an implement capable in fact of being used as a house-breaking implement, the burden then shifting to the defence to prove, on the balance of probabilities, that there was lawful excuse for the possession of the instruments at the time and place in question. Bearing in mind these principles I propose to invoke Section 186 of the Criminal Procedure Code and the accused is now convicted of an offence contrary to section 298 (c) of the Penal Code, the conviction of attempted breaking c/s 297 and 381 of the Code being set aside.” Appeal dismissed.

217. R. v. Pancililo s/o Hassani, Crim. Rev. 23-D-1969, 18/3/69, Georges C. J.

The accused appeared to answer eight charges for offences under the Penal Code – three of housebreaking, c/s 294(1), with three related charges of stealing, c/s 265; and two charges of assault occasioning actual bodily harm, c/s 228(1). He was a deaf-mute, and it was not possible to communicate with him in any way. As a result, he could not plead.

Held: (1) “This was clearly a case falling under section 169 of the Criminal Procedure Code, and the magistrate quite properly proceeded to hear the evidence tendered by the prosecution in answer to the charge. The accused took no part in the proceedings. At the close of the case for the prosecution, the magistrate stated that he had closely examined the case for the prosecution and was satisfied that there was a prima facie case established against the accused. He ordered that the accused person be detained during the President’s pleasure and that a copy of the proceedings be sent to the director of criminal Investigations. The detention should not be at the President’s pleasure. The accused should be detained at the pleasure of the person for the time being administering the Department of justice. (2) “It agree with the Director of Public Prosecutions that the magistrate applied the wrong test at the close of the prosecution’s case. The test is not whether a prima facie case has been made out, but whether the “court is of opinion that the evidence which it has heard would justify a conviction”. The two tests are different. At the close of the prosecution’s case, a magistrate may well hold that a prima facie case had been made out, and yet even if the defendant keeps quiet, he may in the end dismiss the charge because there is reasonable doubt.”

218. Ibrahim Ramadhani v. R., Crim. App. 159-M-1969, 28/4/69, Seaton J.

The appellant was convicted on four counts: one of burglary c/s 294 (1) of the Penal Code, two of theft c/s 265 of the Penal Code and the fourth one of unlawful possession of a firearm c/ss 13(1) and 31 of the Arms and Ammunition Ordinance, Cap. 223. The court found that on the night of the 18^th November, 1968, the house of

(1969) H.C.D

- 199 –

the complainant was broken into. A quantity of his clothing was stolen and also a gun and ammunition, the property of P.W. 4 a guest of the complainant. On 30^th December, 1968, the appellant went to the house of his friend Hamisi with his gun and some other luggage and asked for a place to stay. Hamisi accommodated his but about a week later the accused came home one night drunk. He abused Hamisi and threatened him with a gun whereupon Hamisi reported the matter to the call leader. The appellant was arrested and the following day was taken to the police station together with the gun. The appellant had no permit or licence for possession of the gun hence his conviction on the 4^th count of unlawful possession of a firearm was abundantly justified. The gun was identified by the complainant’s guest by its make and number. The appellant swore in his defence that the gun was not in his possession but in Hamisi’s, who threatened him with it on the night, in question because he suspected him of seducing his wife.

Held: “The learned magistrate considered carefully the evidence in this case and disbelieved the appellant. He was of the view that as a gun cannot be a thing which can pass quickly, from one hand to another, it having been found in the appellant’s possession 43 days after the time it was stolen from the house of the complainant entitled him to infer that the appellant was guilty of the burglary and thefts as charged in the first three counts. Learned State Attornery in supporting the conviction on these counts, has referred to the case of Rex v. Bakari Abdalla (1949) 16 E. A. 84. In that case Court of Appeal noted that possession by an accused person of property proved to have been very recently stolen has been held not only to support a presumption of burglary or of breaking and entry but of murder as well, and if all the circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however penal. I am of the view that in the present case the learned magistrate could have found the appellant guilty of ether being the burglar and chief or the guilty receiver. He carefully considered these possibilities and I think, in view of the numerous formalities before a gun can be obtained or transferred from hand to hand, the learned magistrate was entitled to infer from the possession 43 days after theft of the gun that its possessor to be the burglar and thief. The conviction was amply justified by the evidence.” (2) “Appeal dismissed. Sentence for burglary confirmed. Appellant Ordered to pay Shs. 272/- compensation to complainant for unrecovered clothing.”

219. Selestian Magalama v. R., Crim. App. 286-M-1969, 3/7/69, Bramble J.

The appellant in this case was an Internal Revenue Officer who had a duty to keep the keys for the strong room according to regulations. He left the keys a Police Station and there was a theft of public funds – Shs. 1,290/-. For his negligence in not keeping the keys himself he was surcharged by the Treasury, and also charged in court under section 121 of the Penal Code which reads as follows:- “Every person employed in the public service who willfully neglects to perform any duty which he is bound either by common law or by statue or Ordinance to perform, provided that the discharge of such duty is not attended with greater danger than a man of ordinary courage and activity might be expected to encounter is guilty of a misdemeanor.”

Held: (1) “The essence of the charge is ‘willful neglect’ to perform a statutory duty and not merely negligence in performing it. The appellant here was negligent in that in

(1969) H.C.D.

- 200 –

leaving the key at the Police Station he did not entrust it to a Police Officer. There was no willful neglect to perform a statutory duty and the correct punishment of negligence was surcharging the appellant which was done.” (2) “From the record it would appear that the appellant make an unequivocal plea of guilty but it is clear that although admitting the facts he did not know the difference between the surcharge and the criminal charge nor is there any indication that the learned magistrate explained it to him. The appellant was asked “have you now understood the charge” after reading the notice of the surcharge and he said – “I do understand the charge. My plea is as before. I plead guilty to the charge and I say that the facts are correct as outlined by the prosecution.” Since the facts as outlined by the prosecution did not disclose the offence charged it was the duty of the learned magistrate to enter a plea of “not guilty” and he should have been put on his guard by the appellant’s not understanding the charge. In spite of his positive answers the appellant’s plea was not unequivocal in that the charge was not explained to him by the court when he did not understand it.” Appeal allowed.

220. R. v. Makeja s/o Mashauri Crim. Sess. 39-M-69, 12/6/69, Seaton J.

The accused was charged with unlawfully causing the death of one Kunyali s/o Minunga c/s 195 of the Penal Code. The accused and deceased were both young boys of the Sukuma tribe aged 11 and 0 respectively at the time of the incident out of which the charge arose. Coming upon a group of boys the accused joined them in a game popular in that village in which the combatants try to strike one another with sticks and to defend each other against being struck, as an exercise in learning self-defence. The deceased struck the accused on the hand, then again on the ribs whereupon the accused apparently angered, retaliated by striking the deceased on the head. The deceased fell down and a little later got up a walked home but died soon thereafter due to subdural hameorrhage resulting from fractured skull.

Held: (1) “As the accused is under the age of 12 years and was so found to be by this Court, it was necessary for the prosecution to prove not only that he had committed an unlawful act but, according to the provisions of s. 15 of the Penal Code, at the time he had capacity to know that he ought not to do the unlawful act. The prosecution attempted to prove this by submitting that the game itself was unlawful and that, even if it were not unlawful, it became so when the accused became angry and retaliated by striking the deceased in anger upon a part of his body which he knew to be vulnerable such as the head. The evidence as to the unlawfulness of the game consisted in that of shiremba Mashauri, a boy of about 12 or 13 years of age ……. To the effect that his father told him that this game was not good and that he was afraid of playing it. As against this, there was his own testimony and that of Kola, a boy of 17 years of age that the game is very common in the village and most boys and girls play it.” (2) “I had summed up to the assessors that if they found that the game was unlawful or that the accused had in anger struck the deceased a violent blow upon a vulnerable part of his body knowing that it was a wrong thing to do, then even thought he might not have intended to cause grievous harm to the deceased, he would be guilty of manslaughter. On the other hand, I advised the assessors that if they were of the view that the game was not unlawful and was being played by the accused and the

(1969) H.C.D.

- 201 –

deceased according to its normal rules but that because of the deceased’ inability to defend himself, the blow fell on his head whereby it was fractured and eventually caused his death, and if they were of the view that the blow was accidentally struck or struck by bad luck, then they should acquit the accused of manslaughter.” (3) “The assessors had heard the evidence of the two boys, Kola and Shiremba, and of the deceased’s mother Pinga, who accompanied the deceased to the dispensary and to the hospital after he had come him injured. They had heard also the doctor’s evidence as to the injury sustained by the deceased and the accused’s statutory statement which he adopted and confirmed at his trial. In this statement the accused admitted striking the deceased but explained it was through bad luck while they were playing. Considering all of the evidence, the assessors were unanimously of the view that the game was not unlawful, that it had been played by boys in Sukuma land from the time of their ancestors and that the elders are pleased to see young boys participating in this game because it gives them dexterity in the art of self-defence. They advised that the deceased had suffered the injury through pure bad luck in this game and that his killing was not the result of any unlawful act.” (4)”I see no reason to differ from the views of the assessors which are based on the evidence heard in this Court and on their knowledge of the Sukuma custom, both of them being Sukuma elders. Accordingly find the accused not guilty of the offence of manslaughter and acquit him of the charge.”

221. Victor Juma Shaaban v. R., Crim. Rev. 68-D-69, 14/7/69, Biron Ag. C. J.

The accused was charged with stealing about 10.558/-. When he first appeared in court, he admitted stealing about 7,000/-. This was entered as a plea of “not guilty” and the hearing was adjourned to another date. Then followed numerous and long adjournments to enable the prosecution to prepare its case and gather enough evidence. Finally, the prosecutor asked for the case to be withdrawn under section 86 or the Criminal Procedure Code, which section reads: “86. In any trial before a subordinate court any public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person; and upon such withdrawal – if it is made before the accused is called upon to make his defence, he shall be discharged, but such discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts”. The accused’s counsel objected to this application, and submitted that the cause should proceed or that the charge be dismissed under section 205 of the Criminal Procedure Code, which reads: “205. if at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the charge and acquit the accused person.” The magistrate upheld the application made on the accused’s behalf and acquitted the accused under section 205 of the Code. The magistrate who purported to acquit the accused was not the same one before whom the accused had originally pleaded. On his discovering that the accused had his plea originally admitted to stealing Shs. 7,000/, he referred the matter to the High Court for necessary action and guidance.

(1969) H.C.D.

- 202 –

Held: (1) “As is abundantly clear from the section, on such an application by the prosecution, all the court can do is to discharge the accused, and such discharge does not operate as a bar to subsequent proceedings on the same facts. It is thus abundantly clear that the court had no power to acquit the accused on an application made under section 86 on the Criminal Procedure Code.” (2) “It is clear from the wording [of s. 205] that the court can only acquit an accused if at the close of the evidence in support of the charge no case appears to be made out against him. In this case, no evidence at all was adduced, let alone was it closed, but an application was made for discharge under section 86 of the Criminal Procedure Code. The purported acquittal under section 205 of the Criminal Procedure Code was, therefore, ultra vires.” (3) Acquittal set aside, and the accused still remains charged with stealing the property, as laid down in the charge-sheet.

222. Marcel Mpembee v. R., (PC) Crim. App. 30-D-69, 9/5/69, Hamlyn J.

The accused was convicted in the Primary Court of cattle-stealing, from which he appealed to the District Court, which dismissed the appeal. Thereupon, he appealed to the High Court. From the start of the case, the appellant had contended that the cattle which he was alleged to have stolen belonged to or at least partly belonged to him. He maintained this claim throughout the proceedings from the Primary Court upwards. The lower courts found that the cow did not belong to the appellant, and convicted him of cattle-stealing.

Held: “With respect, I think that the District Magistrate has failed to appreciate what the law is in regard to theft. If he had read through second 258(1) of the Penal Code he would have seen that one of the ingredients of this offence is that the object taken must be taken “fraudulently and without claim of right.” Section 1 of the English Larceny Act, 1916 embodies this phrase but makes it even clearer by stating that the taking must be “fraudulently and without a claim of right made in good faith.” The two courts below have found that the cow did not belong to the appellant. But they stopped there and failed to consider whether, despite this, the accused man himself maintained genuinely (though perhaps erroneously) that the cow belonged to him and that he had a real and honest claim to it. A person has a claim of right where he honestly asserts what he believes to be a lawful claim, even though it may be unfounded in law or fact. From the record it is clear that right from the start of the proceedings, the appellant has asserted this claim in no uncertain language …… it would be quite unjust to dismiss this appeal in view of the fact that neither of the courts below has seen fit to consider what was in the accused’s mind at the material time. A mere finding of fact as to ownership in cases of this nature is only a part of the answer to the question, “Did he steal the cow?” that he may have taken it is one thing, but the prosecution have further to show that the taking was done without that claim of right made in good faith which, if present, absolves on accused. It matters not whether that claim is right or wrong; it matters not whether, in the eyes of the court, the claim may amount even to a fantasy. If the accused at the time of the taking thought genuinely that he was taking his own property, then however incorrect his claim might be, whatever the unreasonableness of his arguments, he cannot be convicted of theft.” Appeal allowed.

(1969) H.C.D.

- 203 –

223. Muna Siasi v. R., Crim. App. 47-A-69, 28/6/69, Platt j.

The appellant was convicted of unlawful wounding and sentenced to 12 months’ imprisonment. Although he was said to have pleaded guilty, he appeals against conviction because his plea did not amount to a confession. He says that he speared the victim accidentally.

Held: “The plea as recorded was “It is true I wounded him with a spear below the shoulder.” The facts accepted by appellant included a statement by the Prosecutor that when asked the appellant said that he had thought he was spearing an animal. It was dark at the time and the appellant was going him with his brother. The victim was supposed to be crossing a river. It is not clear form the facts whether the appellant could have reasonably thought the victim was an animal or not. Certainly there is nothing said that he must have known the victim. The issue of accident therefore was not settled and consequently, it cannot be said that the plea was unequivocal, especially as the appellant admitted no more that the actual act of wounding. He never agreed he had done so “unlawfully”. Conviction set aside and re-trial ordered.

224. Wandwi s/o Muhagachi, Crim. App. 103-M-69, 14/4/69, Mustafa J.

Complainant lost nineteen head of cattle; and two years later discovered one animal in the possession of the appellant. He and other witnesses identified the animal as his to the satisfaction of the trial court. The trial magistrate invoked the doctrine of ‘recent possession’, and convicted the appellant of cattle theft thereunder. On appeal.

Held: “I do not quite understand what the trial magistrate meant by saying that two years is not too long a period for him to invoke the doctrine of recent possession because one experienced with cattle can identify them by “his own marks”. It may be that one could identify one’s own animal after two years but that does not necessarily mean that a two year period is not too long for the doctrine of recent possession to be invoked. Complainant lost 19 head of cattle and two years later he found one of his lost animals in the possession of appellant. This animal could have passes through a number of hands in the meantime and appellant could have obtained this animal innocently. I am not at all satisfied that the trial magistrate was right to invoke the doctrine of recent possession after a period of two years. In my view the appellant should not have been asked for an explanation because he has no presumption to rebut.” Conviction quashed.

225. Paskari Joseph v. R., Crim. App. 582-M-68, 30/10/68, Bramble J.

The appellant was convicted of attempted rape c/s 132 and 381 of the Penal Code and was sentenced to 18 months imprisonment. He has appealed on the ground that the decision is unreasonable having regard to the evidence.

Held: “The only question for consideration is whether the facts proved constitute an attempt to rape. They were that the appellant pushed the complainant and she fell on the grass near the path; he held her right hand and pulled her two Khangas and she was only left wearing her kitenge; he tried to pull out

(1969) H.C.D.

- 204 –

her kitenge and in doing so pulled her legs apart; he then stood up an started to unbutton his trousers when the complainant escape and raised an alarm; she thought he wanted to kill her and she was resisting. These facts are not too dissimilar from the case of Adm. Mulera v. Regina (XX E.A.C.A. 223) quoted in the judgment and I hold that they should be considered as a mere preparation and cannot support a conviction for attempted rape. In the result I substitute a conviction for indecent assault leaving the term of imprisonment as eighteen moths.”

226. Abasi s/o Ramadhani v. R. Crim. App. 414-D-69, 20/8/69, Biron J.

The appellant was convicted of rape and he was sentenced to imprisonment for two years and to twelve strokes corporal punishment, it was established in evidence that one morning a party composed of three women, one of them the complainant, and two men, one of them the appellant, went into a sisal plantation to cut firewood. They separated and apparently lost sight of one another. The complainant testified that whilst she was cutting firewood out of sight of the others, the appellant approached, caught hold of her and demanded sexual intercourse. She declined, and he threatened to slash her with the panga he was carrying. She was at the time carrying a child on her back; the appellant took the child from her, placed it on the ground, then after removing his trousers, he pushed her to the ground and had intercourse with her. She was afraid to cry out because of having been threatened with the panga, and the appellant also apparently covered her mouth. After he had raped her the appellant made off and disappeared. The complainant immediately ran to her companions and reported that the appellant had raped her. Her women companions confirmed that the complainant reported that the appellant had raped her, and one of them noticed what she described as seminal fluid on the complainant’s clothes. Both the appellant and the complainant were medically examined that same day, and the medical evidence is to the effect that both had engaged in sexual intercourse within hours of their having been examined and further, that the complainant had bruises on her things and there was clotted blood from her vagina. The ten-house-cell leader was summoned and he wrote a letter addressed to the police reporting the incident. The appellant, who had by then been apprehended, tore up this letter.”

Held: (1) “At the hearing of this appeal, on my remarking that there did not appear to be any real corroboration as such of the complainant’s evidence to connect the appellant with the offence, learned State Attorney referred to the case of Yotamu Mtweve and two others. v. the Republic (Criminal Appeals Nos. 366 to 368 of 1969), where in last month I upheld a conviction on three men for rape in the absence of any corroboration. That case, however, can be distinguished from this instant one in that there, in his judgment, the magistrate fully directed himself on the need for corroboration an on the danger of convicting without corroboration, but nevertheless, as he was so convinced that the complainant was telling the truth, and being perfectly satisfied with her evidence, he found the case against the appellants fully established and accordingly convicted them in the absence of corroboration. As I noted in the judgment in that case, apart from the fact that the learned magistrate fully directed himself on the need for corroboration and found that he could rely on the evidence of the complainant even in the absence of corroboration there was also considerable supporting evidence which, although it

(1969) H.C.D.

- 205 –

did not constitute corroboration as such, was strongly confirmatory of the complainant’s evidence. In this instant case, however, the magistrate has not directed himself on the need for corroboration, nor has he even adverted to such need. The word does not even appear in his judgment.” (2) “As I remarked in the case cited, it is rarely that a court will convict of a sexual offence in the absence of corroboration, and even rarer still that an appellate tribunal will uphold such conviction. The requirement of corroboration in sexual offences is a rule of practice and, although it has been elevated, particularly in this part of the world, to almost, if not altogether, a rule of law, the fact remains that it is a rule of practice and corroboration is not in law mandatory, nor is its absence fatal to a conviction. But there must be a very strong case to justify a conviction in the absence of corroboration. It is therefore necessary to examine the evidence in this case very carefully, firstly in order to determine whether there is corroboration, and secondly even if there is no corroboration, whether the conviction can nonetheless be sustained.” (3) After reviewing the facts, the Court continued: “The evidence establishes that the complainant and the appellant went out together in a party, and that whilst cutting firewood the individual members were out of sight of one another. The medical evidence establishes that both had had sexual intercourse at about such time. The police evidence would also confirm that the scene pointed out by the complainant appeared to bear out that an incident of the nature described by the complainant had taken place there. And the medical evidence as to the injuries on the complainant would appear to negative consent. As noted, the party set out together with the object of cutting firewood, and it would appear from the evidence that it was expected that, their mission accomplished, they would return together. Yet the appellant had disappeared when the complainant made her complaint, which disappearance is not, I think, without significance. It may well be argued that even if some of these factors in isolation do not constitute corroboration, the combination of them all does constitute sufficient corroboration of the complainant’s evidence to connect the appellant with the offence. With regard to the appellant’s tearing up of the letter reporting the incident to the police, not much significance can be attached to that, as it is equally as consistent with the appellant’s having been annoyed at an unfounded accusation being made against him, as with a true one.” (4) “On the assumption that the attendant factors even in combination do not constitute corroboration in law, I propose to consider whether the conviction could be upheld even in the absence of corroboration. It cannot be gainsaid that the requirement of corroboration. It cannot be gainsaid that the requirement of corroboration in sexual offense is a very salutary rule, founded on good reason and, I may add, knowledge of human nature. It is by no means unknown for women to make false accusations of sexual assault even where there has been no assault at all. Even where a woman has actually been raped, there is always the danger of mistaken identity as to the ravisher. Further, even where the woman has identity as to the ravisher. Further, even where the woman has consented to sexual intercourse she may afterwards, for a variety of reasons, not, I think, necessary to elaborate, deny consent and accuse her partner in the act, of rape. In this instant case the evidence establishes that both the complainant and the appellant had recently engaged in sexual intercourse. There is no possibility of mistaken identity as the parties knew each other well and, as noted, had gone out together to cut firewood. The complainant made immediate complaint of having been raped, and named the appellant as her ravisher.

(1969) H.C.D.

- 206 –

It is not immaterial to note that evidence of immediate complaint has been held, though wrongly so, to constitute corroboration. There would also appear to be no question of consent, as apart from the fact that it has not been set up as a defence – and I pause to remark that it is not the duty of this Court to conjure up defences where none has been raised – the evidence of injuries on the complaint could, if not would negative consent. Although, as remarked, his tearing up of the letter reporting the matter to the police is not of particular significance, the appellant’s disappearance, which did not pass unremarked by the witnesses, is not, I think, entirely without significance ……. Had the complainant resisted the appellant and been assaulted by him, nor court, I think, would have interfered with the appellant’s having been convicted of such assault. The question poses itself, why should this court now interfere with this instant conviction for a sexual offence because of the absence of corroboration when, as, I think, sufficiently demonstrated, all the factors which render it dangerous to convict on a sexual charge as opposed to an ordinary charge of physical assault, without corroboration, are absent in this case. As for the fact that the magistrate has not directed himself on the need for corroboration, that in itself should not necessarily be fatal to the conviction provided it is otherwise sustainable, as there is no magic in words, let alone in the omission to utter the prescribed formula. Though it cannot be overstressed that magistrates should always consider the question of corroboration and warn themselves of the danger of convicting in the absence of corroboration, in the particular circumstances of this case, for the reasons I have attempted to set out, I am not persuaded that this court would be justified in interfering with the conviction.” Appeal dismissed.

227. Sylvester R. Machusi v. R., Crim. App. 455-D-69, 10/9/69, Georges C. J.

The appellant was convicted of stealing by servant c/ss 265 and 271, Penal Code. It was alleged that, while employed as Acting Senior Accountant by the East African Cargo Handling Services Ltd., he stole Shs. 867/50, the property of his employer. He was sentenced to 2 years imprisonment with 24 strokes, the magistrate considering that the offence fell under the Minimum Sentences Act.

Held: “I am of the view …… that the learned District Magistrate erred when he held that the offence fell under the schedule of the Minimum Sentences Act. There is no evidence that the property of the East African Cargo Handling Services Ltd. is the property of the Government of Tanzania, or for that matter of the East African Community. The company appears to be handling agents for the East African Harbours Corporation and nothing more. I have perused the Community Legislation setting up the Harbours Corporation and the Railways Corporation and they contain no mention of the East African Cargo Handling Services. An employee of this organization does not fall under the definition of person employed by the public service. The offence, therefore, does not fall under any of the heads set out in the schedule to the Minimum Sentences Act. The sentence of 2 years imprisonment and 24 strokes corporal punishment is, therefore, quashed. It is clear that the District Magistrate would have taken a sympathetic view of the offence had be not felt himself bound to impose the minimum sentence in this case. Accordingly I shall vary the sentence to one of 6 months imprisonment. The order for compensation favour of East African Cargo handling Services is affirmed.”

(1969) H.C.D.

- 207 –

CRIMINAL CASE

228. R. v. E.D.U. Sawe, Crim. App. 332-M-69, 4/7/69, Seaton J.

The accused /respondent was convicted of causing death by reckless driving c/s 44A. (1), Traffic Ordinance, Cap. 168. He was fined Shs. 500/-, nor order for disqualification from driving was made. The facts are that the accused, while driving along a street overgrown with huge mango trees, drove clear off the road on to the pedestrians’ path and ran into three school children causing death to one and injuries to two. An earlier appeal concerning this case is reported as R. v. E.D.U. Sawe, (1969) H.C.D. n. 180. This is an appeal by the Republic against sentence alone, on the grounds of inadequacy.

Held: (1) “If the learned magistrate was convinced, as he appears to have been, that the respondent should not be sentenced to imprisonment, nevertheless bearing in mind the gravity of the offence he should have imposed a substantial fine. In the circumstances of this case …. A fine of Shs. 500/- is manifestly inadequate.” (2) “As to the failure to impose an order for disqualification, the learned magistrate seems to have been of the opinion that the condition of the road and the time of the offence were special reasons for not ordering a disqualification, special reasons to the offence. The condition of the road was that there were huge mango trees by the side of the road and the time of the offence was 6 P.M it was borne in mind in convicting the respondent that there were huge mango trees beside the road. Nevertheless it was found that despite these mago trees the respondent had been guilty of causing death by dangerous driving and the time of the offence was also borne in mind, it evidently having been thought that three was ample light for the respondent, had be been driving properly and keeping a look out as he should have been, to have avoided causing the death of the deceased. I cannot find that the facts of huge mango trees being on the side of the road and the time being 6 P.M. were special reasons for not imposing a disqualification.” (3) Sentence set aside. Fine of Shs. 2,000/- or six moths imprisonment substituted. Accused disqualified from holding a driver’s licence for twelve months.

229. Athumani s/o Pembe v. R., Crim. App. 408-D-69, 4/8/69, Hamlyn J.

The accused was convicted of causing death by dangerous driving, contrary to section 44(1) (a) of the Traffic Ordinance. The trial court passed a sentence of eighteen months imprisonment and in addition disqualified the accused from holding a licence for a period of three years. The facts show that the appellant was driving a motor vehicle and attempted to pass a bus by overtaking it, in the face of on-coming traffic – in this instance, another bus coming from the opposite direction. Being unable to get through the ever-narrowing gap, the appellant drove on to the sidewalk, which was being used by a considerable number of people at the time. And struck a pedestrian, inflicting injuries from which he died. Appeal from sentence.

(1969) H.C.D.

- 208 -

Held: (1) “The learned trial magistrate has, in my view properly assessed sentence of imprisonment in the case ……..” (2) As regards the disqualification order, the appellant states that he has been driving motor vehicles for a period of some thirteen years and has never committed any offence heretofore; he also pleads that he is a professional driver with numerous people to support and that both he and his dependents will suffer as a result of the order. “While I have some sympathy for the appellant in view of his occupation as a driver, I cannot find that the learned Resident Magistrate has acted in any way oppressively in assessing the period of disqualification, despite the fact that it will bear hardly upon others. the offence is serious one and the facts of this particular case (to which the appellant has agreed) show that it was flagrant and of a most dangerous nature.” (3) Appeal dismissed.

230. Rashidi Saidi v. R., Crim. App. 272-M-69, 30/7/69, Bramble J.

The appellant was convicted of indecent Assault c/s 135 of the Penal Code and sentenced to 12 months imprisonment. The evidence of the complainant was that the appellant told her that he was in love with her; he carried her in his house and put her on his bed but she refused to sleep with him so he went and stood near the door. She pushed him, he fell down and she ran away. She was supported by one witness. The appellant said that he was drunk that evening when the complainant and the witness came to his house and sat on his bed. When they were about to leave he asked them to spend the night.

Held: (1) “The evidence does not support the conviction for indecent assault. Apart from putting the complainant on his bed he did nothing else. There was, however, an assault and I substitute a conviction of Common Assault c/s 240 of the Penal Code.” (2) Having regard to the evidence and the fact that the appellant is a first offender I vary the sentence to such terms as will ensure his immediate release.” (3) Appeal allowed in part.

231. Eliakim s/o Nicholaus v. R., Crim. App. 116-A-69, 9/8/69, Platt J.

The appellant was convicted of rape of 14 years old girl and sentenced to three years imprisonment together with 18 strokes of corporal punishment. It appears that he used a knife to subdue the girl.

Held: “It has been observed that in cases of this nature where a young man of previous good character is involved, that long term of imprisonment together with corporal punishment is only justified in the more extreme instances of the offence. Generally speaking, where corporal punishment is awarded in an attempt to give the offender the sharp lesson, as well as provide some deterrent, it is reasonable for the length of the term of imprisonment to be somewhat reduced. I would agree that where a knife is used to subdue a very young girl, that corporal punishment may properly be awarded. But having in mind the age and the antecedent of the appellant, a sentence of two years’ imprisonment would be sufficient to meet the merits of this case. Accordingly while the order for corporal punishment is confirmed, the sentence is reduced to one of two years’ imprisonment.”

232. Mkoya s/o Shabani v. R., Inspection note, Crim. Case 92-Iramba-69, 8/8/69,Biron J.

The accused, a juvenile of thirteen years, was convicted of malicious damage to property, and he was sentenced to ten

(1969) H.C.D.

- 209 –

strokes corporal punishment. The accused, however, has been found unfit for corporal punishment, the prison authorities writing to this Court stating that “The Medical Officer has found the accused unfit to receive the strokes – due to his age and buttocks being too delicate. Kindly arrange to revise the sentence therefore.”

Held: “Although it is a salutary practice before awarding corporal punishment on a convicted accused, to have the accused medically examined as to whether he is fit to receive such punishment, an award of corporal punishment by – court is always subject to the condition precedent that the awardee is fit to receive such punishment. If the accused is found unfit to receive corporal punishment, then the award automatically lapses and no further action is required.”

233. R. v. Madirisha s/o Kitikiti, Crim. Sass. 163-Iringa-68, 23/2/69, Duff J.

The deceased Ephraim s/o Robert, was a young man who lived with his uncle Amani s/o Salim, at Nyamahove Village in Nyombe District. Early in the morning on 28 January 1968 he left home to go to church. He never returned. On the following day, the deceased’s uncle, Amrani, set out to look for him. His search took him to Makoga, from whence he was led by the village executive officer to the village of Iholo. There they met the second accused, Besen, who admitted that a boy had been tied and taken to the home of the third accused, Mwakilima. When Mwakilima was questioned by the village executive officer, he admitted that he and the two other accused had killed the boy. Mwakilima and Besen then led the officer to the ravine where the body had been thrown. The court found that the death had occurred in the following way. The first accused, Madirisha, encountered the deceased, and noting him to be a stranger, offered him food and drink. Ephraim, however, would not or could not reply, where-upon Madirisha seized him and tied him up, suspecting him to be a hooligan (“mhuni”). He took him to the third accused, Mwakilima, who was also of the opinion that Ephraim was a hooligan and should be bound. Later, after Ephraim had been beaten, it was decided to main him. Besen and Mwakilima held him down on the ground, while Madirisha pricked his eyes with a pin. Mwakilima claimed that he suggested only one eye should be pricked, but Madirisha insisted that both be pricked “so that he would be blind and be obliged to live as a beggar”. It appears that Ephraim’s ears were also damaged at this time. The three accused then left Ephraim at the scene of the maiming. The following morning, Mwakilima returned to the scene and found Ephraim apparently dead. Returning again that afternoon, he found Ephraim standing up, which fact he reported to the other two. The following day, he again went back and found Ephraim finally dead, or so he thought. He then disposed of the “body” by throwing it into a ravine. Medical evidence established that death occurred, not as a result of the blinding or the damage to the ears but following a skull fracture which must have been sustained when the deceased, apparently dead, was thrown into the ravine. The three accused were charged with murder.

Held: (1) A preliminary question arose as to the admissibility of the admission made by the third accused, Mwakilima, to the village executive officer, to the effect that he and the others had killed Ephraim. After some indecision, the court finally held: “Having regard to the ruling of Biron J., in Athumani s/o Kasim v. R. [1968 H.C.D. n. 143], it would appear that my misgivings on this point were ill founded, the learned Judge holding in that case that a confession to a divisional executive officer was admissible having regard to

(1969) H.C.D

- 210 –

the provisions of Section 29 of the Evidence Act, 1967. I deliberately refrained from referring to the admission to the village executive officer in my summing-up to the Assessors but I think it proper to mention it now to indicate the readiness and willingness of all accused to confess to the parts they had played in their dastardly venture. This desire to confess may also be gleaned from the pleas of the accused when the information was read over to them by the Chief Justice on the 28^th October, 1968, the same attitude being adopted by them when pleading before this Court on the 19^th February, 1969. whether regard can be had to what an accused person says in answer to a charge has at times, being doubted but recently Biron J., in Issa s/o Mohamed v. R. Criminal Appeal No. 108 (P.C.) of 1968 (unreported) was of the view that what was stated in a plea could be taken into consideration and I believe the decision in R. v. Hazeline 1967 2Q. B. 857 would appear to lend force to the opinion of Biron J., with whose view I respectfully agree.” (2) “The picture therefore that emerges …….. indicates that after the three accused had inflicted the injuries to the eyes and ears of the deceased. …… only the third accused participated in what followed, the deceased dying tin the ravine in consequence of head injuries he sustained when discarded there. The first an second accused were not a party to the fatal injury and it cannot be said that the original wounds at the time to death were still an operating and substantial cause of death. If the original wounding was merely the setting in which another cause operated, and I accept that this was the situation death would not be said to result from the wounding (Vide R. v. Smith 43 Cr. App. R. 121) There is no doubt that these two accused intended to main the deceased and did in fact main him, this being an offence c/s 222(1) of the Penal Code ……. This offence ……. Has been amply established and having regard to the provisions of Section 181 of the Criminal Procedure Code I think it proper to conviction them of this offence and I do so accordingly. (R. v. Muhoja s/o Manyenye, 9E.A.C.A. 70. is relevant on this aspect of the case). (3) “The third accused was the only one who displayed an interest in what was happening to the stranger after he had been maimed. His first belief that death had occurred was shattered on his next visit to the scene when he found the victim standing. His final visit led him to believe that death had finally come, he then endeavoring to conceal the body by throwing it into the pit. Notwithstanding that he believed Ephraim to be dead when he disposed of the body the accused’s behaviour cannot be considered save as a series of acts designed to cause death or grievous bodily harm and it is impossible in his case, to divide up what was really one transaction. In this view I am strengthened by the decisions in R. v. Church 49 Criminal Appeal R. 206 and Thabo Meli & Other v. R. 1954 I. A. E.R 373.” Accused convicted of murder. (4) “Sentence: I have had the accused examined as to their ages by a medical officer, the first accused being in his mid thirties, the second in his late fifties and the third accused is in his early fifties. The age factor as far as the first two accused are concerned has influenced me greatly in determining what punishment should be meted out to them for their part in this shocking crime. I sentence the first accused to twelve years’ imprisonment and the second accused to six years’ imprisonment. As regards the third accused there is only one sentence in law which the court can and does pass and that is that he shall suffer death by hanging.”

(1969) H. C. D.

- 211 –

234. Hattan v. R., Crim. App. 557-D-69, 22/8/69, Georges C. J.

The appellant was an American seaman on board a ship visiting Dar es Salaam. On his day off, he met one Mariamu, apparently a prostitute, and both went to her home, presumedly for sexual relations. At some stage, they fell asleep. When Mariamu awoke she found the appellant gone and her radio missing. The radio was later found in the appellant’s possession. He was charged of theft c/s 265, Penal Code, and convicted on his own plea, being sentenced to six months imprisonment. Appeal from sentence only.

Held: (1) “Mr. Velji has told me from the bar that the appellant’s defence was that he had purchased the radio from Mariamu …….. He said that the appellant changed his plea to guilty because it became clear that the decision of the matter would have taken at least 2 weeks during which time he was responsible for his boarding and lodging here at considerable expense. In the circumstances he though he would cut his losses, pleads guilty and ask for leniency. As I indicated in the course of the argument, I do not think that the circumstances under which a plea of guilty has been entered are particularly relevant to the issue of punishment. Once an accused person voluntarily pleads guilty and accepts the facts put forward by the prosecution then punishment must be determined having regard to the facts as put forward and as admitted.” (2) I am quite satisfied that the learned Resident magistrate was misdirecting himself, when he stated that “a fine albeit heavy, would not meet the requirement o this case.” Wherever a first offender is concerned the emphasis should always be on the reformative aspect of punishment unless the offence is one of such a serious nature that an exemplary punishment is required, or unless the offence is so widespread that severe punishment is needed as a shock deterrent. For example, it may be that a first offender found picking pockets in a market or at a football match may well be sent to prison because it is well known that offences of that nature are very common. There is nothing on the record to indicate that thefts by seamen from prostitutes with whom they consorted posed such a problem as to require a severe deterrent. The circumstances of the theft itself are in no way extraordinary”. (3) “There is nothing on the record to support the magistrate’s statement that the conduct of the appellant in the commission of the felony was “a deliberate contempt for the laws of this country.” If indeed the learned magistrate felt that the man may have been tempted to steal then clearly his having fallen to this temptation cannot be regarded as deliberate contempt of the law. Further it should be noted that laws against stealing are among the most universal of laws. There is nothing particularly Tanzanian about the law of theft which would make a theft here a deliberate contempt of the laws of this country. This could more aptly be said of disrespectful behaviour towards the National Anthem, or the Flag or other symbols and institutions of nationhood or deliberate disobedience of a law particularly brought to the notice of a visitor.” (4) “The position then was that this was an ordinary case of theft by a person with an otherwise unblemished record. This does not appear to be the type of case in which peremptory imprisonment is called for unless the law prescribes otherwise …. It is generally agreed that first offenders should not as a rule be sent to prison where there is an opportunity to mix with and learned bad habits from more seasoned criminals.” (5) Sentence varied Shs. 1,000/- fine pr. 3 months imprisonment.

(1969) H.C.D.

- 212 –

235. Ahmedi s/o Mohamedi v. R., Crim. App. 434-D-69, 8/7/69, Saudi J.

Appellant was convicted of stealing from a Motor vehicle (Penal Code ss. 269 (c); 265). He was caught with the stolen articles while trying to hide them near the scene of crime.

Held: (1) Appeal dismissed. (2) Obiter. It is not sufficient to name accused and witnesses by numbers alone. “Care is required to avoid confusion……… The best safeguard is to name the accused and witnesses both by their names and numbers e.g. Ali Mohamed (accused 3), Thomas Issa (P.W. 2) ….. “ Amiral Ismail v. R., I.T.L.R. approved.

236. Peter Zakaria v. R., Crim. App. 91-A-69, 12/5/69. Platt J.

The appellant insulted and threatened a court broker with bloodshed if his car was attached. He was convicted of unlawfully obstructing a court officer c/s 119, Penal Code. The section had previously been repealed and replaced by s. 114A.

Held: (1) The English rule, as stated in Meek v. Powell (1952) K.B. 164, is that where a charge is laid under a repealed section, which has been re-enacted, the conviction is a nullity. However, it was held in R. v. Indo Parsad Jamutram Dave, Crim. Rev. 40-D-63, Tanganyika Law Report Supplement no. 1/1964, that the law here was wider and that the defect might be cured on appeal under ss. 346 and 319, Criminal Procedure Code, “provided that the offence was in every essential the same under the old and the new sections, and provided that no failure of justice will result or may result from the alteration”. The same has been done in cases where a wrong section of the Penal Code has inadvertently been quoted. “Thus where the particulars set out a proper illustration of the offence and the appellant ……. Could not have been misled at all by the wrong statement of the section applicable, the courts have cured the irregularity…..” (Cutting: Abdu Rasul G. Sabur v. R., (1958) E.A. 126). However a qualification was stated in Uganda v. Keneri Opidi (1965) E.A. 614, which cannot be disputed, that “if it is not clear what the charge ought to have been, then the curing section cannot be invoked”. “From the authorities quoted, then it seems that the criteria for departing from the English rule are that there will or may be no miscarriage of justice of any kind, and in particular it must be clear what the alternate charge ought to have been…….. (2)On the facts of the case at hand, it is clear that the new section, s. 114A, is broader than the old section, s. 119, and does not repeat in similar terms the language of the old section. Moreover it is unclear from the particulars which part of the new section the offence would fall under. Therefore, in the circumstances, the charge cannot be cured, and the conviction null.

237. Costas Papadopoulos v. R., Crim. App. 244-A-69, 24/9/69.

The appellant was convicted of unlawful possession of gemstone namely a ruby, c/s 3 of the Gemstone Industry (Development and Protection) Act, 1967. The offence was committed on 29 July, 1969, and the act was brought into force only on 1 August 1969, by virtue of G.N. 203/1969.

Held: (1) It was conceded by the Republic that as the offence occurred prior to the Act coming into force, the charge was irregular. However it was contended that the irregularity might be cured and the charge amended to bring it under ss. 72-73 of the Mining Ordinance, Cap. 123, which had been extended to cover gemstone by G. N. 709/1964, called “The Restriction on

(1969) H.C.D.

- 213 –

Possession and Purchase of Gemstones Notice 1964”. However, when the Gemstone Act came into force on 1 August 1969, it explicitly revoked G.N. 709/1964. The position, at first sight, then, would appear to be this: (a) The offence was committed prior to the Gemstone Act coming into force, and so no charge could be laid under that Act; (b) However the charge was laid in September after the Gemstone Act came into force, and had revoked. G. N. 709/1964. So no charge could be laid under ss. 72-73, Mining Ordinance, because those sections had only extended to gemstones by virtue of the now repealed General Notice. The dilemma, however, is solved by s. 10(2), Interpretation and General Clauses Ordinance, Cap. I, from which it follows that where a liability has been incurred under an enactment afterwards repealed, the repeal is no bar to legal proceedings being taken under that enactment in respect of the liability in questions. So the accused could have been charged under ss. 72-73, Mining Ordinance, as extended by G. N. 709/1964, even though the latter had been revoked. (2) The question, however, is whether the court can now cure the irregularity under s. 346, Criminal Procedure Code, and amend the charge so as to bring it under the Mining Ordinance. The criterion laid down in R. v. Indo Prasad Jaincetram Dave, Crim. Rev. 40-D-63, Tanganyika Law Reports Supplement, No. 1/1964, is whether “the offence was in every essential the same under the old and the new sections.” In this case the two sections are in essence the same, although the Gemstone Act differs in defining “gemstones” for the first time and imposing more severe penalties. So the defective charge could be cured. (3) However, even were this done, the conviction could not be upheld, because the alleged ruby was not properly proved to be a gemstone, according to the provisions of the Mining Ordinance. (4) Appeal allowed and conviction quashed.

238. Msangi v. R., Crim. App. 125-A-69, 12/7/69, Platt J.

The appellant was convicted of stealing by servant c/ss 271 and 265, Penal Code. At the trial, he raised an alibi which was rejected by the magistrate, relying on the cases of R. v. Chemulon Wero Olango, 4 E.A.C.A. 46 and R. v. Loibori s/o Jekindikoki, 16 E.AC.A. 86, which appear to hold that an accused has the burden of proving an alibi which he raises.

Held: “On a number of occasions this court has pointed out that the proper approach to a defence of alibi is that laid down by the Court of Appeal in Leonard Aniseth v. R., (1963) E.A.C.A. 206. R. v. Chemulon is now no longer good law and should not be followed. The principle is that an accused person does not assume the burden of proving his defence. It does not lie upon him to prove the facts he relies to establish his alibi. It is sufficient if the alibi as it stands raises a doubt in the mind of the court that it might be true.” Appeal allowed on this and other grounds.

239. Makangore s/o Kindai and others v. R., Crim. App. 4-A-69, 14/2/69, Platt J.

The was an appeal by ten men who had been jointly convicted of cattle theft c/ss 268 and 265 of the Penal Code and sentenced to the minimum sentence with and without corporal punishment according to their ages. The facts are that one night 400 cattle were stolen from one Mes hinga who lives in Bashati area, Musoma District. When the alarm was raised, his fellow tribesmen answered it and when the remaining cattle had been counted and the loss ascertained, the tribesmen followed the tracks. The appellants were all in the party following the tracks which led into Msailand. None of the appellants had lost any cattle, but

(1969) H.C.D.

- 214 –

it was said that they being members of the Watatiru tribe, had justifiably banded together to try and recover the lost cattle, which belonged to one of their fellow villagers. For this purpose they were all armed with bows and arrows. On the third day, during day light, they came to the village of Arashi and saving cattle being grazed. The herdsman fled. The appellants allegedly finding that the cattle tracks ended in this village seized the animals they found there which numbered 45 cattle and nine donkeys. It is not disputed that these beasts were not part of the 400 stolen cattle. Their explanation was that they were taking them to the Police so that investigations could be made. They were however arrested with the cattle on the way. The defence argued on their behalf was that of a claim of right. The Magistrate rejected it ruling that the defence put forward was not open to the appellants, because they took these beasts revenge from innocent people. The appellants had simply taken the law into their own hands, without checking whether any of their cattle were in the village. Such behaviour could not be based on a claim of right.

Held: (1) “Learned Counsel contended that the facts were that having in minded the background of these appellants, their claim to precipitate investigations was not unreasonable. He conceded that the appellants had acted unlawfully, but argued that the appellants had acted under a claim of right and relied on R. v. BERNHARD (1938) 2 A.E.R. pp. 140- 144 FOR THE proposition that prevent the taking from being felonious, the claim of right must be an honest one, though it may be unfounded in law or in fact. With respect, I would adopt that view of the law.” (2) “I agree with the learned Magistrate that the appellants could not really have thought that they were entitled to act on the basis of a claim of right. But at the same time even if the appellants knew that they were acting unlawfully and had no right to take the cattle from Arashi, I think that it is not unlikely that the learned Magistrate may have found that their suspicions having honestly been aroused, they had decided to take and handover the cattle to precipitate investigations. It was a dangerous course to adopt, which fortunately for every one was arrested by the prompt action of the Inspector. But it is a common experience that people think that if they can get possession of some one else’s property and hand it to the authorities, that that will be a useful leer in obtaining the information they need; indeed this is a form of investigation adopted not only by ordinary people, but also occasionally by those in authority. The issue simply was one of fact whether the appellants intended to deprive the owners of the cattle at Arashi permanently, or whether the appellants, exhausted by their fruitless search, had decided on this ruse to try to force the return of their cattle; and that issue depended on whether they were really going to the local authorities. The learned Magistrate, even on a proper view of the evidence might not have accepted their defence, but cannot say that it is certain that he would not have done so.” Appeals allowed.

240. Mathias Pirmin v. R., (PC) Crim. App. 127-M-69, 25/5/69, Seaton

The appellant, who was the servant of the complainant, stole various items from the complainant’s house at night and fled. He was convicted, on his own pleas, of burglary and theft.

Held: “In making his escape, the appellant, who had quite lawfully been in the house, that is to say, until the time he stole the complainant’s articles, opened the door of the house which was shut. These facts, if correct, amounted to the offences plea of guilty. Appeal dismissed.

(1969) H.C.D.

- 215 –

241. Ali Mohamed v. R., Crim. App. 119-A-69, 20/8/69, Platt J.

The appellant was convicted of abduction of a girl under the age of 16 years c/s 134 of the Penal Code and sentenced to 9 months of imprisonment. The facts were that Sera d/o Zakaria, found by the Magistrate to be about 12 years of age, had goneto a dance on the night of the 14^th December, 1968, she had gone with her friend Perpetua, and she complained that at about 11 p. m she was called out of the dance hall where she met the appellant. She was then taken to the house of one Dick where the appellant had sexual intercourse with her. Then at about 2 am. She was taken to the house of one Hussein where she spent the night, returning home the next day. It was proved that she was unmarried and her mother testified that Sera had left her house without her knowledge. When she returned home the next day her mother discovered that she had had sexual intercourse with the appellant and ordered her to report the matter to the Police.

Held: (1) “With respect to the learned Magistrate, on Sera’s own evidence …. I am of the opinion that there was no certainty at all that Sera was forced to stay away from home.” (2) “The question then is whether it can be said that even if Sera consented to go to Dick’s house with the appellant, nevertheless, as Sera’s mother had not given her permission, it could still be held to be a case of abduction. It is clear that abduction involves a taking but such taking need not be by force, and it is immaterial whether the girl consents or not. So for instance, an elopement arranged by both parties may still amount to abduction. But he taking must be from the custody of the girl’s parents or guardian without the latter’s consent. It is said that if a girl leaves her father’s house for a mere temporary purpose intending to return to it, she is still in her father’s possession. Consequently, if while she is out the prisoner induces her to run away with him, he is guilty of the offence. (See Archbold’s Criminal Pleadings, Evidence and Practice 36^th Ed. Para 2942, p. 1106) The final question then to be decided is whether the appellant in this case did persuade sera to leave her mother’s house while she was temporarily away from it. For it sera left her mother’s custody on her own account and went to the appellant without any inducement on his part that would not amount to a taking. (See R. v. OLIFER, 10 Cox 402) On this point I must confess that I entertained considerable doubt. From the facts set out above, it seemed probable that Sera being accustomed to the appellant would need no inducement to stay away from home overnight. She had left home on her own accord and she stayed away as she had done previously. In the circumstances of this case, there was nothing to show that the appellant had done more than infringe his moral duty to return her to her mother’s house, apart from Sera’s complaint, which she was ordered to make. Taking into account the fact that it is not clear whether Sera’s evidence could properly have been taken on oath, I considered that the conviction was so doubtful that it could not be allowed to stand.” Appeal allowed.

242. Yusufu Khatri v. R., Crim. App. 78-A-69, 25/4/69, Platt J.

The appellant was convicted on his own plea (inter alia) of forgery c/s 337, Penal Code. The facts, which were unclear, seemed to be that the appellant had written a cheque for

(1969) H.C.D.

- 216 –

Shs. 700/- which was to be paid to a certain taxi-driver. The cheque was drawn on an account which had already been closed. In pleading the appellant is recorded as having stated “it is true”, and after the statement of facts, as saying: “I do agree with everything in the charge sheet.”

Held: (1) “It is clear that the proceedings were irregular ……. Recording a plea in the terms “it is true” is very unsatisfactory. If the facts put forward are merely those of the charge in an important offence such as forgery, the prosecution and the court run a risk of having the proceedings set aside. As is clear from what I have said above, it is not really known how this offence arose, but possibly if the facts had been fully set out, the learned Magistrate might have realized that the charge could not be supported.” (2) “But apart from that it is quite clear that on the authority of Reg. v. Martin, 5 Q.B. D. 34 that as the cheque was not an instrument false in itself, there could be no question of forgery. “ (3) Appeal allowed.

243. Bhanbir s/o Versi and another v. R., Crim. App. 429-D-69, 1/8/69, Mustafa J.

The appellants were convicted of being a common nuisance c/s 170, Penal Code. They had driven a car through a quiet residential area at 11 p. m and the car had backfired several times in a manner sounding like gun-fire, annoying and disturbing the residents, one of whom gave chase. The trial court found that the appellants had deliberately caused the car to backfire.

Held: “Here a motor vehicle in the course of a short time produced 5 explosions yet when this vehicle was driven to the police station shortly thereafter with a policeman as passenger, no noise or explosion was heard at all. I cannot think the presence of a policeman would have produced this noiseless affect. Learned counsel …. Contends the prosecution did not produce evidence to show whether the vehicle in question was prone to back fire. I should have thought in normal circumstances a vehicle does not backfire, and if it does the knowledge would be peculiarly within the knowledge of appellants and his friends. However appellants elected to remain silent and said nothing and gave no explanation at all. In these circumstances the only possible reasonable inference is appellant and his friends deliberately and intentionally caused the vehicle to backfire.” Appeal dismissed.

244. R. v. Juma s/o Legeza, Crim. Sass. 107-Shinyanga-69, 23/6/69

Accused was told his wife was having an adulterous association with another man. He questioned her after having taken drink, slapping her several times. When she confessed, he beat her with stick, told her to go and followed her to her supposed lover’s house where he took away her clothes and left her naked on the bed. The accused later returned and found her dead due to head injuries suffered during the beating. His attempts to revive her with buckets of water failed. He reported the matter, and confessed his actions to the elders subsequently the matter, and confessed his actions to the elders subsequently to the Administrative Secretary.

Held: “I am obliged to defence counsel for his reference to the case of Manyeri s/o Mukonko v. R., (1954) 21 E.A.C.A 274 where it was held that the sudden discovery of a wife’s adultery even if not by finding her in flagrente delicto may in Tanganyika in law be sufficient provocation to reduce an intentional killing to manslaughter. I have no doubt that that case reflects well established law.” (Also citing: Russel on Crime, p. 584;

(1969) H.C.D

- 217 –

Yolamu Aria v. R., (1969) E.A. 146 “The circumstances surrounding the killing. Suggest to me that [the accused] might have been influenced by drink to such an extent that coupled with the admission of his wife’s committing adultery, his mind was so affected that the was momentarily deprived of his reason and so affected that he was momentarily deprived of his reason and so unable to control himself in order to make a careful choice of action. “ Accused acquitted of murder and convicted of manslaughter.

245. R. v. Evelyine d/o Mathias: Crim. Sass. 15-A-69, 28/6/69, Platt J.

The accused was charged with infanticide c/s 199 P.C. in that allegedly she will-fully threw her new-born child into the latrine of her father’s house, while the balance of her mind was disturbed. Apparently no one knew of the birth of the child, who was only discovered in the latrine when it was heard crying. The accused’s parents, with whom she lived, denied any knowledge of her pregnancy or of any child-birth. Medical evidence however showed that the accused, when examined shortly after the discovery of the child, had recently delivered a child and the placenta and membranes were still in her body.

Held: (1) “Having in mind the views expressed in YOWANINA NAMAYAJA v. R. (1953) 20 EACA 204 the prosecution had to prove that the accused had caused the child’s death by a willful act which, but for the balance of her mind being disturbed would have been murder.” (2)”The prosecution has to prove that the accused had no simply abandoned the child but had intended to cause its death by throwing it into the latrine. An investigation should have been mounted to discover where the child had been born or at least to disprove that the birth had taken place involuntarily in the latrine and the child had passed into the pit being mistakenly thought to be faeces. The father had destroyed the latrine and reliance could not be placed on witnesses’ recollection of the size of the hole or whether there was any blood etc. in or within vicinity of latrine.” (3) “Altogether the evidence for the prosecution rested upon evidence which did not rule out certainly that the accused could not have been caught at the latrine for the purpose of passing faeces and involuntarily gave birth to her child. On this point the medical evidence was strongly in her favour that she could well have thought it necessary to relieve herself in the ordinary way, being unaware that her hour was nigh. It is said to be a common experience in hospital deliveries. The accused was thought to be a prima par and there was nothing to suggest that this was not the case. If that is so, then it was said that she might well have been taken off guard and delivered the child …. If then the accused gave birth involuntarily, there remains the question why she did not call out for help or report the matter. The view was accepted by the court of Appeal in Yowanina’s case that in circumstances such as these, a woman tends rather to design the abandonment of her child than its destruction, especially in cases of panic, fear or despair. It is a matter of inference from all the circumstances and possibly the prosecution in this case may have attempted to avoid this difficulty by postulating the willful act of discarding the child. But however one looks at this case, I venture to think that the evidence is too uncertain to accept the facts relied on, and the facts which are clear, do not lend support to a conviction beyond reasonable doubt on the charge as framed.” (4) Accused acquitted.

(1969) H.C.D.

- 218 –

246. Thomas Bangili and Samike Maduhu v. R., Crim. App. 239-M-69, 28/6/69, Kimicha J.

The four accused were convicted of three offences against the Witchcraft Ordinance Cap. 18: (1) representing themselves to have the power of witchcraft c/ss 3(3) and 5(2); (2) using an instrument of witchcraft, that is a “talking guard”, c/ss (3) (ii) and 5 (2): and (3) supplying an instrument of witchcraft c/ss 3(iii) and 5(2). The accused were traditional doctors who diagnosed illnesses by use of spirits and a talking gourd, and dispensed medicines and other objects to cure those illnesses, or to counteract the harmful effects of witchcraft. The facts forming the basis of the charges are reproduced for the light they throw on the general significance of the Witchcraft Ordinance.

Held: (1) “Witchcraft has existed in our society from time immemorial and its practice has all the time been unpopular. Witches have been subjected to public executions, tortures, had their property confiscated by the tribe and were ostracized and treated with contempt. The Legislature was therefore right in crystalising this natural abhorrence to witchcraft in to a punitive Ordinance. But at the same time it is common knowledge that our society has also from time immemorial enjoyed the experience and honest services of native doctors who dealt with all the different diseases known to our society from ordinary fevers to leprosy, lunacy, epilepsy and sterility. We have our general practitioners and specialists. These attribute the cause of discases either to natural causes or to witchcraft and they are expected to cure their patients accordingly. As is with our medical practitioners’ they have to diagnose their patients before giving them treatment. The medical practitioner does this by examining the patient and by listening to his explanation of his ailment. Very often X-ray examinations and complicated pathological tests are necessary before deciding on a course of treatment. Our native doctors do not have X-rays and pathological laboratories and being aware of this limitation they have overcome this handicapt by using all sorts of devices loosely called fortune telling or possession of what is known in sophisticated societies “as sixth sense” or a spirit in native parlance. Some of these physicians are famed for their accurate diagnosis and people travel for many miles to consult them. I must hasten to add that the word “spirit” is also commonly used to mean invisible beings that are capable of being under the control of some persons, invariably witches, and they can be used by their masters in causing death or injury to persons and property. I think these are the spirits which have been covered by the provisions of the Ordinance. The Legislature enacted the Witchcraft Ordinance because it was aware of its existence and of its harmful effect on society but it is my view that the Ordinance was not intended against those who either diagnosed or cured witchcraft spells. It is also my view that diagnosing or curing witchcraft spells is not synonymous with practicing witchcraft and that this group of practitioners is covered by the provisions of section 37 of Cap. 409 of the Laws.” (2) “I now proceed to deal with the case under consideration. How did Thomas Bangili and his colleagues offend against the law in this case? Ramadhani Saidi had a critically sick child whom other doctors failed to cure. He was referred to Thomas. Thomas

(1969) H. C. D

- 219 –

Diagnosed its disease accurately and then treated it personally. It had a remarkably quick recovery. P.W. 5 Nyamwala d/o Musa …….. had the same wonderful story to tell. She had been sick for a long time and other doctors had failed to cure her. She was referred to Thomas and she was quickly cured. In each case the fee claimed was extremely reasonable. Certainly the medicine that he used in each case was not harmful and it produced wonderful results. Thomas’ offer to treat Ramadhani’s child and Nyamwla d/o Musa forms the particulars of the 1^st count. And his treatment of the two witnesses forms the particulars of the third count. But I do not see how these facts can be fitted into any of the provisions of the Witchcraft Ordinance …. I am sure in my mind that his case is covered by section 37 of Cap. 409 of the Laws which provide: - “Nothing contained in this Ordinance shall be construed as prohibiting or preventing the benafide practice of systems of therapeutics according to native methods by person s recognized y the community to which they belong to be duly trained in such practice …..” For the above reasons all the 4 accused’s conviction on counts 1 and 3 was quashed and the sentences were set aside.” (3) “The use of the talking gourd forms the particulars of the 2^nd count. This has been termed as an instrument of witchcraft. Thomas gave evidence on oath and gave an explanation of the gourd to tell fortune of peopled. This is the gourd which was telling me about the troubles of patients and their sicknesses and their wishes. This gourd does not speak; I speak myself through it when I find out the fortune of people. I use my spirits in this art of telling fortunes …… Taking the whole evidence into consideration I take the word “spirits” to mean sixth sense or something having that meaning and not the harmful spirits that I have alluded to earlier. This is not an uncommon phenomenon. There are persons in America and Europe who fully exploit their sixth senses and conduct world tours exhibiting their wonderful gifts. This gift is not intentionally cultivated or developed by their possessors. It just comes to them …. In the case under consideration, Thomas’ clients have just to speak to him and then his sixth sense goes into action. It appears to me that the gourd was only a means of making the process more impressive to his clients. His diagnosis was accurate and led to wonderful cures. Under the circumstances there is nothing criminal in his having the sixth sense and in the use of the gourd. For the above reasons all the four accused’s convictions on the 2^nd count was quashed and the sentences were set aside.” (4) Appeals allowed.

247. Simjana s/o Nteli and Another, Crim. App. 154-A-69, 19/8/69, Platt J.

The appellants asked for water at the complainants’; and upon drinking the water they were given, began to vomit. The complainants, who were suspicious because of recent cattle robberies, detained the complainants. They were then charged with and convicted of “trespassing at a cattle boma with intent to steal, contrary to section 4(1) (a) (b) of the Stock Theft Ordinance, Cap. 422, and sentenced to the relevant Minimum Sentences.

Held: (1) Sub-section (a) of S. 4 (1), Stock Theft Ordinance provides for trespass by unlawful entry with the intent to steal, while sub-section (b) provides for the trespass of unlawfully remaining upon land or a cattle boma with the intent to steal. The two sub-sections provide for mutually exclusive offences and cannot therefore be charged together in one count. If it is not clear which offence will finally emerge from the evidence, the offences ought to be charged in the alternative. Thus the first count may charge unlawful entry, while in the alternative the

(1969) H.C.D.

- 220 –

accused may be charged with unlawfully remaining upon land or cattle boma. (2) The conviction cannot be supported because it is doubtful if either of the types of trespass charged were proved. It is clear that there was no initial trespass for the accused. (3) Appeals allowed.

248. Zuberi s/o Rashidi and Adam s/o Kibwana v. R., Crim. App. 1-A-69, 7/3/69, Platt J.

The two appellants were convicted of corruptly obtaining Shs. 400/- from one Saidi s/o Varisanga as an inducement for forbearing to charge him with unlawful possession of a government trophy, c/ss 3(1) and 3(3) (a) of the Prevention of Corruption Ordinance, Cap. 400. The appellants, who were game scouts went to Saidi’s house and demanded to search without warrant. Saidi permitted the to do so, and the appellants found inside a hartebeest skin, which Saidi claimed had been used for sleeping on for a long period. The appellants then led Saidi away to be prosecuted. On the way the appellants, in the presence of others, demanded money as an inducement not to prosecute. It was agreed that Saidi should pay Shs. 400/-, which was done the following night in the presence of witnesses. In convicting the appellants, the magistrate relied partly on Saidi’s evidence.

Held; (1) There is no doubt that if Saudi actually gave the money to the appellants that he was an accomplice taking part in the offence of corruption. It is a general rule of practice founded upon prudence that it is unsafe to convict an accused upon the evidence of an accomplice without corroboration. The law on the subject, if I may say so, is compendiously dealt with in Canisio s/o Wawa v. R. (1956) 23 E.A.C.A. 453. It is only in exceptional cases in which a departure from general practice is justified. The criterion as to whether such an exceptional case has arisen is the credibility of the accomplice or accomplices combined with the weight to be attributed to the fact to which they testified. The principal factors to be considered when assessing their credibility is not only their demeanour and quality as witnesses but also their relation to the offence charge and the part which they played in connection therewith, that is say, the degree of their criminal complicity, in law and in fact …… it is apparent then that as the learned Magistrate did not direct himself as to the danger of accepting accomplice’s evidence without corroboration, it would not be proper for me to rely on his acceptance of Saidi’s evidence without corroboration the grounds that the case came within the exception of the general rule. But his conclusion may be supported in so far as the evidence of other witnesses did corroborate Saidi’s testimony ……the Republic contended that taking the evidence of the four witnesses together with the evidence of Ali and Lukio, there could be no doubt that Saidi’s evidence was reliable. After careful consideration, I think, that that is so.” (2) (In passing) Prosecution of peasants found using a game trophy for domestic purposes may be quite justified but perhaps game officers would serve the public more in trying to issue certificates of ownership rather than bringing prosecutions. (3) Appeals dismissed.

249. R. v. Makuzi Zaidi and Another, Crim. App. 469-D-69, 15/10/69, Georges C. J.

The accused were charged with causing grievous harm c/s 223 P.C. it was alleged that they had jointly caused grievous harm to one George Okumu by hitting his mouth with their heads, thereby causing him to suffer the loss of a tooth. The driver

(1969) H.C.D.

- 221 –

Of a taxi, the complainant, his friend Opio – all of them Jalous – and a certain woman, Lucia, who was not a Jaluo drove up to a petrol station and saw two persons approaching abusively calling out “These Jalous have administered us here in Irinaga for a long time and to-day they will see.” The complainant alighted and the first accused immediately began beating him. The second accused joined in and held the complainant by the waist while the first accused “headed” him. Opio went out to intervene and was also assaulted. The complainant meanwhile broke away and went to hide. According to the lady, the fight had taken place 4 paces from the taxi and had lasted 20 minutes; she had seen it all as she had been sitting in the taxi all the time. She had seen the complainant coming towards her spitting blood with a tooth in his hand. The driver claimed he had stopped only for about 2 minutes and all his passengers alighted after which he had driven off but he had seen the fight as he made a turn and gone to report to police. The area was well lit with electric lights an Opio claimed he had recognised their attackers whom he later that night identified at the Police station. Medical evidence showed complainant was bleeding from the mouth and the tooth had come from his upper jaw. The District Magistrate found there was no case to answer as a prima facie case had not been made out according to the criteria set out in Ramaulal Prambakali Bhatt v. R. [1957] E.A. 332. He disbelieved the lady and pointed out the discrepancy, between her timing (20 minutes) and the driver’s (about 3 minutes). Opio’s evidence could not be relied upon as he had also been attacked and moreover had had complainant as his witness on the same issue in another court. An identification parade would have been held to identify accused as there had been other persons around the scene.

Held: (1) “On the law I am satisfied that the Magistrate directed himself correctly when he followed the criteria laid down in Bhatt’s case. The Court there clearly stated that they did not agree that a case was made out where at the close of the prosecution the case was merely one: - “which on full consideration might possibly be thought sufficient to sustain the conviction”. There must be some evaluation of the evidence for credibility. The case to be called prima facie must be such that:-“a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defense.” (2) “This is, as far as I am aware, the first case in which the Republic has exercised its right to challenge a conviction on what is in effect a question of mixed law and fact. As in all appeals it is the duty of the court to weigh the evidence and drow its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. (Binkerrel Namkushan Pandya v. R. [1957] E.A. 336 quoting with approval from The Glannibante (1876) 1. P. D. 203). It must be borne in mind, however, that the appellate court in exercising its jurisdiction to review evidence and determine whether the conclusions of the trial judge should stand should do so with caution. Where it is clear that the trial judge has plainly gone wrong and had failed to appreciate the weight or bearing of circumstances admitted or proved the appellate court should not hesitate to interfere (Peters v. Sunday Post Limited [1958] E.A. 424).” (3) “It would appear in this matter that the District Magistrate could not have evaluated the evidence correctly if he reached the conclusion that a prima facie case had not been made out. There were discrepancies in the evidence for the prosecution but they are not such as to make

(1969) H.C.D.

- 222 –

the evidence totally unworthy of belief. Whenever witnesses testify about quickly moving events there are likely to be discrepancies. Indeed if there are none that would be, of itself, cause for some suspicion that the story had been rehearsed …….. On the facts of this case it would seem that once the evidence of the complainant had been accepted there was enough evidence to call upon the accused person. They could have been convicted on the evidence to call upon the accused persons. They could have been convicted on the evidence before the Court if they had decided to remain quiet, though they need not necessarily have been. Of course had they given evidence, then with both stories before him the Magistrate would have been in a position to decide finally on credibility and conclude whether or not he felt sure and certain of the guilt of the accused.” (4) Case remitted to magistrate with instructions to call upon the defence.

250. R. v. Selemani s/o Hassani Crim. Sass. 160-9-69, 18/9/69, Mustafa

The accused went out at night to chase away wild pigs which were destroying crops on his shamba. Believing that the pigs had run away into the shamba of the deceased, his neighbour and relative, he went over to the deceased’s house where he woke up the deceased’s wife who told him she did not know where her husband was. He then went into the shamba alone and when he found the pigs he fired his shot gun. Later he heard a voice saying “you have already shot our brother in law”. The deceased had in fact been in the shamba and was found to have died from a gunshot wound. The accused was charged with manslaughter.

Held: (1) “There is evidence that it was a dark night. The accused himself said that the deceased also was in the habit of hunting pigs at night, as did all the other farmers in that area. When he arrived at the house of the deceased that night and did not find him, it would perhaps be reasonable to expect that the deceased could have gone into his shamba to hunt pigs. According to the accused’s own account he went into the deceased’s shamba, which was full of maize, he saw some pigs, and at the same time he saw a black shadow. Despite the fact that it was dark, and despite the fact that did not find the deceased in his own house, and despite the fact that the accused knew the deceased could very well be chasing pigs away in his own shamba, and despite the fact that the accused himself had whistled and called for the deceased three times from the deceased’s house before he entered the deceased’s shamba, the accused opened fire immediately without ascertaining whether the shadow could be the deceased or somebody else. In my view what the accused did was recklessness of an extreme kind. He was reckless in discharging a gun at night when visibility was very poor, in a shamba where the deceased could very well have been … I therefore am of the view that the degree of negligence was so high that what the accused did amounted to the offence of manslaughter.” (2) Sentence. “This is a sad case. It is clear accused and deceased were great friends. Deceased before he died had said accused should not get into trouble because what accused did was through bad luck. Accused had been grossly negligent in discharging a gun and killing deceased. However accused has been in custody for 5 months how and the death of deceased, his brother in law, must have been a sad blow to him. I bind accused over to be of good behaviour for 12 months.”

(1969) H.C.D.

- 223 –

251. R. v. Mangangi Mbuki, Crim. Rev. 2-A-69, 18/9/69, Platt J.

Council employees in Arusha impounded some six head of cattle which had allegedly strayed within the Council’s jurisdiction, and placed them in an enclosed boma. The accused arrived an hour later armed with swords and sticks and after cutting through the fence of the boma drove away their cattle. They were charged and convicted of theft by persons having an interest in the thing stolen c/ss 263 and 268, Penal Code. The issue was whether the accused had thereby breached the Township Rules in rescuing the cattle and so had stolen them. The Resident Magistrate found there had been a breach.

He inferred an intention to steal and proceeded to convict the accused, awarding the minimum sentence of three years and twenty-four strokes.

Held: “There was evidence that the accused were well aware of the Township Rules, since their cattle had been seized on previous occasions and that they had both secured their release on payment of fees. On this occasion, they forcibly flaunted the rules. But although the Council’s servants had been accustomed to seize and impound cattle, it was questionable whether they, in fact, had the right to do so. Reliance was placed on Rule 82 of the Township’s Rules Cap. 101, which recite as follows: - “82. Any member of the police force or other person acting under instructions of the Administrative Officer may seize any animal straying in any street or public place or upon any Government land and may take such animal to be impounded by the Police ……. No person shall without law full authority, release or attempt to release, and animal from the pound or while on its way thereto.” It would appear from Rule 86 that a person committing a breach of this rule is only liable to a much smaller fine that that imposed by the learned Magistrate. It may have been because of the minimal powers under the Townships Ordinance that the case was brought under the Penal Code. But to take that course, it was necessary to show that the Council had a right to hold the cattle even under section 263 of the code ….. Applying the principle laid down in the section, although the accused were admittedly owners of the cattle, if the latter were subject to the special property or interest of the Council, then as the accused had taken the cattle by force, which would have otherwise amounted to theft, they were guilty of theft….. The problem was whether the council had established any special property or interest in the cattle, so that it could be theft on the part of the accused if they deprived the Council of the cattle without authority or payment of fees. This depended on whether the Council had properly seized the cattle. The evidence is no entirely clear whether the cattle were straying in a street, public place or upon Government land. It was said that the cattle had trespassed into the Town Council area. I take it that it is not an offence for the cattle, to be taken through the town under escort for a proper purpose ….. However, assuming that the cattle were “straying”, it does not appear that Kindon was entitled to seize the cattle. For as Rule 82 provides, the only persons entitled to seize cattle are members of the police force, or other persons acting under the instructions of the Administrative Officer, who may take the cattle to be impounded by the police. It is quite clear from the evidence that the witness Kindon was not acting as a member of the police force or under instructions of the Administrative Officer. As far as I can see, the Town Clerk, who gave

(1969) H.C.D.

- 224 –

evidence to the effect that Council employees had been authorized by the Council to seize cattle, did not explain that this was done under the authority of the Administrative Officer. Thus short of the Council’s employees being, for example, special constables, or the Administrative Officer giving instructions, the Council’s employees are not empowered to seize cattle. I am given to under stand that some townships have enacted. It follows that it is quite uncertain whether the cattle in this case had been lawfully seized, and therefore the Council’s right to hold the cattle against payment of fees was not proved. In consequence, section 263 did not come into operation, and the appellants cannot be said to be guilty of theft.” Conviction set aside.

252. Oddo Fungareza Meets v. R., Crim. App. 504-D-69, 10/9/69, Georges C. J.

Appellant was convicted of wrongful confinement c/s 253, Penal Code. The complainant, one Ahmed Mohamed, had been arrested and placed in the Primary Court lock-up for 3 days on the appellant’s instructions, which were based on his suspicions that Ahmed was trading without a license. The appellant was District Executive Officer and claimed to have acted according to s. 43 of the Magistrates Courts Act, Cap. 537, in his capacity as an ex-officio Justice of the Peace in the absence of the District Magistrate, who was away at the time. No charge was ever brought against Ahmed who was released on appellant’s further instructions.

Held: (1) “The Magistrates’ Court Act ……. Section 47 provides: - “A Justice of the Peace may arrest or may order any person to arrest any person who in his view commits a cognizable offence.” The power is exercisable whether or not there is a magistrate in the District …. The expression “cognizable offence” is defined in the Criminal Procedure Code Cap. 20 as “an offence for which a police officer may, in accordance with the first schedule hereto or under any law for the time being in force, arrest without a warrant.” The offence of trading without a licence is not specifically listed in the first schedule. It falls, however, under the general classification in Division X Part B which deals with “Offences under Laws other than the Penal Code.” this provides that where the offence is punishable with imprisonment for less than a year or with a fine only a policeman may not arrest the offender without a warrant. The penalty provided for trading without a licence c/s 3 of the Trades Licensing Ordinance Cap. 208 is “a fine not exceeding five hundred shillings” and “a further fine of twenty shillings for each day or part of a day subsequent to conviction during which the contravention continues.” The offence which Ahmed may have committed was not a cognizable offence and the appellant would not have had the power to arrest him without a warrant – even if it could be established that he had committed the offence.” (2) “The appellant appears to be justifying the arrest not under section 47 but under section 50(b). The authorizes a Justice of the Peace to – “remand in custody any person arrested with or without a warrant for a reasonable time not exceeding 7 days.” It may well be that this section cannot in any event cover the facts of this case since the cause of the unlawful confinement was the appellant’s order to the messenger to arrest without a warrant a person who had not committed any offence for which arrest without a warrant was permissible. Even if it could apply it is not available to the

(1969) H.C.D.

- 225 –

appellant in the circumstances of this case. There is a proviso to section 30 (b) which reads as follows: - “A justice shall not remand any person in custody unless case file is, or shall have been, opened for the matter and a charge is, or shall have been drawn up and signed by a magistrate, justice or police officer ….. The power to remand cannot be exercised unless the conditions laid down in this proviso are fulfilled. In this case no case file was opened, nor was any charge signed either by the appellant, or a magistrate or a police officer. The fact that the court documents were under lock and key and unavailable, cannot be regarded as an excuse for non-compliance with this proviso ….. Any blank sheet of paper could be used to set out the particulars of the offence as required under the proviso and this could be signed by the appropriate officer……. The appellant’s failure to obey the rules laid down in the Ordinance as a pre-condition to his exercise of this power to remand, makes his use of that power unlawful.” (3) “I have also considered whether or not the appellant can claim immunity by reason of section 16 of the Penal Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions. …….” In some circumstances a justice of the peace does act as a judicial officer. In others his functions are executive rather than judicial. In this case involving the arrest of an alleged offender without a warrant, his functions are executive rather than judicial and accordingly the immunity provided by section 18 does not avail. Accordingly the appeal against conviction is dismissed.”

253. Itta s/o Lewangwa and Eliwario s/o Thomas v. R. Crim. App. 189-A-68, 29/8/69, Platt J.

The appellants Itta Lewanga and Eliwario Thomas were convicted of defilement of a girl under the age of 12 years c/ss 130 and 131, Penal Code, and sentenced to 30 months’ imprisonment in addition to 12 strokes of corporal punishment. On the afternoon of the material day, the complainant, Anna, a girl or about eleven years, was walking home when the appellant Itta met her. After she had passed him, she was attacked by him, threatened with a knife, and gagged. She was taken to a coffee shamba where she was forcibly made to have intercourse once. Then Itta carried her to the nearby pombe club where he announced to the appellant Eliwario’s room and Itta left them there. This incident was observed by the witness Shufaya. Eliwario slept with Anna having intercourse with her. Then in the morning Itta returned and took Anna away discarding her in an exhausted condition of the bank of a river. Fortunately, she was discovered there and taken to hospital. She was discharged after about a fortnight. There was no doubt from the medical evidence that Anna had very recently been deflowered. The appellants both denied the offence. Itta gave an alibi and Eliwario stated that he had simply slept at his room at the club. Both gave unsworn statements. Their defences were rejected by the learned Magistrate.

Held: (1) “Did the charge of a joint offence hold good? Clearly Eliwario had had nothing to do with Itt’s alleged defilement, before the latter brought Anna to the pombe shop. It is not possible to say that both defilements were committed in the course of the same transaction; it might seem at first sight therefore to have been a bad charge and that one or other

(1969) H.C.D.

- 226 –

of the appellants must be acquitted. The Republic however saw the charge in another light. Excluding the first action of Itta, was it not clear, it was suggested, that if Itta having sold his “ng’ombe” and seen Anna go with Eliwario to the latter’s house, and then returned the next day and taken her to the river and discarded her there, then he must have been jointly guilty with Eliwario in his offence? On this view, Itta’s frist action was not so much a part of the charge as evidence that he was prepared to see Eliwario commit the same offence. With respect, relation to the charge.” (2) The appellant Eliwario made a cautioned statement to Police Constable Alex in which he admitted having had sexual intercourse with Anna with her consent. As a result, the Constable found in Eliwario’s house a bed sheet and Kanga with what appeared to be blood on them. The question arose whether this statement amounted to a confession so as to render it inadmissible. “The essence of the offence of defilement assuming that intercourse has been proved is that the girl must under 12 years. It is not an offence to admit sexual intercourse with a girl above that age, especially when the admission is made with the allegation of consent. The appellant had denied any sort of assault. That allegation was not pertinent to a charge of defilement. But he never made any statement as to the girl’s age. He was concerned to identify the girl as the complainant and to exonerate himself by alleging consent. As such, he had not admitted in terms the offence or at any rate, substantially all the facts which constituted the offence. It was an admission of a fact which proved to be incriminating, but was not a confession in itself. (See: Gope s/o Gidomabong & Others v. R, (1953) 20 E.A.C.A. 318). I bear in mind that where there is doubt that an ambiguous statement could be a confession. That the accused must be given the benefit of the doubt, and the statement thus ruled inadmissible. But I am satisfied that the appellant never put his mind to the vital ingredient of Anna’s age as he was concentrating on other matters. Therefore it appears to me that the statement was properly admitted.” (3) Appeal dismissed.

254. Salehe Abdallah v. R., Crim. Rev. 4-D-69, 13/6/69, Biron Ag. C. J.

Accused was convicted of arson c/s 319(a), Penal Code, and sentenced to fifteen months imprisonment, subject to confirmation. He had set fire at night to a house in which an old woman and some children were sleeping.

Held: “In sentencing the accused, the magistrate stated:-“Arson committed at night has caused many deaths to house occupants, and loss of property. Accused has acted without consideration and can never expect any sympathy from any peace-loving soul. He deserves a sentence to meet the requirements of the justice.” With respect, I fully agree with the magistrate’s direction and with the serious view he, apparently, took of the offence, but, with even greater respect, the sentence by no means reflects such gravity, nor is it really consonant with his own direction. But for the fact that the occupants of the house awoke and by their screems attracted assistance, they could easily have been burned to death. The sentence imposed is thus manifestly inadequate …… in the result, the sentence of imprisonment for fifteen months is set aside and there is substituted therefore, a sentence of imprisonment for three years. I would add that in cases of this nature, that is arson at night, when the lives of people are endangered, courts should commit convicted accused to this Court for sentence.”

(1969) H.C.D.

- 227 –

255. Ambindwile Kibona v. R., Crim. App. 536-D-69, 17/9/69, Hamlyn J.

The accused was convicted of failing to pay the penalty fined on forfeiture of a recognizance, c, s 131 (4) Criminal Procedure Code, and was sentenced to six months imprisonment.

Held: “The imprisonment ordered by the court appears to be heavy in default of the payment of Shs. 50/- Mr. Chandoo suggests that the wording of section 131 (4) “shall be liable” may denote that only six months imprisonment can be ordered by the court and no less for the default. He points out that for offences under the Penal Code, the wording “is liable” is used and this may permit of lesser sentences being passed. I think, with respect, that this is really a distinction without a difference and that a court is empowered by the section to pass a sentence of imprisonment “up to “six months. Holding this, I allow the appeal to the extent of reducing sentence from six months to three months imprisonment.”

256. R. v. Shabani Mwalyambwile, Crim. Rev. 89-D-69, 19/9/69, Georges C. J.

The accused was convicted of robbery with violence c/s 286 P.C. and sentenced to 9 months imprisonment. During a struggle in the cause of the robbery, the victim had bitten off a piece of the accused’s ear and in passing sentence the magistrate stated that this was an injury of a grievous nature and that it could be considered a special circumstance justifying his exercising discretion vested in him under Section 5 (2) of the Minimum Sentences Act.

Held: I am satisfied that the magistrate misdirected himself. “Injuries suffered by a robber as a result of resistance put up by the victim cannot be considered special circumstances justifying a reduction in the minimum sentence. Indeed I have often said, and it deserves where the offence charged is robbery with violence.” Sentences enhanced to minimum specified.

257. Peter Msunovi v. R., Crim. App 260-D-69, 13/6/69, Biron Ag. C. J

Appeal against conviction of robbery with violence c/s 285 and 286 P.C. and sentence. Appellant on seeing complainant enter a tea-room rose up from a bench seized him by the neck, demanded money from him and threw him to the ground. He held him there, put his hand into his pocket and removed Shs. 5/- all the complainant had – which he passed to another man who makes off with it. Appellant was handed over to police by the crowd which had gathered around. The sentencing magistrate said: “The accused is a first offender. The offence is under the mischief of the Minimum Sentences act, 29/63. The value of the amount obtained by the accused is only Shs. 5/-. There are special circumstances as provided by section 5 of the act. I sentence the accused to nine months jail.”

Held: “In admitting this appeal to hearing, the learned Judge queried – “is the fact that the appellant took only Shs. 5/-a ‘special circumstance”, or should it be viewed as merely Shs. 5/- was all that complainant had in his pocket?”. Apart from the fact that there is a conflict of judicial opinion as to whether the smallness of the amount involved constitutes ‘special circumstance’ in itself, in this case, the fact that he only stole Shs. 5/- does not reflect any moderation on the part of the appellant as he took all the money the complainant had on him; and further still, according to the complainant, the

(1969) H.C.D.

- 228 –

appellant ransacked his pockets searching for more money, whilst he had pinned him down on the ground. There are certainly no special circumstances disclosed from the proceedings.” Case remitted to trial court to allow accused to advance any other special circumstances.

258. Nyamangara Francis v. R., Cr. App. 540-M-69, 30/9/69, Bramble J.

This is an appeal against conviction and sentence for cattle theft c/s 268 and 265 P.C. Complainant missed his cattle and claimed to have identified five head in appellant’s possession. He took the police to the appellant’s enclosure and had five head of cattle seized which he claimed as his own. It was alleged that the appellant ran away and the policeman chased and caught him.

Held: More than half the magistrate’s judgment dealt with “the allegation that when the appellant saw the complainant and another man the day they seized the cattle he ran away. He was satisfied that the appellant knew that the other man was a policeman; that his running away showed a guilty conscience and as a result he found that the cattle seized was the property of the complainant. This was rather novel but dangerous method of proving the ownership of property more so as the property question was not produced before the court. The appellant denied that he had run away and assuming that he was not telling the truth it could not be an inescapable inference that he had stolen cattle. There was hence a grave misdirection such as would occasion a failure of justice.” Appeal allowed.

259. Ramzani G. Virji v. R., Crim. App. 426-M-69, 27/9/69, Bramble

The appellant was convicted of giving false information to a person employed in the public service c/s 122(a) P.C.

Held: “It cannot be said that the false information here was likely to cause the police officer not to do something which he ought to have done. If he wanted the vehicle inspected he should take the vehicle to the inspector as the appellant was unwilling to drive his vehicle to the station. This could only have been the inconvenience. He was likely to be charged for refusing to send the vehicle for inspection and he was in fact so charged. It cannot be said that every lie told to a police constable could involve an offence under the section.” Appeal allowed.

260. Joseph lello v. R., Crim. App. 561-M-69, 27/9/69, Bramale J.

The appellant was convicted on three charges of careless driving, driving without being accompanied by a competent driver and driving without fixing ‘L’ plates. These offences took place on the runway at an aerodrome.

Held: “The only question raised in this appeal is whether the runway came within the definition of Road for the purposes of the Traffic Ordinance. It is to be noted that the definition was amended by Act No. 20 of 1969……… The amendment is as follows “’road’ means any road within the meaning assigned to that term in the Highways Ordinance and includes any other road ……. On which vehicles are capable of traveling and to which the public has access, whether such access is restricted or otherwise ………. The definition of ‘road’ in the Highways Ordinance is “every way over which the public have a right of way and includes a bridge or culvert.” This was the meaning formerly given to “road” in the Traffic Ordinance and it is clear that the new definition

(1969) H.C.D.

- 229 –

has extended the term considerably. No longer is a public right of way the only guide since the word now also includes ‘any way on which vehicle are capable of traveling and to which the public has access whether such access is restricted or otherwise. The appellant has mentioned in his Petition of Appeal a number of restrictions on entry to the Aerodrome and indeed it is common knowledge that there is no public right of entry. The public have conditional access and so long as there is a way on which vehicles can travel this satisfies the definition for a road. I am of the view that the runway is a ‘road for the purposes of the Traffic Ordinance.” Appeal dismissed.

261. R. v. Sambu Ng’osha, Crim. Sass. 56 – T – 69, 8/7/69, Seaton J.

The accused was charged with the murder of his wife c/s 196 Penal Code. On the morning of the material day, the accused asked his wife to come with him to their shamba. She refused but later came. He told her to go to the millet shamba to keep away the birds. She refused and they quarreled. He suggested they should go to the village elders to mediate. She refused to go. Accused slapped her and she tore his shirt. He picked up a stick and beat her many times on her bottom and thighs. They then went home to eat and returned in the afternoon to the shamba. On the way the wife hid and the accused not finding her anywhere returned home. The wife returned at sunset and on being question by the accused led him to the shamba to convince him she had been in the shamba and hidden. Accused disbelieved her and they “fought”. Accused’s brother intervened and separated them. They returned home but on the way accused had to carry his wife as she had failed to walk. At home he poured water over her and applied hot bath treatment. In the night he went for “Aspros” as deceased ‘s condition deteriorated before she expired. Death was by shock due to a ruptured spleen such as could be caused by a blunt instrument or a fall on a hard object. Accused’s brother testified accused used a stick about 3 ft. long ¾” diameter apparently picked up on the wayside.

Held: “In my summing up to the assessors, I attempted to explain the law relating to murder and manslaughter particularly as it relates to killing by correction. I explained that it is unlawful to chastise a wife immoderately. The Law of Persons, Government Notice No. 279 of 1963, which is declared to be the law applicable to persons within the jurisdiction of the Nzega district council – as were the accused and his wife – by section divorce by a wife even if it causes marks or swelling. However, by section 166 of the Law of Persons, a husband who causes injuries to his wife can be made by the court to compensate her for her injuries and the court can in addition fine the husband the law does not condone the immoderate chastisement of a wife by her husband. I suggested to the assessors that if they were of the view that the chastisement of his wife was customarily done by a husband in the way of life and standard of living of the accused but that the accused had exceeded the usual bounds of chastisement, he was guilty of manslaughter. I advised the assessors that if they were of the view, either because of the weapon that had been used or the manner in which the accused had used that weapon, that he must have intended to kill or cause assessors were of the view that the accused had not killed his wife intentionally but had killed her by bad luck. Hence they advised that he accused was guilty of manslaughter.” (2) “In all the circumstances, I am of the view that the prosecution have

(1969) H.C.D.

- 230 –

not established beyond reasonable doubt that the accused caused death of his wife with malice aforethought. It is clear that the accused beat his wife many times on the same day and too hard. But the evidence is consistent with blows having been aimed by the accused at the buttocks and thighs-which are areas of a woman’s body usually well padded with fat. One or more of these blows may have fallen by mischance on the front of the abdomen and caused a rupture of the spleen. It is also possible that the blows on the buttocks and thighs caused the accused’s wife to fallen the accused deliberately armed himself with a heavy club-like weapon and struck his wife on the more vulnerable parts of the body such as the head. I accordingly agree with the views of the assessors. I acquit the accused of murder and find him guilty of manslaughter and convict him accordingly under section 195 of the Penal Code.” Accused sentenced to four years imprisonment.

262. Yasin s/o Selemani v. R., Crim. App. 457-D-69, 1/10/69, Georges C. J.

The appellant was convicted of burglary c/s 294(1) and theft c/s 265, Penal Code. He had broken into the house of a woman prison officer and made off with various articles, including eight mini-skirts, a school-leaving certificate, five photographs of boyfriend and Shs. 140/- cash. On appeal, a defence was advanced of “autrefoes acquit” that he had already bee tried and acquitted for the same offences. It appears that he had in fact been formerly charged for these offences in Primary Court, and had been acquitted due to the failure of the complainant to appear, under rule 24, Primary Courts Criminal Procedure Code. This provision, which corresponds to s. 198. Criminal Procedure Code states: “Where a complainant fails to appear at the time and place appointed for the hearing of any charge, the court may dismiss the charge and acquit the accused person, unless it shall think proper to adjourn the hearing to some other day ……..” it was argued that an acquittal under this rule operated as a bar to further proceedings against the accused, by virtue of s. 138, Criminal Procedure Code.

Held: (1) There appears to be no Tanzania authority on this subject. However there are a number of Kenya cases on the corresponding provision in the Kenya Criminal Procedure Code. In R. v. Juvani Nathu and Amrik Singh, (1944) 11 E.A.C. 62, the Court of Appeal stated in an obiter dictum that a dismissal for non-appearance of the complainant under s. 200, Kenya Criminal Procedure Code, was no bar to further proceeding. However there is a significant difference between the Kenya and Tanzania provisions. Whereas the Kenya section states that “the court shall dismiss the charge unless for some reason it shall think proper to adjourn the hearing of the case,” the Tanzania provision states that “the court shall dismiss the charge and acquit the accused.” A reading the decision in the case makes it clear that had the Kenya section included the words” and acquit the accused”, the rule of “autrefois acquit” would have applied. At any rate, in a subsequent Kenya case, Re Application of Ajit Singh, (1959) E.A 782, the Kenya Supreme Court declined to follow the dicta in Jiwani Nathu, and adopted the following holding of Rudd J. in the lower court: “If the dicta in R. v. Jiwan Nathu and Amrik Singh be correct it would follow that notwithstanding that charge had been duly and properly dismissed under section 200, a

(1969) H.C.D.

- 231 –

Malicious complainant could repeatedly file complainants in the same terms as the original complaint and that the magistrate would be bound to frame a charge and issue a summons in respect of each complaint, notwithstanding that the complainant never appeared on any of the days on which the accused was summoned to appear …… I do not think that that can possibly be the correct legal position ….. Notwithstanding the dicta in the judgment in R. v. Jiwan Wathu and Amrik Singh I am respectfully inclined to the view that when a charge is dismissed that is the end of that charge or any resubmission of that charge unless the dismissal is in accordance with some provision of law which provides that the a dismissal shall not have that effect or unless the court which orders the dismissal had power to dismiss on terms that the dismissal shall not prevent a fresh charge for the same offence in relation to the same facts being subsequently presented, which is not the case under section 200, Criminal Procedure Code ……..” There is East African authority, therefore, for the view that a discharge and acquittal for non-appearance of the complainant can support a plea of “autrifois acquit” (2) The position appears to be the same in India, as we see in Sohoni’s Code of Criminal Procedure, 13^th edition (1931), at pp. 858, and 613-614. “I think it has been accepted that the Criminal Procedure Code of Tanganyika was to a large extent based on the Indian Criminal Procedure Code and It is not unreasonable to assume that tin reproducing almost the exact words of that Code the framers of this Code must have been aware of the interpretation which had been placed on those words …….” (3) However, in English law it has sometimes been said that an acquittal on the merits is necessary to support a plea of autrefois acquit”. See for example, the dissent of Lusha J. In Haynes v. Davis, (1915) 1 K.B. 332. The majority there, however, held that no matter what the way a person obtains an acquittal he is entitled to protection from further proceedings. “I am of the view, however, that even within the principles set out by Lusha J. and acquittal under section 198 of the criminal Procedure Code or Rule 24 of the Primary Court Criminal Procedure Code, would be an acquittal on “the merits”. The magistrate before acting under this section would have had to consider whether or not he should adjourn the matter. If, having considered all the circumstances, he thought it not reasonable to grant adjournment then he would dismiss the charge and acquit the accused. He would then, in the words of Lush J., be ruling “upon the construction an act of Parliament that the accused was in law entitled to be acquitted as in law he was not guilty”, because the complainant had not appeared to prove the case …… I am much inclined, therefore, to hold that even on the principles underlying the English law of double jeopardy the accused would be entitled to succeed on a plea of autrefois acquit in circumstances such as those under consideration. The Primary Court Magistrate was undoubtedly competent to try the charge. From the moment the appellant appeared he was in peril of being convicted. The provision which permitted his acquittal could hardly be described as a technicality of law. Accordingly this appeal must be allowed. The appellant is to be released unless otherwise lawfully detained.” (4) “Magistrates should not, however, that the effect of dismissing a charge under Rule 24 of Primary Courts Criminal Procedure Code of section 198 of the Criminal may well, in the final analysis, result in failure of justice. A complainant may not appear for reasons which are perfectly valid, and, an accused person as in this case, whose guilty could otherwise be clearly established, is released. The section should be used sparingly and adjournments should normally be granted unless it is clear

(1967) H.C.D.

- 232 –

That the prosecution is delaying the final determination of the matter to such extent that it can be said that the accused person is being treated oppressively.”

263. Alli s/o Iddi v. R., Crim. App. 64-A-67, 22/6/67, Georges C. J.

The appellant was convicted of the theft of Shs. 180/-. The complainant swore that the appellant, whom she knew well, used to stay in her house. At one stage he asked her to give him her old Tanzania notes so that he could have them changed for the new ones. She gave the appellant Shs. 580/- in old notes. After some days appellant returned with Shs. 400/- new notes. Complainant said she wanted her money back, appellant agreed to repay and gave a document to that effect. In fact he did not pay and kept avoiding the complainant. She eventually reported the matter to the police and the appellant was charged. At the trial appellant put it to the complainant that the Shs. 180/- was a loan. She denied that it was. Appellant when called upon remained silent and called no witnesses. The magistrate convicted.

Held: (1) “It is quite clear that there may be circumstances in which a person might use another’s money entrusted to his custody without that other’s consent where it is reasonable to assume that consent would have been given if asked. If in such circumstances the owner of the money treats the transaction as one of loan when it is reported to him that the money has been used, then he could not later seek to take criminal steps.” (2)”On the other hand, if there was no ground for reasonably believing that the owner would have given consent for the user and if on the report of it the owner protests, the mere fact that he takes no immediate action and gives the offender time to put the matter right by payment could not change the character of the original unauthorised user.” (3) “In Tanzania a person who used money entrusted to him by another at his will may be guilty of larceny even if he had an intention to repay, but the evidence does establish that he used the complainant’s money for his own purposes. He remained silent when called upon so there was nothing to suggest that he could reasonably have though that the complainant would have agreed to his using the money if he had asked for her prior permission. The magistrate accepted the complainant’s evidence that she did no lend him the money – a not unreasonable finding in view of his silence. In those circumstances, a conviction for theft seems justified. According the appeal is dismissed and the sentence confirmed.” [Editors’ note: This case was previously digested briefly at (1967) H.C.D. n. 219. In view of its relevance to and consistency with the following case of Yusuf Salim Mkaly v. R. (1969) H.C.D. n. 264, it is here reported in full].

264. Yusuf Salim Mkaly v. R., (High Court of Tanzania) Crim. App. 444-D-69, 15/10/69, Georges C. J.

The appellant was charged with stealing by servant c/ss 271 and 265 of the Penal Code. it was alleged that on or about 7^th August 1968, being a person employed by the Tanganyika African National Union as a Regional Executive Secretary, he stole Shs. 695/- which came into his possession by virtue of his employment and which was the property of his employers. The appellant admitted taking the money which had been given to him to pay for repairs to a Land Rover. He had gone to Peramiho Mission with the Land Rover and the money but the father in charge of the repair shop had refused to take the money before some estimate had been prepared of the probable cost of the repairs. His evidence was that he had then returned to Songea where he had received a message from TANU Headquarters, authorizing him to travel to Morogoro as some

(1969) H.C.D.

- 233 –

Member of his family was sick. There was at the time no superior officer of TANU at Songea. He decided therefore to use part of the Shs. 695/- which he had in his possession to pay his fare home and while at home he used more of the money. On 13^th September 1968 he reported to TANU Headquarters and informed the head of the accounts division that he had used the money. This person told him that deductions would be made from his salary. He asked that no deductions be made during his period of leave – September, October and November, but that the whole amount be deducted in December 1968. This was in fact done. Nevertheless, on 14^th February 1969, the appellant was charged with stealing by servant and convicted. The magistrate held that the fact that the money had been refunded was immaterial. The appellant was guilty of fraudulent conversion by virtue of s. 258(2) (e) of the Penal Code, which provides that a fraudulent intent is established, in the case of money, by “an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to owner.” On appeal to the High Court, Georges C. J. referred to a number of English authorities. In R. v. Cockburn (1968) 1 All E.R. 466, Winn L. J. said: “If coins, half a crown, a 10 s. note, a £5 note, whatever it may be, are taken in all the circumstances which I have already indicated with the intention of spending or putting away somewhere those particular coins or notes, albeit not only hoping but intending and expecting reasonably to be able to replace them with their equivalent, nevertheless larceny has been committed because with full appreciation of what is being done, the larcenous person, the person who commits the offence, has taken something which he was not entitled to take, had no claim of right to take, with-out the consent of the owner and is in effect trying to force on the owner a substitution to which the owner has not consented.” The Court in that case expressly disapproved of a passage attributed to Lord Goddard C. J. in R. v. Williams (1953) 2 W.L.R. 937 at 942; (1953) 1 All E. R. 1068. The passage reads: “It is one thing if a person with good credit and plenty of money uses somebody else’s money which may be in his possession and which may have been entrusted to him or which he may have and the opportunity of taking, merely intending to use those coins instead of some of his own which he has only to go to his room or to his bank to obtain. No jury would than say that there was any intent to defraud or any fraudulent taking, it is quite another matter if the person who takes the money is not in a position to replace it at the time but only has a hope or expectation that he will be able to do so in the future ……..”

Held: (1) “In my view it must be borne in mind that theft must inevitably carry with it a connotation of fraud. S. 258 of the Penal Code defines theft thus:- “A person who fraudulently and without claim of right takes anything capable of being stolen or fraudulently converts to the use for any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing………” It is significant that in the definition of theft in R. v. Cockburn quoted above, no mention is made of the word “fraudulent”. It seems to me incredible and against all reason that a person who in the course of a journey is entrusted with a twenty shilling note to deliver to someone at the other end should be held guilty of larceny if in the course of that journey he spent that not e for his own purposes even though on his arrival he handed over a similar twenty shilling note to the person whom it had been sent to. To describe such conduct as being technical larceny appears to me to go much further than is required in order to make sure that the limits of dishonest conduct are not too widely set. Unless it was known,

(1969) H.C.D.

- 234 –

for example, that the particular twenty shilling note which had been entrusted for delivery had some intrinsic worth over and above its face value, it would appear to me that the person to whom it was entrusted could reasonably assume that the owner would have no objection to its use and immediate replacement so long as the person to whom it had in fact been sent received twenty shillings. It appears to me that here could be no theft not because there was an intention to repay but because there would exist a genuine belief, reasonably held in the circumstance that the use of he particular twenty shilling not under those circumstances would not be objected to. As I have indicated the position would be otherwise if there were specific instruction to deliver a particular not or a particular coin and if such instructions were willfully ignored.” (2)”In this case, on the facts put forward by the defence it seems clear that appellant felt that he would have obtained the permission to use the money in the circumstances which had arisen. He reported to the Headquarters of TANU that he had done so. No steps were taken against him. He was allowed to remain in the employment of TANU and he was allowed to go on leave. Arrangements were made to have the money deducted from his pay at this convenience and the money was in fact deducted. I find it impossible in these circumstances to hold that there was a fraudulent taking.” (3) “Mr. Chandu argued with much force that if this was permitted then any employee using his employer’s money could put up as a defence a reasonable belief that he could have had the money as loan if there had been a prior opportunity to make the request. This possibility does not appear to me to the alarming. If there was specific instructions that money must not be used other than for the purposes for which they have been given they obviously employed will not be able successfully to advance in his defence a belief that he would subsequently have obtained authority. In this case the reasonableness of the appellant’s belief was justified and having it deducted from his salary.” (4) Appeal allowed.)

(1969) H.C.D.

- 235 –

CIVIL CASES

265. Ngaremtoni Coffee Estate Ltd. v. Commission of Income Tax; Civ. App. 6-A-68, 23/7/69, Platt J.

The promoters of the appellant company, before its incorporation, agreed to purchase two parcels of land held for Government leases and which consisted of coffee trees, beans and a dairy. After the company’s incorporation, the Vendors transferred the land to the company’s (in terms of an agreement dated the 19^th August, 1969) which agreement was said to adopted by the company upon the Vendors in respect of land, buildings and all fixed assets on the land, ₤3,150 in respect of movables and ₤13,250 as agreed expenses incurred by the Vendors as from 1/5/64. It was further provided that the total purchase price of ₤60,000 was to consist of down payments totaling ₤20,000; and ₤40,000 was to be received y the Vendors from the crop proceeds direct. The latter were to suffer the loss or receive the benefit of any shortage or excess over ₤40,000 respectively from the crops. The purchasers also accepted responsibility for income tax liability arising from these farm operations. One of the Vendors, Hasham, was to stay on the farm until the crops had been “processed and removed.” The appellant company produced a balance sheet (from 19/8/64 to 30/6/65) and in its Income and Expenditure Accounts. Set out Shs. 800,000 as receipts from sales of produce in accordance with the agreement and Shs .265, 000 i.e. ₤3,250 as expenses under the agreement, leaving a balance of Shs. 535,000. The Commissioner-General of Income Tax disallowed the item of expenses of Shs. 265.000. The company argued that either it had purchased the land and all the crops, in which case it should be allowed to deduct expenses under Section 14(2) (f) of the East African Income Tax (Management) Act, or, if it did not purchase the crops with the land, so that the expenses were not deductible, then neither did it get an income from the sale of the coffee, in which case it was not liable to tax on Shs. 800,000. the Commissioner-General argued that he expenses of bringing the company into existence were not expenses incurred by the company and that the company having acquired the land and the crops, had then sold the crops in order that it should be able to pay the purchase price of ₤60,000, so that he was justified both in disallowing the expenses and in assessing tax on the income.

Held: (1) “The vendors had sold the whole undertaking plus expenses for ₤60,000 and although Mr. Hasham was to gather in the crops for payment to the Vendors, who were to receive payment direct, nevertheless, the property in the crops had passed to the purchasers. Only in that way did the purchasers have something with which to pay the Vendors, who were to receive payment direct, nevertheless, the property in the crops had passed to the purchasers. Only in that way did the purchasers have something with which to pay the Vendors to cover the balance of the purchase price ……. The income and expenditure account …. Clearly stated that he company had received the income of ₤40,000 as sale of produce “as per agreement”…… that can only refer to the agreement of the 19^th August, 1964 …. There fore, on the documents subscribed by the parties, I hold that the purchasers bough the whole concern for ₤60,000 including the crops.” (2) “If the appellant company had paid a lump sum down, and had then sold the crops, it would have had to pay tax on its income from the sale of the crops. The fact that the company could not pay the full price in a lump sum, but had to resort to the sale of produce in order to pay off the price, could not thereby obscure the fact

(1969) H.C.D.

- 236 –

that the money was income in its hands. It was, in truth, simply paying off the price out of what would normally be its income from produce. Therefore it could not deduct under section 14(1) of the Act the value of the payment from the coffee crop, which was a capital payment as far as the Vendor was concerned; and, nor could it escape liability on earned income received in its hands as such. It seems to me that the accountants properly recorded the sales of the produce as income.” (3) Concerning the expenses incurred by the Vendors to the sum of Shs. 265,000/-, the deduction depends on the construction section 14(2) (f) of the Act and is as follows:- “(2) Without prejudice to the operation of subsection (1) in computing the gains or profits for any year of income chargeable to tax under paragraph (a) of sub-section (1) of section 3, the following amounts shall be deducted (f) any expenditure, other than expenditure referred to in paragraph (g) incurred in connexion with any business before the date o commencement of such business where such expenditure would have been deductible under this section if incurred after such date, so however, that such expenditure shall be deemed to have been incurred on the date on which such business commenced:” (Paragraph g is not relevant). A promoter has no right of indemnity against the company which he promotes in respect of any obligation under taken on its behalf before its incorporation, and he cannot sue it upon a contract made by him with an agent or trustee on its behalf before its incorporation, even where the articles of association provide that the company shall defray preliminary expenses. The company cannot ratify an agreement purporting to be made on its behalf before its incorporation is a question of fact. (Of Halsbury’s Laws of England Vol. 6 pp. 98 and 99; KELNER v. BAXTER (1866) l. R. 2 C.P. 174; NATAL LAND etc. CO. LTD. v. PAULINE COLLIERY etc. SYNDICATE LTD. (1904) A.C. 120, to which I was referred) ……. While I agree that the purchaser could not bind the company before its incorporation, it seems to me that the only conclusion that can be drawn from the circumstance is that the company entered into a new contract with the Vendors to pay their expenses. As the transfer document shows, the land was transferred to the company for a consideration and I am satisfied that had the company not agreed to pay the expenses, the Vendors would not have transferred the land … They were expenses involved in the running and sale of the plantations crops and ……. They were such expenses as could have been deducted by the company after it commenced business. For instance, if company had been in existence and then purchased the plantations as a fresh venture on those terms, I do not see how it could be argued that they were not expenditures in connection with its business. At any rate, I have not been able to find any authority, and none was quoted, against that proposition. If then expenditure before its commencement of business is to be in the same position as expenditure incurred after its commencement of business, (though they shall be deemed to be expenditure as at the date of commencement of business) they must be deductible.” (4) Appeal allowed in part.

266. Gurbachan S. Pardesi v. Mrs. Zerakhanu J. G. Meghji, Misc. Civ. App. 7-D-69, -/9/69, Hamlyn J.

The appellant applied to the Rent Tribunal for the fixing of standard rent of certain premises; and in his evidence testified that certain rent had been paid by him since 1^st January, 1965.

(1969) H.C.D.

- 237 –

When shown a document purported to have been signed by his manger, and dated the 6^th August, 1965, which shoed the rent of the premises as Shs. 2,000/- a month, he disputed it and claimed that he actually paid a lesser sum, offering to produce the cheques by which he always paid such rent. Although given time to do so, he did not produce these cheques before the Tribunal, which then proceeded on the available evidence to fix the rent at Shs. 2,000/- per month.

Held: (1) “While it is perfectly true that standard rent in rem and that the Tribunal should consider the available evidence when fixing such standard rent, that is not to say that when a party seeking the aid of that body comes before it with only a portion of his case to set before the Tribunal, it should disregard proffered testimony and Endeavour to set up a fresh case upon other evidence which is not before it. While there may be cases in which the Tribunal might desire to call of its own motion additional evidence, such circumstances would be rare and normally the Tribunal will act upon the evidence which the applicant himself produces.” (2) “In the instant case …. The Tribunal made a finding of fact (which it was entitled to do) that rent on the prescribed date was a certain sum. There was evidence to this effect and, other than reference to certain data which were never put before the members of the Tribunal; there was nothing to contradict the figure which was found to be the rent payable on that date. The Tribunal was consequently entitled to reach the finding which it did.” Appeal dismissed.

267. Ng’washi Kamwezi v. Bunga Kulaba, (PC) Civ. App. 111-M-69, 26/6/69, Seaton J.

The appellant obtained a divorce from her husband, the respondent, under s. 169 of the Law of Persons on the ground that he had become impotent within 5 years of the marriage. While she was still married to the respondent she became pregnant by another man and the child was born seven months after the divorce. The appellant appealed against the order of the Primary Court granting custody to the respondent.

Held: (1) “The law recognizes two conditions of impotence: The first wedding night, k the husband is completely impotent. The second is when the husband is not impotent for the whole time of the marriage but he is impotent after sometime during the first five years of their married life, in which case the wife is entitled to a divorce. But when her gest a divorce in the second case the question arises: If the wife becomes pregnant, whose would the children be? If the child is born while they are married, of course it belongs to the husband. This is declared in S. 175 of the Law of Persons”. (2) “But in this case, the child was born seven months after the parents had been divorced ….. The assessors, who assisted me in this appeal and are both Sukuma elders, considered that he child belongs to the respondent. However they advised that as the child is very young, for the present it should remain with its mother, the appellant, until the child reaches a more mature age, and that meanwhile the respondent should pay for the child’s expenses. I would agree with the assessor that, according to the evidence in this case and the customary law as laid down in Government Notice No. 279 of 1963, [the Law of Persons] the child belongs to the respondent. In cases concerning the custody of children, the paramount consideration is the welfare of the child and as it is a very young female child, I would agree that for the present it should remain with the mother. But I do not think the child should remain with the mother until

(1969) H.C.D.

- 238 –

She becomes fully grown because the respondent is married to another woman and since he is married and can provide a home, there is no reason why his two children should not be together. And so, I would say that when this present baby, Bukumba, reaches the age where she is able to go to school, she should go to live with her father, the respondent.”

268. Alloys Anthony Duwe v. Ally Juyawatu Civ. Case 4-A-69, 10/4/69, El – Kindly, D. R.

The applicant – plaintiff applied for a temporary injunction under Order 37, rule 1 of the Civil Procedure Code of 1966. The applicant and the respondent where joint holders of a mining lease and engaged in the prospecting and mining of Tanzanite under a partnership agreement. The plaintiff alleged that during his absence, the respondent had been operating the mines for his own benefit and had refused to render accounts to him. The respondent produced a document purporting to dissolve the partnership. The appellant claimed that it was forged and at the time of action the validity of the document was being investigated by the police.

Held: (1) “Although the issue of jurisdiction was not particularly raised, I was asked to state whether the District Registrar has jurisdiction in such interlocutory application. It is not in dispute that my predecessor. …… considered this issue before him when he was dealing with a similar application in High Court Civil Case 4 of 1967 SHANTILAL AGGARWAL v. TARLOK SINGH DHILLON and he held that the District Registrar, as he then was, could hear such applications, and he reached his conclusion on his interpretation of Order 43 of the Civil Procedure Code 1966 as read together with rule 8, the High Court Registries Rules, 1961 (G.N. 12/1962) (amended in 1963) Cap. 453….. Upon reading rule 8 of High Court Registries quoted above, I was satisfied that the District Registrar has jurisdiction to hear such interlocutory applications. Order 43 did not amend infact it saved, the provisions of Rule 8 of High Court Registries Rules 1961. I therefore agree with the decision of my brother District Registrar in Civ. C. 4/67 and hold that the Registries have jurisdiction to hear interlocutory applications in the absence of Judges. I would agree that the English position has no relevance to us, as we are bound by our own rules.” (2) “It is clear that temporary injunctions have often being granted upon disclosure of sufficient facts of probable wastage of partnership property. And at least, temporary injunctions have been issued by the High Court in Civil Case 4 of 1967, 2 of 1968, and 33 of 1968.” (3) “The principles governing temporary injunctions have been neatly summarized in Mulla’s the Code of Civil Procedure 1908, 13^th Ed., Vol. 11 at p. 1512. Order 39, rule 1 of the Indian C.P.C. I similar to our Order 37, rule 1 of C.P.C. 1966, and therefore the Indian authorities on the subject are instructive. The granting of a temporary injunction is a matter of discretion of the court …… The court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it, there is a probability that the plaintiff is entitled to a relief, but he test is whether there is a substantial question to be investigated and whether matters should not be preserved in status quo until that question can be finally decided. It is the view of the learned advocate for the Respondent that it has not been shown that there will be any wastage or irreparable damage if the control of the mines are left with the Respondent that it has not been shown that there will be any wastage or irreparable damage if the control of the mines are any wastage or irreparable damage f the control o the mines are left with the respondent who, after all, had been responsible, since June, 1968, for developing the mines. On the other hand, it was argued that the Respondent was wasting the mines in that he is mining and disposing of the stones to the detriment of the

(1969) H.C.D.

- 239 –

Applicant, and that it is feared that the Respondent might not be keeping any accounts of his sales. In this way, there was a need that he status qou should be maintained till the dispute is finally heard.” (4) “The facts disclosed by the affidavit disclose that the existence for partnership is in dispute, and that the Respondent was using a title in their joint names for his own benefits. I am of the view that the facts disclosed show that there is a serious question to be tried at the hearing and that there is a probability, if it is finally proved that the alleged dissolution agreement was false, the Applicant might be entitled to some relief’s. It is also clear that he Respondent who is in control of the mines, is in fact mining and selling the stones for his own benefit and the allegation that the Respondent might not, ultimately, disclose the details of his operations, is not illusory. There is, therefore some sound grounds for granting the temporary injunction.” (5) Temporary injunction issued against the Respondent/Defendant until the suit disposed of.

269. Rockland International Corporation v. Alloys Anthony Duwe and another, Civ. Case 13-A-69, 28/6/69, Platt J.

The two respondents, Duwe and Juyawatu were joint owners of a mining claim. The first respondent had agreed to transfer to the applicants a quarter interest of the whole claim. This agreement was more favourable to the applicants, because although the applicants were really to under take the mining operations, only the applicants’ company was permitted to terminate the management contract. The scheme envisaged by this agreement appeared to be that the applicants shall carry out mining as far as half the claim was concerned but that in as much as it was understood that the first respondent was a joint holder of the claim with the second respondent, he was still beneficially entitled to a half share n all the proceeds of the claim. Presumably, the second respondent was equally so entitled to a share of all that the applicants and the first respondent mined. The transfer of one half of the first respondent’s share to the applicants was refused by the commissioner for Mines for three reasons. The first two were complied with but he third one, namely the second respondent’s consent to the transfer, was not forthcoming. The applicants asked the court for a temporary injunction with regard to their agreement with the first respondent, seeking to restrain him from infringement thereof by closing down the mines. The injunction was sough to be operative pending the hearing of the suit.

Held: “On the basis of Duwe’s claim that he and Juyawatu mined the claim in partnership, then on the authority of section 210 of the Law of Contract (relating to Partnership) though Duwe could transfer his share in the partnership, he could not entitle his assignee during the continuation of the partnership to interfere in the management or the administration of the partnership business or affairs nor was he entitled to allow the assignee to look into the accounts of the partnership. The assignee was only entitled to a share of the profits. On this basis then the agreements between Duwe and the applicant appear to infringe Juyawatu’s right as a partner. I am now told that there was in fact no partnership at the time the agreements in the present case were made. However that may be, the result of the agreement between Duwe and Juyawatu settling their differences which brought the injunction to an end and apparently the settlement of suit No. 4 of 1969 itself, had the effect of necessitating the presentation the instant proceedings, if the applicant was going to justify his contracts with Duwe.”

(1969) H.C.D.

- 240 –

(2) “When a prospector wishes to get a right to prospect, the Commissioner may issue a prospecting right “to any individual in his own right or as agent for another, or as agent for a partnership or company.” (See section 12 (1) of the Mining Ordinance 1964). Then when a holder of a prospecting right pegs a claim, he must apply within 30 days for registration of the claim. (See section 31 of the Ordinance). It that is accepted, he then becomes the registered holder of the claim. By virtue of section 2 of the Ordinance, a “claim” means a portion of land lawfully taken possession of for the purpose of prospecting and mining, and though it includes a disc claim it does not include land comprised in a mining lease. Thus the holder of the registered claim is licenced to go upon the land and entitled to take therefrom minerals which he may find. He has the right to possession of the land but has no other interest in it. As far as I can see from the scheme of the Ordinance, there should only be one registered holder of the claim but he of course, hold it on behalf of another person, partnership or company. I am not clear on what authority prospecting rights and mining claims are registered jointly in the names of more than one person, as seems to be the practice adopted by the Commissioner at present. In the instant case, it is clear that the Commissioner did grant the mining claims over two pieces of land to Duwe and Juyawatu jointly, and I think that arising out of that, much of the difficulty in this case has arisen. Consequently a good deal of argument has been addressed to me on the basis that the respondents are either joint tenants or tenants in common or co-owners of the mining claimed. But it seems to me that they are at best joint holders of a claim gibing them possession of land for the purpose of mining and no more. How they organize their mining operations, whether by way of agency or partnership or in a company, ought to have been disclosed in their application for prospecting rights so that the Commissioner would understand their position. (See Form No. in Schedule One, in the Ordinance). It is provided that the holder of a registered claim may, in the prescribed manner, divide his interest in the claim into such shares as he shall think fit and may allot shares or may transfer the claim or create or transfer any interest therein. And then in paragraph 33(1) (b), the holder shall register such transfer, allocation or interest with the Commissioner within 30 days of such transfer, allocation or division of interest. The section would appear to give the registered claim holder wide powers and where he is the single holder holding on behalf of himself, no doubt, the section can be operated fully. But it is difficult to see how he can transfer more than his beneficial interest where he is merely the joint holder of a claim. It is not difficult to envisage the substantial conflict of interest arising where one joint holder may be forced against his will to accept other persons operating the claim with him if his fellow joint holder can simply transfer the whole of his right to a third person. It is understandable, therefore, that the Commissioner refused to register Duwe’s claim to the transfer of a half his share to the applicant in the terms of these agreements without the concurrence of the respondent Juyawatu. It may be that it is arguable that the Commissioner was acting outside his powers. But if this was a joint holding of a claim, I cannot see that

(1969) H.C.D.

- 241 –

Duwe could unilaterally cut down Juyawatu’s interest in the claim. Moreover, it may well be that section 65(b) of the Mining Ordinance Amendment Act No. 22 of 1969 did permit the Commissioner to refuse to allow the transfer of Duwe’s claim or half thereof, if it was understood that the applicant was then in effect asking to be granted the full rights of a claim holder at least to a quarter of the whole. If, of course, Juyawatu had accepted that position and the claim was then re-registered, all may have been well. But he did not accept that situation. I do not see that on grounds of principle or convenience Duwe could enforce Juyawatu’s concurrence. If this was a joint claim, then all that Duwe could assign was that interest which he had in it, which would not conflict with Juyawatu’s interest. In my opinion, that does not defeat section 33. as we have seen the terms are wide but they could also cater for the situation in which Duwe found himself. Therefore, under the present system operated by the Commissioner, which may be doubtful, nevertheless, joint holders of the claim can only operate within the limits of their interests. In my opinion, therefore, it seems very doubtful that the applicant could enforce his contractual position with Duwe as against Juyawatu. It follows that he must be left to his remedy in damages, if any, against Duwe and that I should refuse to order an injunction restraining Juyawatu from continuing to mine in accordance with his rights.” (5) Application dismissed with costs.

270. Akber Merali Alibhai v. Fidahussein and Comp. Ltd. and others Civ. Case 41-D-67, 3/9/69, Duff J.

An earlier suit between the same parties was dismissed in the defendant’s favour on a preliminary point raised that as the plaintiff was a partner he could not sue his co-partners as debtors until such time as the partnership had been dissolved and accounts taken. The plaintiff then instituted the present suit seeking, inter alia, a declaration that the partnership be entered into with the defendants be dissolved. The defendants argued that as the present claim could have been raised in the earlier proceedings even as an alternative, the claim for dissolution of the partnership was barred by Section 9 of the Civil Procedure Code, as being res judicata. The plaintiff argued that the earlier suit referred to a claim for salary, while the present one called for dissolution of the partnership and the taking of accounts, and the issue was therefore not res judicata.

Held: (1) “The Indian authorities relied on by Mr. Lakha support the contention that where a previous suit is dismissed a subsequent suit on the same cause of action is not maintainable. They also indicate that parties to litigation are required to bring forward their whole case and are not permitted, except under special circumstances, to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest (in the earlier case) but which was not brought forward through negligence, inadvertence or even accident (vide Henderson v. Henderson, 67 E.R. 313 at P. 319).” With these principles I respectfully agree.” (2) “Turning to the allegations which are disclosed in the pleadings, it appears that there is a dispute as to whether the partnership was dissolved or not. If the partnership was dissolved before the 17^th July 1965, when the plaint was filed in the earlier suit, then I would be inclined to the view that the contention of re judicata would succeed. Assuming for the moment that it was not dissolved, was the plaintiff obliged in the earlier suit to seek dissolution of the partnership and an enquiry into accounts etc.? Was he not

(1969) H.C.D.

- 242 –

entitled, if he so wished, to allow the partnership to continue and to seek an account without asking for a dissolution of the partnership? Certainly under the provisions of section 194 of the law of Contract Ordinance, Cap. 433, he could have sought relief without applying for dissolution which he is now seeking and it is this view which impels me to hold that without going into evidence it would not be proper to uphold the objection raised on behalf of the defendants.” (3) Action to continue.

271. Sakaya s/o Kingesler v. Long’idu s/o Ngitalangie, Civ. App. 4-D-67, 27/8/69, Hamlyn J.

The appellant was a party to proceedings in the primary court, judgment whereof was delivered on 31^st December 1965 and the matter then came before the district court where judgment was given on 28^th January 1966. Since then the unsuccessful appellant did nothing until 20^th June 1967, when he asked for leave to appeal out-of-time against the judgment of the district Court. The reason stated for the delay was lack of money to pay the court fees.

Held: (1) “Such a plea can hardly form a basis of any substance on which to ask for an extension of time …… he might have applied to file his petition of appeal in forma pauperis had he so desired, but to sit immobile for a year and a half cannot recommend him much to the discretion of this Court.” (2) Application dismissed.

272. Mrs. Malek P. Manji v. Mrs. Halima M. Hizam, Civ. Rev. 5-D-68, 3/9/69, Duff J.

The respondent instituted proceedings in the District Court. The suit was then withdrawn on the respondent’s liberty being given to file a fresh suit. Instead of the prescribed costs amounting to Shs. 380/-, costs of only Shs. 75/- were awarded, and no reason was given why full costs were not ordered. The appellant applied for revision under Section 79 of the Civil Procedure Code, 1966. The respondent argued that the order made was appealable, but no revision lay.

Held: “The answer lies in a ruling of Biron J. in Civil Revision No. 7 of 1965, Khaku and others v. Dharamsi and another. The learned judge in the course of his judgment said as follows:- “The provisions of section 39(1) (b) of the Magistrates” Courts Act are even wider than the repealed section 10 of the Subordinate Courts Ordinance which it replaced, in that it expressly confers additional powers on the Court, commencing with the words ‘In addition powers on the Court, commencing with the words ‘in addition to any other powers in that behalf conferred upon the High Court, the High Court may ……” I therefore have no hesitation in holding that section 39 (1) (b) confers on the High Court additional and much wider powers than those contained in section 115 of the Civil Procedure Code and is not subject to any words of limitation contained in the latter section. To my mind to limit the powers of the Court in revision to cases wherefrom no appeal lies would stultify the powers of the Court to precede ex sui motu, as considerable time may well elapse – long after the time for appeal has expired – before a case which calls for revision even comes to the notice of the High Court. I therefore hold that this Court has the power to deal in revision with an order of the district court although an appeal will lie from such order.” With these enunciations I respectfully agree and there can be no doubt that the applicant is entitled to the full award of costs which were

(1969) H.C.D.

- 243 –

273. Salehe Arepi v. Mohamedi Khan, (PC) Civ. App. 95-D-69, 14/8/69, Hamlyn J.

The appellant, a Pakistan, was said to owe the respondent a half caste Arab, a sum of Shs. 1,000/-, in respect of a loan by the latter. Both the Primary and the District Courts held for the respondent. The appellant appealed to the High Court on the grounds that the primary court had no jurisdiction to try the case on the grounds (inter alia) that the respondent was an Asian and that no customary law was involved in the case.

Held: (1) “The Magistrates’ Courts Act makes no distinction between persons of various race, and such consideration has nothing to do with its jurisdiction. Persons of any nationality can seek its assistance, provided that the court is competent to hear their cases.” (2) “In so far as the second contention is concerned – that no customary law is involved in the matter – that is perfectly true. Learned counsel referred the Court to the case of Desai – v – Warsama (1967) E.A.L.R. 351, which is a decision of my own, wherein the Court said: “Customary law cannot be the basis of any decision or found any proceedings between the parties who meet on no common ground of legal procedure and jurisprudence …….” Since the date of that decision, the Magistrate’s Courts Act has been amended by the Written Laws (Miscellaneous Amendments) Act, 1968, the first schedule of which now provides jurisdiction to Primary Courts for proceedings of a civil nature:- “for the recovery of any civil debt arising out of contract, if the value of the subject matter of the suit does not exceed one thousand shillings, and any proceedings by way of counter-claim or set-off therein of the same nature and not exceeding such value.” In the instant case, the claim is of exactly one thousand shillings, it being in the nature of a loan and consequently a contractual debt, and in view of the amendment to the Act which confers powers upon Primary Courts, such court has jurisdiction in the matter.” (3) Appeal dismissed.

274. Mwehela Kibungo v. Mudabe Muhungula, (PC) Civ. App. 48-M-69, 17/4/69, Seaton J.

The respondent moved from his father’s village to that of his uncle, the appellant, who allowed him to settle upon and cultivate a piece of his land. The respondent had four wives and numerous children. He grew cassava and bananas and built five houses on the plot. The appellant, who dispossessed the respondent, claims that he only allowed the respondent to live on the land and did not transfer to him any rights over the land. The respondent alleged that he had bought the land from the appellant. When the respondent began building the houses, the appellant called two witnesses on the land, allegedly to witness that the land had not been sold. They were not shown the boundaries of the land nor were they offered money or a drink.

Held: “According to the laws applicable for buying shambas or portions of land in Kasulu District among the Waha tribe, the lad being sold including its boundaries should be seen and verified by the people who appear as witnesses. The witnesses are supposed to know the boundaries clearly and they should also be given pombe to drink or money be distributed between them in lieu thereof for the purpose of making sure and confirming the selling of the land.” In this case, therefore, no sale took place. (2) “It would be manifestly unfair that a man who had been given land and who expended labour in cultivating and improving it and in building five houses thereon, should be summarily dispossessed merely at the whim of the original donor. There is no allegation that he land is being misused by Mudabe and it has been found by the lower courts that Mwehela has another shamba on which he cultivates.” (3) Appeal dismissed.

(1969) H.C.D.

- 244 –

275. Regional Land Officer, Tabora v. Harub Haited, Civ. App. 159-M-69, 18/9/69, Bramble J.

The appellant/plaintiff, the Regional Land Officer, Tabora, sued the respondent for arrears of land rent to the extent of Shs. 600/- for the period 1962 to 1966. He obtained judgment for 1965/66 and the learned Resident Magistrate held that the rent for 1962 to 1964 inclusive was statute barred. This is an appeal against that decision.

Held: “The only question …….. is what is the period of limitation for suits by or on behalf of the Government of Tanzania. In Rajani v. Waring (4) (1963), 1 T.L.R., 574, it was held that by virtue of article 149 of the Indian Limitation Act, 1909, the period of limitation in respect of suits by or on behalf of the Government is sixty years. The appellant is an officer designated under section 2 of the Government Suits Ordinance to sue on behalf of the Government of Tanzania, and in Patel v. Commissioner of Income Tax (1961) E.A.L.R., it was held that the limitation prescribed by section 149 should apply in the case of an officer so designated. On these authorities, it is clear that article 3 of the Indian Limitation Act which limits the period for recovery of rent to three years does not apply in the instant case and that the limitation period is sixty years. There was, therefore a misdirection in law.” Appeal allowed.

276. Salehe Mahamburi v. Noseni Mrinda, (PC) Civ. App. 62-D-67, 22/9/69 Georges C. J.

This is a dispute over a piece of land in Pare, which the defendant had taken and sub-divided among tenants, but which the plaintiff claimed to have inherited from his grandfather. The Primary Court found for plaintiff, but the District Court reversed on the grounds that the defendant, as the person in possession, did not have to prove anything. It was for the plaintiff to prove his title, which he had failed to do.

Held: “Looking at the matter from the point of view of English land law, I would agree with the view expressed by the District Magistrate. Proof of title here is, however, quite a difficult thing where there are no deeds showing ownership of customary land and seldom any documents evidencing a transfer. To decide cases on the basis of onus of proof, as in England, is not desirable and would certainly no to be understood. I would, therefore, reverse the decision of the district Magistrate and order a new trial before the Primary Court. If the parties do not call the Mlao who originally is supposed to have authorized the defendant to distribute the land, then the court should call him. The petition of appeal states that he is still alive. The persons actually in occupation of the land should also be summonced by the court I the parties do not call them. There will then be available enough material on which justly to arrive at decision of this case. It must be understood that parties are note legally advised in litigation in the Primary Courts. All efforts should be made, therefore, to have all the facts brought out, rather than to depend on rules as to burden of proof – which operates fairly when legal advice is available to both sides, but not other-wise.”

277. Jackson Lesirango v. Pantaleo KirboI, (PC) Civ. App. 108-D-67, 26/8/69, Georges, C. J.

The plaintiff, a schoolboy of 14 years, sued the defendant in respect to a piece of land in Kilimanjaro district, which defendant planned to sell, but which plaintiff claimed as his own.

(1969) H.C.D.

- 245 –

Both parties claimed to have inherited the land from a certain deceased person, who was the full brother of the defendant, and also the father of the defendant, and also the father of the plaintiff’s mother.

Held: (1) “I am not aware what the present practice is but would rule that in cases where it is necessary for a young child of that age to sue in order to protect a legal right, or where it may be necessary to sue him in order to do so, his legal guardian should sue or e sued as the representative of the child.” (2) The defendant was successful before the District Magistrate who held that it was clear law that if there were males in the clan, widows could not inherit or give away land belonging to the clan …….. The burden of the plaintiff’s complaint in the memorandum of appeal was that the defendant had not behaved properly towards the deceased …… This does not, in m view, affect the validity of the argument advanced by the District Magistrate that a widow cannot inherit clan land when there are male relatives of the clan eligible to inherit.” (3) Appeal dismissed.

(1969) H.C.D.

- 246 –

CIVIL CASES

278. Margovind Savani v. Juthalal Velji Ltd., Civ. Case 25-D-69, 14/5/69, Saidi J.

A summary suit on a foreign bill of exchange was filed by the plaintiffs. The defendants a company with limited liability filed an application under Order 35 rule 3 of the Civil Procedure Code, 1966, for unconditional leave to appear and defend the suit. Their application was supported by an affidavit sworn by one of their directors. It was contended on behalf of the plaintiffs, by way of a prelim nation objection, that the affidavit in support of the application was incompetent and defective and that the application could not be granted on the strength of it. On the hearing date the defendant came with a fresh affidavit sworn by the same deponent and verbally applied for leave to amend, substitute or re-swear the original affidavit.

Held: (1) “The application is in substance one for amendment ……… The courts are normally disposed to allow amendments of pleadings to enable parties to frame their cases properly for a decision.” (2) “It was definitely a mistake to draw and swear an affidavit as a statutory declaration. I do not think that the Oaths (Judicial Proceedings) and Statutory Declarations Act is meant to apply to affidavits despite the fact that there is no Tanzanian Ordinance or Act governing the procedure of drawing and swearing affidavits. Both affidavits and statutory declarations are written statements solemnly made on oath as true facts on the knowledge, information and belief of the deponent or declaring. In affidavits must distinguish facts that are true to his knowledge from those that he thinks or believes are true to his information and belief and in the later group of facts he must also disclose the sources of his information as well as his grounds of belief. This however, is not an essential requirement of a statutory declaration”. (3) “I do not think that it could be maintained that this Court has not the power to order the deponent of the affidavits to give oral testimony on oath in amplification of or in support of either or both of his affidavits, and if this reasoning is correct it would seem logical and fair that the Court can regard the supplementary affidavit.” (4) “The application of the defendants to amend their affidavit should be granted subject to the payment of the costs of the other side up to date. If a party can amend his pleading by leave of court so as to be able to correct errors by omission or commission there is no reason why he should not be allowed to amend his affidavit by correction of errors or by supplementing what has been omitted in it. Leave to amend granted.

279. Mzee Abubakar v. Salum Selemani & another. Misc. Civ. App. 15-D-69; -/9/69; Hamlyn J.

The appellant appeals against a decision of the Rent Tribunal made on two applications for the fixing of standard rent on two sets or premises. The Tribunal set the rent at 30/- a month for each room on the first application and 120/- a month total on the second application. The order of the tribunal stated that the landlord was to re-apply for “full standard rent” after executing repairs. During the hearing

(1969) H.C.D.

- 247 –

There had been allegations that repairs were needed but no estimate was made of the cost.

Held: (1) “This mode of dealing with the matter is clearly incorrect, for application was made for the fixing of the standard rent and not for some “diminished” rent. What the Tribunal should have done is to have fixed the standard rent properly and then (if there were evidence on which it could act with regard to repairs) to have set some lower figure payable until the repairs were carried out. Even so, I would point out that such procedure is strictly applicable only on the request of the tenant and there was none here…….. Once rent has been settled for the two premises and recorded by the Tribunal, in view of the allegations (albeit no very specific) of the need of repairs required to the premises, if these are repairs properly carried out either by agreement or by custom by the landlord, I think that the Tribunal might deal with this matter under section 4(5) of the Act, by regarding the complaints as to repairs by the tenants as notional applications under the section. The Tribunal could then make an Order as to the amount of rent payable until such time as the repairs have been carried out by the landlord (f they are in fact to be done by him). The standard rent must of course be fixed first and thereafter the reduced rent should be ascertained after considering he factors governing the state of the property.: (2) “Standard rent fixed at 50/- for each room on the first application, second/application sent back to Tribunal for determination on evidence or view of premises”.

280. Tumanieli v. Aisa d/o Issai. Civ. App. 119-D-67; 18/11/69; Georges C.J.

The plaintiff claimed damages under Chagga law for defamation based on a false allegation of theft. The plaintiff succeeded in both counts below.

Held: (1) “That Chagga customary law did provide that any one who made an allegation of theft against another and failed to prove it should pay compensation for the damage done to the good reputation of that other. What limitations there ere on this general proposition are not clear. I think there should be limitations on this general proposition as otherwise problems will be caused in this rapidly developing society.” (2) “Where there is reasonable suspicion that as offence has been committed and good grounds for thinking that a particular person is responsible it is the duty of every citizen to pass on such information as he has on the matter to the police to help them to find the offender. If the police act on such information and arrest anyone then the person who has given the information should not be liable for damages for defamation unless it is plain that he had no good grounds for suspecting the person named and that he was acting spitefully.” (3) “In this way a proper balance can be drawn between the duty of the citizen to help the police in the detection and punishment of offenders and the right of each person not to be accused of an offence except on good ground. Since the Criminal Law requires that offences must be proved beyond reasonable doubt where will be cases in which a Court will acquit because it does not feel sure enough though the evidence is strong enough to raise a great suspicion. In such cases the person who made he accusation should not be punished by being made to pay compensation. Similarly there will be cases where the police take a person into custody for investigations and the person given an explanation which seems quite reasonable and no steps are taken. Again in

(1969) H.C.D.

- 248 –

such a case the accuser should not be charged unless it can be shown that he deliberately made a false report to police. (4) “There would be other cases in which people might go about the village saying that a particular villager is a thief. That is a different matter. Once the statement is proved false the spreading it would have to pay compensation. A distinction must make between that sort of accusation and a report to the police intended to lead to the investigation of a crime and the punishment of a suspected offender. There should be no compensation payable in such a case unless the report is shown to be false and prompted by malice.” (5) Appeal dismissed.

281. Mussa Chegere v. Marwa Nyanchama. Civ. App. 216-M-69; 18/11/69; Bramble J.

The appellant married the respondent’s daughter in North Mara and paid pride price of 39 cattle. She died about one month after the marriage. The appellant claimed that 19 head of cattle had been returned to him leaving 20. He now claims to be refunded cows, 250/- he paid in tax and a sheep he had slaughtered for the respondent. The trial magistrate took note of section 80 of the Law of Persons which provides that when a wife dies, a husband is not entitled to a return of the bride price. He found, however that the respondent had agreed to return half the remainder of the bride price and made an order for 10 cattle. The district court quashed the order.

Held: (1) “An agreement is enforceable in law only where the party seeking enforcement has given something to the other party that is where he has suffered some disadvantage for the benefit he seeks. The respondent was under no obligation to make any refund and in exchange for the refund the appellant was conceding nothing. The agreement was not, therefore, legally enforceable. Moreover if parties make a contract outside the law they cannot hope to get the assistance of the courts. (2) Appeal dismissed.

282. Mazunguewa d/o Chilennu v. Mwango s/o Chilennu. Civ. App. 260-D-68 31/10/69; Georges C.J.

The appellant was the sister of the respondent, not born of the same mother but having the same father. They were both Wagogo. On the marriage of the appellant’s daughter 16 cows and 24 goats were given as dowry. Of these, 4 cows and 3 goats were given to the mother of the appellant as her share of what is called “upande wa kushoto”. The respondent claimed that as the appellant had no brothers on the maternal side, he, as paternal brother, was entitled to receive the entire share of the dowry belonging to the “upande wa kushoto”. He succeeded in both courts below and the appellant challenges these decisions.

Held: (1) “The Customary Law Declaration Law of Persons GN. 279/63 – made applicable to Dodoma District by GN 303 of 1963 provides as follows …..[the judge then quoted the sections] “It is quite clear from this that the person responsible for receiving the brideprice and distributing it is the father. In this case the respondent sued the mother. I do not think he was entitled to do so. Accordingly the action should have failed from the beginning as the wrong person had been sued. If the respondent has in fact taken any animals from the appellant he is to return them to her”. (2) “It is quite likely that he respondent may, as a result of this judgment, decide to begin this action all over again by filing a suit against the father

(1969) H.C.D.

- 249 –

for this share of the “mahri ya upande wa kushoto”. I would take this opportunity, therefore, to state that this alleged Gogo custom of allocating a fixed and fairly substantial share of the dowry to the maternal uncle of the brie seems unreasonable. He may have taken no part nor may he have expended any effort on the upbringing of the girl whose dowry is being paid. It seems sheer exploitation in such circumstances to claim a significant share of the dowry on the basis of customs which must have been formed when conditions were substantially different from what they are today. The rule in the Customary Law Declaration quoted above that the distribution of the dowry should be left to the father and should depend upon agreement between him and the other relatives seems to me excellent and to reflect the developing spirit of modern days. It is of the greatest importance to maintain the solidarity of the family group. This, however, can only be based on the mutual rendering of assistance among members. When benefits are to be shared, this can be done with regard to the degree with which attention and assistance have been given in the past, not merely on the strength of the relationship itself”. (3) Appeal allowed and the animals to be returned to the appellant.

283. Re Innocent Mbilinyi, deceased. Prob. & Ad. 50-D-68; 31/10/69; Georges C.J.

The Administrator General applied for directions concerning question which have arisen in the course of the administration of the estate of Innocent Mbilinyi deceased. The affidavit in support states out that the deceased, a Roman Catholic by religion and Mngoni by tribe, died in an accident on 29^th February 1968. Surviving him were his widow Elizabeth whom he married by Christian rites, three infant children of the marriage, his father, his mother, four brothers and five sisters. The deceased died intestate and accordingly the succession to his prop could be determined either by the customary law of the Wangoni as set out in the Customary Law Declaration G.N. No. 436 of 1963 or according to the law applicable o Christians who die domiciled in Tanzania, that is to say the Indian Succession Act. The widow, through her advocate contends that the Indian Succession Act is applicable while the father and the brothers and sisters state that customary law is applicable. Leave was given to the widow and to the brother Hustiene to file affidavits setting out facts from which the mode of living of the deceased could be inferred. The widow has filed an affidavit. Despite several adjournments to enable him to do so no affidavit has been filed by Hustiene or by any of the brothers and sisters. The widow is a Mchagga by tribe and also a Roman Catholic. She says that she had learned from her husband that he had left Songea when he was about 7 years old and had been educated entirely outside the Region. In or about the year 1956 he went to Makerere College where he graduated as Bachelor of Arts in 1960. In 1961 he took up employment with Shell E.A. Ltd. as a salesman and after training was stationed in Moshi. That very year he was transferred to Dar es Salaam where he met her. In March 1962 they were married and thereafter lived in Mbeya and Moshi. In 1964 the deceased joined Government service and was in 1967 promoted Deputy Director of the State Lottery. She avers that the fact that the deceased and herself were of different tribes helped to separate both of them from their tribal backgrounds. The elders of both of them from their tribal backgrounds. The elders of both tribes appeared to disapprove of the attachment and the subsequent marriage. She states that the deceased had very often expressed his happiness

(1969) H.C.D.

- 250 –

at the fact that they were both Christians and had made it clear that he did not wish to have any of his affairs regulated by customary law. She had visited her husband’s family once in 1962 and she describes her reception as cool if not actually unfriendly. They visited again in 1964. Apart from these visits she was not aware that there had been any contacts between the deceased and his relatives. As far as she was concerned the deceased relatives were strangers. Neither during the lifetime of the deceased nor after his death had they ever visited her nor had they ever brought gifts for the children or attempted in any way to win their affections. She states also that the deceased had told her that he had made her the beneficiary under two policies of insurance on his life. Those policies are the principal assets in the estate. Neither policy was in fact ever assigned to the widow, but in one of the policies the deceased names her in the application form as his proposed beneficiary.

Held: “On these facts which are in no way contraverted I am satisfied that it can be said that the deceased had abandoned the customary way of life in favour of what may be called a Christian and non-traditional way. There is satisfactory evidence that he was to a large extent alienated from his family and that his children had no connection whatever with them. Accordingly I would direct that the law to be applied in the administration of the estate of the deceased should be Indian Succession Act.”

284. Attitlio v. Mbowe Civil 95-D-69; 6/9/69; Georges C. J.

The plaintiff is the lessee of the Splendid Hotel on Independence Avenue, Dar es Salaam. The defendant is in possession of three rooms in the hotel as well as the bar area which he operates as bar and night club. In the plaint, the plaintiff claims among other remedies vacant possession of the three rooms and the Bar premises as well as an injunction to restrain the defendant, his servants and agents from using the 3 rooms, Bar premises, night club premises. On the filing of the writ the plaintiff applied for and was granted a temporary injunction restraining the defendant from running the bar and night club. Later a stay was granted. The issue for determination was whether the temporary injunction should continue until trial or not.” The Bar and night club had been closed since March 1969. Negotiations were in progress between the plaintiff’s attorney and the defendant for the sale of the business. The plaintiff alleged that he had given the defendant an option to purchase exercisable by 10^th June, that he defendant was to pay the purchase price by that date, that he had obtained possession on the basis of a false representation that he was able and willing to pay that amount and had not in fact done so. The defendant claimed that they had agreed that a proportion of the price was to be paid on signing the agreement for sale, and the remainder by instalments, and that on those terms he was lawfully in possession of the property under a contract of sale. The jurisdiction of the Court to grant temporary injunctions is governed by s. 68(c) and Order 37 Rules 1 & 2 of the Civil Procedure Code.

Held: “It would appear to me that this case fits more aptly under the class of cases covered by the provisions of Rule 2. The plaintiff has in effect alleged a trespass and is asking for temporary injunction to restrain the continuance of that trespass pending the determination of the suit.” (2) “It is generally agreed that here are three conditions which must be satisfied before such an injunction can be issued:- (i) there must be serious question to be tried on the facts alleged, and a probability that the plaintiff will be entitled to the relief prayed; (ii) that the Court’s interference is necessary to protect

(1969) H.C.D.

- 251 –

the plaintiff from the kind of injury which may be irreparable before his legal right is established, and (iii) that on the balance there will be greater hardship and mischief suffered by the plaintiff from the withholding of the injunction than will be suffered by the defendant from the granting of it. The first condition is satisfied in this case. There are serious question to be tried as to the terms of the contract of sale entered into between the plaintiff’s agent and the defendant. There is the issue as to whether the defendant did obtain possession of the portion of the premises which he now occupies because of fraudulent misrepresentations on his part. If the facts deposed by the plaintiff’s agent can be established, then the plaintiff would be entitled to the relief she claims. The second condition poses greater difficulty. The Court must be satisfied that the damage which the plaintiff will suffer will be such that mere money compensation will not be adequate.”…. a temporary injunction will normally be granted …… only if the whole point of the perpetual injunction claimed would be defeated if the temporary injunction is not granted. A striking illustration would be a suit praying for a perpetual injunction to restrain a defendant from interfering with one’s enjoyment of a right to light by erecting a tall building close up to one’s boundary. If a temporary injunction were not ranted in such a case and building allowed to continue and the access to light seriously cut off, then the whole purpose of the perpetual injunction would be frustrated. I do not think that the whole purpose of the final injunction here claimed would be frustrated if a temporary injunction were not granted now. On the other hand it could be argued that granting the injunction may amount virtually to deciding the issue now against the defendant since he will be deprived of the possession which he claims to have been lawfully given to him under a valid contract. If this can be the effect of an injunction it should not normally be granted. I am not satisfied that the plaintiff would suffer loss which could, in any sense, be termed irreparable if the injunction is not granted. He himself has quantified his loss at Shs. 700/- a day for rent, water charges etc. should he succeed the defendant will have a judgment entered against him for such of the damage as can be proved and the plaintiff will have recuperated his loss. I would hold, therefore, that the second pre-conditions to the grant of a temporary injunction has not been established.” (3) “It is unnecessary, therefore, to consider the third pre-condition – the balance of convenience. The primary consideration there is the maintenance of the status quo pending the determination of the action. The status quo, in my view, is the status quo at the date of the filing of the action. This can be maintained without the granting of a temporary injunction in the terms claimed. The defendant must not occupy any more of the hotel than he has been allowed to and not to interfere with the plaintiff’s use of such parts of the premises as have not been handed over to him.” (4) Temporary injunction refused. Action to be brought to trial forthwith.

285. Lesso v. Neiliang Melita. Civ. App. 120-A-68; 1/10/69; Platt J.

The appellant, Lesso sued the respondent Neiliang for compensation. The appellant was a tenant on the respondent’s land until evicted by him. He claimed compensation for improvements, namely, bananas and a lemon tree. There was evidence that Neiliang had told Lesso to uproot the bananas when he started to plant them.

Held: (1) “There have been a number of cases before the courts showing that parties disputing the title to land very often do not also claim compensation in the event of their losing the land. Claims for compensation are then taken later

(1969) H.C.D.

- 252 –

on. Therefore, simply because the earlier cases did not deal with the issue of compensation that did not show that compensation could not be claimed by Lesso after the appeal to the High Court was completed. Accordingly, I would disagree with the Primary Court and the District Court, where it was held that the claim for compensation brought by Lesso was res judicata.” (2) “On the other hand, considering the question of compensation, on the basis that Lesso was a tenant, it is clear in the first place that Lesso was not entitled to plant permanent trees. He was only entitled to use the eland for planting crops. If he wished to plant permanent trees, then he had either to seek the permission of the land owner, or if the land owner gave him tacitly to understand that he did not mind the land being used in that way, then he was entitled to claim for some compensation. Secondly, if there were crops still standing in the shamba, Neiliang had to allow Lesso to harvest them. It appears in this case that as far as bananas are concerned, Neiliang objected to Lesso planting them, and therefore no compensation can be claim for them, because it was as a result of Lesso’s planting those trees that the first case was brought. Nothing is said about the lemon tree, and it appears therefore that as Neiliang lived nearby, he must be understood to have allowed that tree to be planted. Concerning the other crops, there is very little evidence to suggest that they were planted. But even if that were so, it is to be seen from Neiling[‘s evidence that Lesso was allowed to be on the land for a further two years. During that time, it was quite possible for Lesso to have gathered all his crops. Therefore, it is difficult to see that he had a just claim of or compensation as to those things. There is finally the question of the house and that appears to be a matter on which Neiling ought to pay compensation. In Neiling’s evidence he did not dispute that he was liable to pay some compensation……. I am quite satisfied therefore that Lesso’s claim is wildly exaggerated and that if he is to have compensation at all, it should only be for the house and the lemon tree.” (3) Case remitted to Primary court for assessment of compensation.

286. Peter Merishoki v. Barnabas Kiriri. (PC) Civ. App. 98-A-1967, 4/7/69, Platt j.

Peter, the appellant, sued Barnabas, the respondent, for title to a piece of land which he claimed his grandfather had bought from one Sumbucha. Peter’s case was that the land had been used by his family since the time of his grandfather for growing cocoyams, but he could not say how his grandfather had obtained the land. Barnabas proved that he had acquired title to the land on wither side of Peter’s shamba through his father Kiriri who had bought it from Mkerewe. He claimed that the sale had included the land now occupied by Peter and that Peter had continued to occupy the land for the previous fifteen years. Only because Kiriri had allowed him to do so.

Held: “The salient facts seem to me to show that Peter and his family appeared to have been left in undisturbed possession for something like three generations. The fact that Kiriri did not remove Peter and then Barnabas failed to remove Peter, leaving him in possession altogether for some fifteen years strongly suggests that Peter must have acquired some title to the land …. “ (2) “I agree with the District Court that Peter proved no root of title and it may well be that no custom exists, such as the Primary Court thought did exist, concerning

(1969) H.C.D.

- 253 –

the cultivation of land near a spring. It would have been better had there been evidence that such a custom existed before the Primary Court relied upon it. It is sometimes said, often with justification that the assessors and Primary Court Magistrate are aware of and act upon local customs without actually spelling them out in giving their decision. But is a sound principle that if the Primary Court wishes to rely on a custom or tradition which has not been referred to in the evidence of the witnesses and parties to the case, for evidence to be recorded by the court of such custom or tradition. In this way the parties will be able to consider and question the facts on which the court proposes to base its judgment. On the other hand it is also unsatisfactory for the District Court simply to rule out the existence of a custom relied upon by the Primary Court, without itself calling evidence as to its existence or otherwise.” (3) “In my opinion the fact that Peter had been in long possession, and his ancestors before him, of the disputed land without paying Masiro and without being disturbed, and that especially during the last fifteen years, entitled the Primary Court to come to the conclusion that Peter must have acquired a right at least by prescription on the evidence before it.” (4) Appeal allowed.

287. Zebedayo Naftali v. Telezea Mamlya. Civ. App. 5-A-68; 23/4/69; Platt J.

The plaintiff had leased a suite of rooms from the defendant, in which he ran a bar. A deposit of 1000/- was held by a third party (Robinson) against damage done to the property while in the plaintiff’s possession. In February, 1966 the defendant locked the bar containing certain articles belonging to the plaintiff. The plaintiff instituted proceedings in the District Court for Shs. 6335/- damages, being partly the loss of profits during the period before he opened up another bar, and partly being the value of the property converted by the defendant to her use. The issues before the District Court were whether the closure of the suit premises by the defendant was illegal, and if so to what extent the plaintiff was entitled to damages. It was held by the trial court that the defendant had been entitled to distrain and to enter and close the plaintiff’s premises, as the plaintiff had not paid rent for three months. Secondly, as the defendant had been entitled to distrain on plaintiff’s goods and as she had given him every opportunity of taking his goods, he was not entitled to claim for loss of earnings nor for the value of the goods. On appeal to the High Court, it was argued that there had been an illegal forfeiture of the lease, as well as distraint of goods; and that the deposit could have been used to offset the arrears in rent, instead of the method used.

Held: “The deposit was admittedly paid against damage to the premises. It was a reasonable stipulation having in mind that the premises were to be used as a bar and it is notorious that people who gather at bars are likely to do damage….. The deposit money concerned a matter outside the rent and was not available to be set off against the rent as the plaintiff hoped.” (2) “As far as non-payment of rent is concerned, the distraint was lawful. The argument on the first ground however concerned the manner in which the defendant had acted. It was said that the defendant having no right of entry had improperly relied on forfeiture of the lease, with the result that the distress levied on the goods was void abinitio. It was further argued that the learned Magistrate had

(1969) H.C.D.

- 254 –

come to a wrong conclusion on the facts”. (3) “The law relating to the relationship of a landlord to his tenant is as section 2(1) of the Land (Law of Property and Conveyancing) Ordinance Cap 114 recites the law in force in England on the 1^st day of January 1922, subject to the qualifications in sub-sections (2) and (3) of the section. The qualifications in section 2(2) are not, I think, relevant, although the defendant could hardly have known of the technicalities of English law with which she was involving herself. At any rate, this has been the position at least since the decision in KARIMJEE JIVANJEE & CO. vs. THE OFFICIAL RECEIVER OF THE GOVERNMENT OF TANGANYIKA. THE TRUSTEE OF THE TRUSTEE OF THE PROPERTY OF GOLDON McKIAHMID (1936) 3 E.A.C.A.94 which applied the common law and statutes of general application concerning distress to Tanganyika and presumed knowledge of such laws to the parties. The position is still the same.” (4) “On that basis I turn to consider the argument concerning forfeiture. A lease may be determined by entry or ejectment for a forfeiture incurred either by breach of a condition in the lease or breach of any covenant if the lease contained a condition or proviso for an entry for a breach of such covenant in the instant case there was no such condition or proviso in the oral agreement between the parties as to re-entry for non-payment of rent. I agree that none of the formal rules concerning a prior demand were complied with, as pointed out by learned Counsel for the plaintiff. But where forfeiture has been incurred for breach of any covenant or condition, the lessor must do some act evidencing his intention to enter for the forfeiture and determine the lease. The act must be final and positive which cannot be retracted, treating a breach of covenant by the lessee as constituting forfeiture. (See Woodfall page 938). Although the plaintiff’s servant Roymond indicated that the defendant had said that she no longer wanted the premises used as a bar, it is clear from all the circumstances that the defendant wanted her rents paid. As the learned Magistrate appears to have accepted her statement of the facts, it seems that he defendant offered to open the premises and continue if the rents were paid. Ii see no evidence in the defendant’s account of what happened that she intended to enter for the forfeiture and determine the lease …… As the learned Magistrate held, she was interested in payment of rent and although she debarred the plaintiff from access to the premises that by itself would not necessarily constitute a determination. A similar course of action took place in KANTI NARAN PATEL vs. NOOR ESSA (1965) E.A. 484. There goods were locked in a shop. It was taken as a case of illegal distress forfeiture not being considered at all. I am not prepared to hold therefore that the defendant did finally and positively indicate that she wished to determine the lease, (Cf. Eastern Radio Service v. R. J. Pate;.( 1962) E.A. 818.)” (5) “There is then the question of distress. There was no doubt a relationship of landlord and tenant between the defendant and the plaintiff respectively, and the plaintiff was in arrears of two months’ rent. As I have said the plaintiff as tenant could not set off a sum due to him arising out of the deposit and certainly not so as to affect he defendant’s right of distress. (See Woodfall page 374 Para 901). The bar being open at the time the defendant was entitled to enter and levey distress, the rent being due from those premises. I cannot see that the articles taken in distress were privileged ….. The plaintiff seems quite deliberately to have left his goods in the premises and at no time wished to retrieve them. I cannot see, therefore, that he had any ground of complaint as to the manner in which distress was taken or impounded. But there were irregularities thereafter.

(1969) H.C.D.

- 255 –

It is true that the defendant did not cause an inventory to be made out of the goods taken in distress nor did she serve a notice of distress so that the plaintiff could replevy the goods. The defendant ought to have had the goods appraised, and within a reasonable time removed them from the premises. She took no such action according to the plaintiff, within the 21 days which elapsed before the plaintiff had taken up other premises and relinquished the suit premises. On the other hand, according to the defendant, he took up other premises on the 10^th February 1966, that is two days after she had locked the premise. Moreover, the plaintiff never wanted the goods at any time. If that was so, then the defendant could not be accused of trespass by remaining for an unreasonable time on the premises in possession of the goods. The learned Magistrate made no comment, as far as I can see, as to whether he thought the plaintiff had taken up new premises and had relinquished the lease and its goods with the defendant within two days or within 21 days. The evidence was equally divided and I presume that the burden of proof being upon the plaintiff to prove his case for damages, he would have failed to discharge that burden of proof. Moreover, generally speaking the learned Magistrate favoured the evidence of the defendant. I am left in doubt therefore whether the plaintiff had established a case of trespass, in that the defendant remained in possession of the goods without proceeding to sale. (Woodfall page 375 Para 903)”. (6) “It was argued however that the defendant was liable for goods lost while in her possession. On this point, the learned Magistrate was satisfied with the defendant’s evidence that when the inventory was eventually take, the goods then in the premises were all the goods that had remained on the premises. The plaintiff had alleged that many more goods than were eventually found in the premise had been distrained upon by the defendant. But the learned Magistrate did not believe that. His view seems reasonable on the evidence. There was no evidence then of any actual loss, and as I have said when sold by the Court Broker, the value of the goods was only one third of the rent outstanding. There was no case then for excessive distress as argued.” (7) “It seems to me that the distress levied in this case was lawful in origin, but that after it was made, there were irregularities. A distinction must be made between an illegal distress and one which is wrongful by reason of some irregularity subsequent to the levy. So where distress is made for rent justly due, and any irregularity or unlawful act is afterwards done by the party distraining, the distress itself shall not be to the right deemed unlawful, nor the party making it be deemed a trespasser ab initio, but the party aggrieved may recover full satisfaction for the special damage he has sustained there by with costs and no more. He cannot sue the person in possession of the goods for conversion. (See Woodfall Para 1167). In instant case, the action was brought on the ground of illegal distress and therefore the action fails because no illegal distress was proved. Damages for an irregular distress are a different cause of action, to that for an illegal distress. In my opinion therefore the learned Magistrate came to the right conclusion on the facts which he accepted that there had not been an illegal distress. Although the evidence was conflicting, I do not see my way to interfering with his view of the weight of reliability to e attached to the evidence. But even on the plaintiff’s evidence, it is not at all clear that the plaintiff suffered any special damage by reason of the irregular or unlawful acts which occurred after distress was lawfully levied.” (8) Appeal dismissed with cost.

(1969) H.C.D.

- 256 –

288. Akbar Virji v. Emu Mwakang’ata. Civ. App. 9-D-69; 20/8/69; Georges C.J.

The plaintiff claimed damages in the District Court from the defendant in negligence. He alleged that the defendant had caused a collision between his motor vehicle and that of the defendant due to the defendant’s negligently driving on the wrong side of the road. The defendant denied negligence and counterclaimed for the damage caused to his own vehicle. His case was that he had been driving on his correct side when he saw the plaintiff approach him on the same side, the plaintiff’s wrong side. Being unable to swerve further to his left as there were pedestrians walking along the road on that side, the defendant swerved to his wrong side of the road. Just, then the plaintiff swerved back onto that side of the road and hit the defendant. Neither side gave evidence to substantiate its claim for damages. The trial court held that there was no justification for the defendant swerving as he did and that the correct cause of action for him, when he saw the plaintiff approaching him head-on, was to stop.

Held: (1) “If a person negligently drives on a road in such a manner as to place another in a position of peril, then that person cannot complain if the other, so imperiled, in the agony of the moment, takes action which in fact fails to avert an accident. It is not enough by the use of hindsight to conclude that another course of conduct would have prevented the accident. It is, of course, open to the magistrate to hold that the choice made by the defendant was so bad that no prudent driver would have made it. Even in such a case, however, once it is accepted that he was driven to this course by the negligent conduct of another, and then there is a clear case for apportionment of liability for the accident between the two driers, rather than for placing the blame entirely on the one or the other.” (2) A statement in plaint that damage has been suffered is not enough, unless there is an admission in the defence that this is so. In this case, the written statement of defence plainly denied the allegation that the plaintiff had suffered any damages as a result of the negligence of the plaintiff, or at all. It was the duty of the plaintiff, therefore, to lead evidence of the value of his vehicle at the time of the accident, and also of the loss which he suffered by being deprived of the use of it during the period he required to purchase another. In an action for negligence, there can be no finding for the plaintiff unless damages are proved. Damages are an essential ingredient of the tort.” (3) Re-trial before another Resident Magistrate ordered

289. Iddi s/o Nyanza v. Yonaza s/o Mbajo & others Civ. App. 4-A-69; 17/7/69; Platt J.

A certain woman, Halima, claimed that the appellant had falsely accused her of acting as a go- between on behalf of some man and the appellant’s wife with a view to the seduction of the latter by the man. The respondents, who were elders, ten house cell leaders and village development committee members, were called in and specifically asked by the appellant to can ciliate the matter in a customary manner. Accordingly, they suggested that the appellant should bring some articles for a feast for Halima, himself and certain others. The respondent did so, but did not take part in the feast himself. He then claimed that the property had been taken from him by force and sued for its value. The Resident Magistrate dismissed the suit holding that the respondents had acted under customary law in arbitrating the matter, and that the articles had been given by the appellant

(1969) H.C.D.

- 257 –

as a part of the reconciliation of the parties. The appellant appealed to the High Court.

Held: (1) “A person is not considered to have unlawfully assumed to act as a judicial officer under section 99(1) of the Penal Code, provided that the person taking part in the arbitration were tribal elders dealing with a matter arising our of an offence of a personal or private nature or in a minor civil dispute if such arbitration or settlement is conducted in a manner recognised as customary law…… as the arbitration and the settlement had been requested and agreed to by the appellant, he could not claim back the value of the articles which he had provided.” (2) Appeal dismissed.

290. Sabini Duka v. Amani Huruma. Civ. App. 247-D68; -/8/68; Saudi J

Appellant’s daughter Zainabu and the respondent Amani had been married in the Moslem Ahmadiya sect since 1957. In January 1968, the respondent left the Ahmadiya sect and jointed the Kadian sect. After consultation with two Sheikhs, Zainabu left the respondent and later married another man, on the grounds that her marriage to the respondent had been nullified by the latter’s action in changing his sect, and this therefore left her a free woman. The respondent commenced proceedings, claiming restitution of conjugal rights, although the other party was not Zainabu, but her father. The primary court held that he marriage had been nullified by the respondent’s changing his religious sect. On appeal, the District Court reversed this, and held that the marriage was still valid. On further appeal

Held: (1) “In his Principles of Mohamedan Law, 14^th edition, Mulla deals with the issue of change of sect in paragraph 31 at page 26. there he says that:- “A Mohamedan male or female who has attained the age of puberty, may renounce the doctrines of the sect or sub-sect to which he or she belongs, and adopt the tenets of the other sect or any other sub-sect, and he or she will thenceforth be subject to the law of the new sect or sub-sect”. He [Mulla] says that a marriage between a Shia male and a Sunnni female is valid but the wife’s status is not affected as she retains her rights under the Sunni law to which she belonged before the marriage. Mulla also says in paragraph 259 that a Mohamean male may contract a valid marriage not only with a Mohamedan woman but also with a Kitabi, that is, a person who professed any recognised religion, such as a Christian. Mohamedans are not allowed to marry fire-worshippers or idolaters, but a marriage with one of these is not void and is only irregular. A Mohamedan woman does not enjoy the same privilege, and she cannot contract a valid marriage except with a Mohamedan. But such a marriage between her and a non-Muslim is not void but irregular.’ (2) “The change of religious sect by either spouse need not necessarily nullify his or her marriage with the other ……..[A] marriage between the religious sects of Mohamedans is permitted, and if that is the case there is no valid ground for Zainabu to declare that her marriage with Amani has been nullified by Amani’s change of religious sect so as to entitle her to leave him and become a free woman. The alleged marriage of Zainabu with another man is certainly invalid and cannot stand in the way of Amani’s claim for restitution of conjugal rights, although the court is fully aware of the complications that have been brought about by the second marriage.” (3) Appeal dismissed.

291. Narndlal Ambasana v. Harilal Mahta. Civ. App. 3-D-68; 28/3/69; Duff J.

The respondent, who occupied a flat on the appellant’s premises, was satisfied with the tenancy until his electricity was disconnected

(1969) H.C.D.

- 258 –

by the electricity company because of faulty wiring and inadequate ear thing. He showed the notice for repairs from the electricity company to the appellant landlord, and asked him to effect the necessary repairs. The landlord refused, claiming that repairs were the responsibility of the tenant. The tenant then made an application to the Rent Restriction Board to reduce the standard rent of his flat, which resulted in the standard rent being reduced from Shs. 233/20 to Shs. 200/- per month until such time as the repairs were affected by the landlord. The landlord appealed on the grounds that the landlord was under no obligation to carry out repairs to the electricity system.

Held: (1) “In reducing the amount of the standard rent the Boar ad purported to act under the provisions of Sections 4(2) (aa) and 4(5) of the Rent Restriction Act, 1962, but it would appear that Section 4(5) aforesaid was the relevant sub-section, the power being given therein to the Board to reduce the standard rent until such time as repairs, which are the obligation of the landlord, either by agreement or custom or under the provisions of Section 29 of the Act, are carried out.” (2) “Under the Rent Restriction Act, Cap. 479, presumably in the absence of any agreement to the contrary it is deemed to be the obligation of the landlord to keep and maintain the premises in a state of good structural repair and in a condition suitable for human habitation while it is also the duty of the tenant to maintain the premises in the same condition, fair wear and tear excepted (Section 29(1) of the Act refers). A tenant’s obligation, under the Act, is to take care that the premises do not suffer more than the operation of time and nature would effect. The “wear and tear” exception exempts a tenant from liability for remedying parts of the demised premised that wear out, the landlord being the person responsible for these repairs.” (3) “An obligation to keep the premises in a condition suitable for human habitation binds the landlord to keep and maintain them in such a state that they may be occupied not only with safety but with reasonable comfort, for the purposes for which they were take.” (4) “The implied covenant to repair is not confined to structural repair but also to the installation of; inter alia, electricity – not electrical appliances – which must be kept in repair and working order. The tenant contracted for the electricity installation when he rented the flat and the failure of the landlord to repair the electrical wiring was a repudiation of his agreement to keep and maintain the premises in a proper state of repair. In the circumstances the decision of the Board to reduce the rent in accordance with the provisions of Section 4(5) of the Act was perfectly correct and unassailable.” (5) Appeal dismissed.

292. Sachak v. Ferdinand Kabuye. Civ. App. 3-TANGA-68; 10/4/69; Platt J.

The respondent-tenant claimed “determination of House Rent” before the Rent Tribunal, Tanga. He admitted that the house had been let at the prescribed date at Shs. 150/- and that his present rent was the same. He testified that the house was old and with poor drainage. The appellant – landlord claimed to have repaired the premises in 1962 and 1965. After viewing the premises, the Vice- Chairman made an order assessing the rent at a reduced figure of Shs. 100/-, because the condition of the premises was deplorable, the house old and ill-maintained and situated in the backyard. The issues before the court were whether the Vice – Chairman was legally entitled to reduce the standard rent, and if so, whether there was sufficient evidence before him for him to do so.

(1969) H.C.D.

- 259 –

Held: (1) “Assuming that the order was made in the exercise of the discretion of the Tribunal, guidance may be found as to the approach of an appellate court in the observations of Worley V. P. (as he then was) – HAYMONG V. WELLS (1952) E.A.C.A. 209 at pp. 212 and 213; “The power given to the Board is discretionary and a Court will not lightly interfere with its exercise provided it is satisfied that the powers had been used judicially. Bu this does, I think, entail that there should be sufficient material upon the record to show that there has been a judicial and not an arbitrary exercise of discretion.” With respect, I adopt that point of view. I doubt if there was, in this case, sufficient material upon the record. Although it was clear that the premises had been let before 1959, there was no evidence as to the real age of the building. As far as disrepair is concerned, the allegations set out in the application were not substantiated in the evidence, apart from poor drainage. It is not clear on whom the fault laid for disrepair in any case, (See section 29). On the other hand, the landlords claim to have renovated the premises as recently as 1965. As far as the record went, such allegations as the tenant relied upon were disputed. In these circumstances, the learned Vice Chairman was forced to see the premises for himself and it is here that … a report from an independent source would have been of the greatest help to him ….. at any rate, having seen the premises, the Vice Chairman decided that they were old and deplorably maintained. They were badly sited and merited a reduction in rent. The question arises whether the Vice Chairman ought to have relied upon his own view of the premises to decide the issue. It was said by this own view of the premises to decide the issue. It was said by this Court in FATEHALI ALI PEERA v. ONORATA DELLA SANTA DAR ES SALAAM MISC. CIVIL APPEAL 10 OF 1968, that it is against natural justice for a Tribunal to decide a case on a point noted by it, as a result of its own efforts, and not specifically communicated to the parties so as to allow them an opportunity for contraction. A similar view was expressed in R. v. PADDINCTON & St. MARYLEBONE RENT TRIBUNAL, exparte BELL, LONDON & PROVINCIAL PROPERTIES LTD. (1949) 1 All E.R. 720 at p. 727, and relied upon in Fatehali’s case. With respect, I am of the same opinion. In the instant case, it was not really clear what the Tribunal was actually deciding – at any rate, I am not sure the landlord knew what was in the Tribunal’s mind. It was not clear which, if any, of the discretionary provisions was being acted upon. In these circumstances, it was only fair that the Vice Chairman should have made known his views or called evidence which the landlord could then have contradicted if he wished. I doubt whether it can be said that without sufficient material upon the record, that it was satisfactory for the Vice Chairman to fill the gap in the evidence by his own views. This doubt is further enhanced when one sees that the Vice Chairman sat alone unaided by other members of the Tribunal. This may be permitted under section 6(5) of the Ordinance, but without the broad base which is designed generally for the Tribunal, the judicial exercise of discretion ought to be clearly demonstrated.” (2) Ruling of Vice –Chairman Set aside. Standard rent declared to be 150/- until such time as it is properly reduced.

293. Rehmtulla Bandali v. The Commissioner of Transport, The East African Railways and Harbour Administration. Civ. Case 157-D-1967, 3/7/69; Biron Ag. C.J.

By a lease entered into in or about March 1966, the plaintiff demised to the Administration premises situate at Vwawa. The

(1969) H.C.D.

- 260 –

Premises were destroyed by fire on the 27^th November 1966 and the plaintiffs file a plaint on the 27^th December 1967 claiming damages both in contract and in tort. In contract he claims a breach of condition in the lease not to use the premises for purposes other than as a Road Service Station and in the alternative on an implied term not to store, case or allow to be stored any hazardous articles or substance likely to cause damage to the premises. In tort that the fire was caused as a result of the defendant’s negligence in filing to take proper care and precaution to safely store two drums of petrol, thereby leading to their catching or accelerating fire. Before dealing with the substantive claim the court determined as a preliminary point of law whether the claim was time-barred. The Administration contended that by Section 93 (b) of the East African Railways and Harbours Act no action or legal proceedings shall lie against the Administration unless it is commended within twelve months of the act complained of. The plaintiff’s claim having been instituted thirteen months after the act was therefore time barred. In the counter submission it was stated that by Section 93(b) o the above Act no action would commence until at least one month after the written notice has been served on the defendants, and that Section 15(2) of the Indian limitation Act 1908 provided that in computing periods of limitation for suits the period of notice where such is given shall be excluded, hence the suit was no time barred.

The Administration then argued that the two sections referred to being seemingly inconsistent provisions of the Treaty for (High Commission) Order-in-Council, 1947, and the Interim Constitution of the United Republic of Tanzania shall apply to the effect that where there is any inconsistency between the 1(ca) laws of the High Commission, the latter shall prevail.

Held: (1) “I consider, and so hold, that here is no inconsistency between section 15 (2) of the Limitation Act and section 93 (b) of the East African Railways and Harbours Act, but that they are mutually complementary, and both can be applied without one infringing the other; that in computing the period of limitation, the period of notice is excluded. I, therefore hold that the claim is not time-barred.” (2) The notice of and was aware of a warranty or condition in an insurance policy taken out buy the plaintiff prohibiting the storage of petrol. (3) “To deal first with the claim as laid under contract: Although Mr. Kuss submitted, though not with any great force, that as a Road Service Station, petrol would normally be handled and stored, as I think, sufficiently demonstrated, taking into account the terms of the lease, including the obligation of the landlord to insure, and the conditions or warranties of the policy of insurance he effected in performance of his part of the agreement, or which the Administration had due notice and was well aware, I have not the slightest hesitation in holding that in storing, as it did, the two 44-gallon drums of petrol on the premises, the Administration was in breach of its agreement with the plaintiff.” (4) “To turn to the issue in tort: I will, I hope, be forgiven if I deal with the points of law involved rather briefly, though not too summarily, and confine myself to principles which, I think, well established, without citing any cases in support

(1969) H.C.D.

- 261 –

thereof. It is, I think not disputed that the law in this country with regard to liability for fire is the same as in England, as provided for in section 2 of the Judicature and Application of Laws Ordinance (Cap. 453 – Supp. 61) – Section 2(1) and 2(2) …… Although in England, liability for fire was at one time absolute, since the passing of the Fire Prevention (Metropolis) Act, 1774, which extends to the whole country, “no action, suit or process whatsoever shall be entertained or prosecuted against any person in whose house, chamber, stable, barn or other building, or on whose estate any fire shall ….accidentally begin”. Without citing any authority, it is well established that responsibility for damage will not lie unless negligence has been established…. I consider that it is now well established that in cases of fire, the doctrine of res ipsa loquiton so as to render the occupier of the premises wherein a fire breaks out liable without any further proof of negligence, will not apply. Without indulging in an academic exercise as to how fires can and do break out, it is, I consider, well established in law that to hold an occupier of premises liable in damages for fire breaking out on such premises, there must be positively established negligence on his part ….. on this question of negligence, the stationmaster stated that the two drums of petrol were kept in the store under a pile of about 50 coffee bags, each weighing about 200-300 lbs. I have not the slightest hesitation in finding that to so store two 44-gallon drums of petrol constitutes negligence. Further, It also constitutes a breach of statutory duty, in that it violates rule 28 of the Petroleum Rules made under the Petroleum Ordinance (Cap. 225 – Supp. 61), ( which stipulated that alliance was required for the storage of petroleum except under certain circumstances which did not apply in this case. Further, the stationmaster, although he was rather vague on this, as on other aspects, did not know how many fire extinguishers were kept on the premises, or whether they were all not in working order – as noted, the one he did try did not work. He, apparently, assumed that the others, if others there were, were also not in working order. That, again, to my mind, constitutes negligence on the part of the administration. Further still, the stationmaster does not appear to have made any great effort to extinguish the fire, though in fairness to him, it should be added that it is quite possible that once having seen that the fire had taken hold and was spreading, the fear that it would reach the petrol drums may well have impelled him to vacate the premises. Although this was specifically put to him, he neither confirmed nor denied this, but it is a possibility. Conversely, if he was not put off by the presence of the petrol drums, then his failure to take proper steps to extinguish the fire would constitute negligence. It may well be a circuitous argument, but whichever way one looks at it; there was negligence on the part of the Administration, and its servant or agent. Pausing there, I have found that in storing the petrol on the premises, the Administration was in breach of contract and negligent as well, that would not ipso facto render the Administration liable for the damage caused by the fire, unless such breach of contract, negligence and breach of statutory duty were or was the cause of the outbreak of the fire …. [T]he fact remains that the fire started a considerable distance away from where the petrol drums were stored. In fact, according to the witness, they did not explode until about ten minutes after the

(1969) H.C.D.

- 262 –

fire had started. Be that as it may, it is abundantly clear that the outbreak of the fire was not due to the petrol drums stored on the premises. The administration, therefore, cannot be held liable for the outbreak of the fire. The matter, however, still does not end there, for even if the Administration was not responsible for the outbreak, if on account of its breach of contract, negligence and breach of statutory duty, the damage was aggravated, the Administration would be liable for the damage caused in corresponding proportion to the excess damage caused by the presence of the petrol drums on the premises. It is, therefore, necessary to apportion the damage caused between the original outbreak of the fire and the excess caused by the petrol drums being on the premises. I must confess at once that I find this a well-nigh impossible task. But that does not absolve the Court from determining the question. The plaintiff had insured the premises for Shs. 35,700/-. In evidence he gave the value of the premises as Shs. 35,000/- The premises, he contends, have been completely destroyed. His evidence as to that is not disputed, but rather borne out by the photographs produced. He, therefore, claims as damages Shs. 35,000/-. Reviewing the evidence as a whole, and it cannot be overstressed how sparse and unreliable it is, one cannot, to my mind, escape the conclusion that but for the presence of the petrol drums on the premises, the damage caused by the outbreak of the fire would have been very, very much less than the damage that actually resulted …….. On due consideration of the evidence and of the surrounding factors as a whole, I consider a fair apportionment of the damages to be borne by the parties respectively, of the total of Shs. 35.000/-, to be Shs. 15,000/- due to the outbreak of the fire itself, for which the Administration cannot be held responsible or liable, and Shs. 20,000/- for the damage caused by the presence of the petrol drums on the premises, for which the Administration is liable.”

294. Lalji Gajjar v. Karim. Civ. App. 35-D-68; 21/8/69; Biron J.

In proceedings before the Resident Magistrate’s court. The plaintiff/ respondent, who was the owner of a flat, alleged that the defendant/appellant had approached her with a request to lease to him the flat, that the respondent handed him the keys of the flat for him to view it, and that the appellant moved into the flat, not only without the respondent’s consent, but even without her knowledge. On discovering this, the respondent told him to vacate, and gave him a few days’ grace in order to find other accommodation. According to the appellant, he came to a firm agreement for a tenancy with the respondent at a rental of Shs. 200/- per month and Shs. 4,000/- as key money. He claimed that he moved in under the agreement; but upon his refusal to pay the key money, the respondent told him to vacate the flat. Although he had offered to pay the rent, the respondent refused to accept it. He also revealed that he had never really intended to pay the key money. The trial court found in the respondent’s favour that the appellant was a trespasser. An order was made granting the respondent possession as well as mesne profits at the rate of Shs. 200/- per month. The appellant, on appeal, argued that he was entitled to relief as there was a tenancy between him and the respondent; that the court ought to have considered the case of key money involved here and discouraged the practice; that the lower court should have considered and ruled on the question or the reasonableness of making the order for the recovery of the premises; and that the Court of a Resident Magistrate had no jurisdiction to determine the standard rent and could not therefore award mesne profits.

(1969) H.C.D.

- 263 –

Held (1) “It may well be argued, and in fact I think it was, that the appellant had really no case on the maxim ex turpi causa non oritur actio. However, if there is any substance in the appellant’s case the two parties were in pari delicto, and if in fact the appellant went into occupation in accordance with an agreed tenancy that would not disentitle him to relief. Further, even his admitted false pretence, that is, that he agreed to pay key money without any intention to do so, would likewise, not disentitle him to relief, as the Rent Restriction Act was enacted in order to protect tenants”. (2) “The law has been called an ass, but it is not mandatory for its administrators to wear blinkers. I must confess that I am not blind to the prevalence of the insistence on key money for the granting of a tenancy, but even if I were to accede to Mr. Kesaria’s request, unusual though it is, and consequently find in his client’s favour that there was a question of key money involved in this case, I would still find it inconceivable that the respondent would have agreed to a tenancy or let the appellant go into possession of the premises without the key money having been paid in advance, particularly having regard to the appellant’s standing. He is an undischarged bankrupt, and has been for years…. There are decrees outstanding against him for non-payment of rent on a previous tenancy which have not been satisfied nor are hardly likely to be. In these circumstances, as remarked, I find it inconceivable that there would have been any agreed tenancy without a condition precedent that the key money is paid in advance before entry on the premises. Even so it may will be argued that the agreement as to key money should be severable from the main contract as to the lese, and the court should accordingly uphold the lease, if only on the grounds of public policy, and the court could, I think, in the exercise of its jurisdiction in equity so sever this illegal term from the agreement and uphold the tenancy. However, even Mr.Kesaria has not invoked the court’s jurisdiction in equity, as, with all due respect to his client, it would hardly be said that he has come to court with lily-while hands. In all the circumstances I am very far from persuaded that this Court would be justified in transferring with the finding of the learned magistrate that the appellant was a trespasser, which, as I think sufficiently demonstrated, is, to my mind, amply supported and justified by the evidence. Mr. Kesaria has further argued that even if the respondent was entitled to possession, section 19 (2) of the Rent Restriction Act, as amended by the Rent Restriction (Amendment) (No. 2) Act, 1966, applied, that:- “19. – (2) In any case arising under subsection (1), no order for the recovery of possession of premises shall be made unless the court is satisfied, by or on behalf of the landlord, that having regard to all the circumstances of the case it is reasonable to make such an order and, where the order is sought on any of the grounds specified in paragraphs. (c), (e) (h) and (1) of sub-section (1), that unless such an order is made great hardship will be caused to the landlord:” and the learned magistrate has not in this case ruled on the question of reasonableness. Mr. Bhimji, who appeared for the respondent, submitted that section 19(2) does not apply in the case of a trespasser, contending that the subsection will apply only in cases where possession is granted on any of the grounds set out in sub-section (1) of section 19, which in practically all cases provided for specifically refer to tenancies. Although the court has jurisdiction to deal with and grant eviction orders against a trespasser, as provided for in section 11A (b) of the Act as amended by the Amendment Act referred to above, which reads:-

(1969) H.C.D.

- 264 –

“11A. – (1) (b) to make orders, upon such terms and conditions as it shall think fit, for the recovery of possession and for the payment or arrears of rent or mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation or possession of any premises”; and section 19(1) commences with: - “(19. – (1) No order or judgment for recovery of possession of any premises to which this Act applies, or for the ejectment of a tenant there-from, shall be made or given unless –“; and there follows the various grounds where under possession may be granted, and subsection (2) above set out states, “In any case arising under subsection (1)” etc., I agree with Mr. Bhimji’s submission that “sub-section (2), which deals with the question of reasonableness should not, cannot and does not apply to the case of a trespasser. Even it I were wrong in so holding, there is authority which I do not consider it necessary to cite, that an appellate court may presume that where evidence has been led before the court of first instance in respect of reasonableness, even if no express reference is made to such aspect, the court has applied its mind to the question or reasonableness and has made its order accordingly. In this instant case not only would it be reasonable for a court to make an order for possession, but even if subsection 19(2) applied it would, to my mind, be most unreasonable not to make an order for possession, as, without mincing words, it is difficult to imagine a more undesirable tenant than or a less deserving case than that of, the appellant”. (3) “With regard to the question of the determination of the standard rent, I agree…. That the Court of a Resident Magistrate has no jurisdiction to determine the standard rent, which is nowadays solely within the province of the Rent Tribunal. However, the court in this case has no tin fact determined the standard rent, but simply assessed the mesne profits on the application of the proviso to section 2(1) of the principal Act …. On the evidence before it the court found the rent at the prescribed date to be Shs. 200/- ……. And accordingly awarded such figure as mesne profits, as it was certainly entitled to do.” (5) Appeal dismissed.

295. Valerian Paul v. Registrar of Co-operative Societies & Narumu Manushi Co-operative Society Ltd. Misc. Civ. App. 1-A-69; 3/9/69; Platt J.

The first respondent, the Registrar of Co-operative Societies, surcharged the appellant under section 71(2) of the Co-operative Societies Act No. 27 of 1968, as a result of an inquiry into the activities of the N.M. Co-operative Society, the second respondent. Through the inquiry, the 1^st respondent was satisfied that the appellant was partly responsible for negligence and misconduct which resulted in a heavy loss. The appellant appealed against the surcharge, and joined he society as a second respondent in addition to the registrar.

Held: (1) “The salient feature of such an appeal seems to me to be that he appellant is challenging the order of surcharge made by the Registrar. The latter does not act by or with the consent of the Society. It is his discretion whether, as a result of the inquiry having been held under section 68 of the Act or the inspection held under section 69 of the Act, any officer or a member of a Society should be surcharged. The appeal principally challenges the manner in which the surcharged was made or the quantum. The argument then concerns the difference of opinion directly arising between the Registrar and the person surcharged. No doubt the Society may in one sense be the beneficiary of the order and it is the Society’s affairs which have been inquired into or inspected; but the power of surcharge is an over-riding

(1969) H.C.D.

- 265 –

power given to the Registrar for the purpose of controlling the proper management of the affairs of a co-operative society”. “The Narumu Manushi Co-operative Society should not have been joined as second respondent to this appeal.”

296. Tanzania Tailors v. Keshavji Lalji. Civ. App. 14-D-68; 5/9/69; Duff J.

The resident magistrate made an order in which he stated that s. 19(5) of the Rent Restriction Act Cap. 479, while empowering the court to stay or suspended execution, did not entitle it to vacate a decree for possession already passed by the magistrate’s predecessor.

Held: (1) “Section 11D [of Cap. 479] provides as follows: - “11D. An appeal shall lie to the High Court from every order, decision or judgment made or given by the court in any claim, proceedings or other matter of a civil nature arising out of this Act and the provisions of the Civil Procedure Code, 1966 relating to appeal from orders and decrees in civil suits shall apply, mutatis mutandis, to appeals from such orders, decisions and judgments.” An order by the learned senior resident magistrate refusing to exercise the powers vested in him under section 19(5) of the Act is an order or decision given by the court in a matter of a civil arising out of Act. It falls within the clear words of the section and therefore is appealable”. (2) “The powers given under section 19 (5) of the Act are extremely wide and the legislature intended that the court should retain full control over the possession of the premises as between landlord and tenant until the order for possession had been executed. The original order for possession was absolute, mesne profits being ordered at Shs. 300/- per month until vacant possession was delivered. By the order of the 20^th February, 1968, a stay of execution was granted subject to a condition that the mesne profits were paid together with the balance of the decretal amount. From the English authority cited it would appear that an absolute order for possession cannot be discharged, without more ado, on some later application (Payne v. Cooper (1957) 3 A.E.R. 355). There does, however, appear to be power to discharge or rescind an order for possession where subsequent to the original order for possession there has been another order, e.g., postponing possession on conditions (Hay mills Houses Limited v. Blake (1955) 1 A. E. R. 592). To justify a discharge or rescission of an order for possession there thus would appear to be three stages, although I do not for a moment suggest that two applications under section 19 (5) of the Act, following an absolute order for possession, would be necessary. Section 19 (5) of our Act is similar to section 5 (2) of the Increase of Rent and Mortgage interest (Restriction) Act, 1920, and, as stated by Lord Evershed in Payne v. Cooper, the terms of the English section comprehends the power to superimpose on an absolute order an order postponing possession on an absolute order an order postponing possession on conditions, i.e., power to convert an absolute order into a conditional order with the consequence that the order, if the conditions are satisfied, could then be discharged. An original unconditional order for possession can subsequently be made conditional and then subsequently discharged and only one application under section 19 (5) of the Act, following an order for absolute possession, would appear is to be necessary, a court being empowered to render an absolute order conditional which could result in the absolute order conditional which could result in the absolute order being discharged if the conditions were observed. The learned magistrate was therefore erroneous in his views and

(1969) H.C.D.

- 266 –

could have made an order which could result in the order for possession being discharged.” (3) Matter referred back to lower court for fresh consideration of application.

297. Re Robert William Stafford Bird, deceased. Prob. & Ad. Cause 12-A-69; 13/10/69; Platt J.

An application was made for grant of probate to Margaret Fox formerly Margaret Bird, of the will of Robert William Stafford Bird. The will was dated 26^th June 1951 and was properly signed and attested under clause 3 of the will, the testator provided as follows: - “If my wide Margaret Bird shall be living at the expiration of seven clear days (excluding the day of my death after my death I gibe her absolutely all my property of whatsoever kind and whosesoever situated and appoint her my sole executrix” [sic]. Clause 4 continued: - “If my said wife shall not be living at the expiration of the period aforesaid then the following provisions shall take effect”. In the next paragraph, the testator appointed his sister and the brother of Margaret Bird to be executors and trustees of his will and guardian of his infant children and each executor, who should act, was given a legacy. The testator then bequeathed all his real and personal property, to the trustees upon trust for sale, to divide his residuary estate amongst his children living at the time of his death and his grand-children on certain terms. In September 1962, the testator and Margaret Bird were divorced. Margaret Bird later remarried.

Held: (1) “The application involves two questions. The first is whether Margaret Fox having divorced the testator, is still entitled under the will to all the testator’s property and to be appointed his sole executrix. Secondly, there is an application for dispensation with the verification of the petition for probate by one attesting witness of the will of the deceased …… Therefore, so long as Margaret Bird was living after the period specified in Clause 3, she was entitled to all the testator’s property and to be appointed his sole executrix. (2) “The question then is whether the reference to “my wife Margaret Bird” is a sufficient and suitable reference to Margaret Fox so as to entitle her to the property of the testator and to be appointed executrix. The will did not envisage the situation which might arise if the testator should divorce his wife Margaret Bird. The only condition to her receiving all the property and being appointed executrix was that she should be living at the time of the testator’s death. Bur it might be thought that she must be his wife and that as she was not his wife at the time of his death, she must be excluded from the will as the testator’s wife at the time that the will was made, and the testator having possession of the will and having made one alteration due to the death of his mother, must be taken to have intended that Margaret Bird was still to be entitled under Clause 3 of the will. No East African authority could be discovered, but he referred the court to Jarmans on Wills 8^th Ed. Vol. 2, p. 1239, from which it would appear that a divorce does not ipso facto revoke the will. He also referred to Halsbury Vol. 34, where in dealing with the voluntary revocation of wills, the learned author sets out the only events in which such revocation would be effected (See paragraph 107 of 2^nd Ed. Or Vol. 39, 3^rd Ed. Para 1354) Nothing is stated as to divorce.

(1969) H.C.D.

- 267 –

The most useful authority quoted would appear to be In re Boddington, Boddington v. Clariat (1883) 22 Ch. D. p. 597, in which the testator by his will gave the proceeds of the sale of his residuary estate to trustees on trust to pay his wife Emily Caroline within one month after his decease, a legacy of ₤300, commencing from the date of his deceased, “or otherwise in lieu and in substitution of the said annuity, at the option of my said wife, if she shall prefer it, a legacy of ₤2000.” After the date of the will, the marriage was declared null on the ground of the impotency of the testator. The latter died without altering his will. It was held that the former wife was entitled to the legacy of ₤200, but that she could not claim the annuity, inasmuch as she never had been in law the wife of the testator and never could be or continue his widow. The annuity was therefore given for a period which could never come into existence. Fry, J….. explanted that there was no doubt about the identity of the person named in the will, since the misdescription could not be of importance, and that although she was described in the will as the testator’s wife, which she was not at the time of his death and in law never had been, nevertheless, she was prima facie entitled to the legacy of ₤200. The learned Judge went on to consider the authorities, but held that here being no false assumption by the lady of the character of a wife, she was entitled to that legacy. At he same time, he refused to grant her the annuity because she could not properly be described as having been his widow. As far as the legacy of ₤200 is concerned, there is no material difference between the facts in Boddingtons’s case and the instant case. It is true that Margaret Bird has remarried, but I cannot see that that can make any difference. Accordingly I am satisfied that Margaret Fox is the identical person to Margaret Bird, who was described by the testator as his wife, as indeed she ten was. As the testator did not alter his will, and as the divorce did not operate as a voluntary revocation, Margaret Fox is entitled. Under Clause 3, to the testator’s property and to be appointed his sole executrix. By way of strengthen the position; learned Counsel adduced the consents of the two children of the marriage to Margaret Fox being granted probate. I am also told that the two other executors have both deceased.” (3) “As to the second question, there is provision in section 57 of the Probate and Administration Ordinance Cap. 445 giving the court power to dispense “with verification by a witness where it is satisfied that it cannot be obtained, in that it cannot be obtained without undue delay or expense”…… Accordingly I grant the application for the dispensation with the verification as generally required by section 57 of the Ordinance.” (4) “In the result, probate is granted to Margaret Fox of the will of the testator Robert William Stafford Bird.”

(1969) H.C.D.

- 268 –

CRIMINAL CASES

298. Abdalla Alli v. R., Crim. App. 11-D-69, 2/7/69, Duff J.

The accused was convicted of house-breaking with intent to commit felony c/s 294 (1) of the Penal Code, a sentence of two years’ imprisonment being imposed together with the statutory twenty- four strokes of corporal punishment, this being the minimum sentence under the Minimum Sentences Act. It appears that the accused was observed in a compound, an alarm being raised which caused him to run and hide in an adjoining compound where he was apprehended. On being taken back to the original compound it was found that a hole had been made in the wall of the house, near the door, the intention being to break and enter.

Held: (1) “What was really involved was an attempted housebreaking, there being no evidence to show that the accused or any part of him had entered the dwelling-house and the accused should have been convicted of attempted house-breaking and not the full offence. The conviction is now altered to one of attempted house-breaking.” (2) “In sentencing the accused the learned magistrate excluded any question of special circumstances because “no property was stolen and therefore no question of value arose.” If property had been stolen, which did not exceed in value one hundred shillings, the learned magistrate would have been obliged to give an opportunity to the accused to adduce special circumstances seeing that he was a first offencer. Why should he be penalized and deprived of this opportunity because no property was stolen? Examination of Section 5(2) (b) (i) of the Minimum Sentences Act, Cap. 526, indicates that a discretion as to sentence may be exercised, assuming the other requisites are present, where attempts to obtain property, which would not in the opinion of the court, exceed one hundred shillings, are involved. If the value of the property is not available surely the benefit as to the value of the property must be given to the accused? In my view the learned magistrate erred in holding that he had no discretion as to sentence …… (3) “Order that accused be given opportunity to show cause why the minimum sentence should not be imposed.

299. John Lui v. R., Crim. App. 387-D-69, 26/9/69, Georges C.J.

The appellant was convicted of three offences against the Penal Code: contempt of court c/s 114(c), disobeying lawful order c/s 124 and resisting arrest c/s 243(b). The appellant appeared before the Senior Resident Magistrate Dar es Salaam in another criminal matter which was for mention that day. The Senior Resident Magistrate fixed a bail for him with a surety. The appellant said that he should be released on signing his own bond. The Senior Resident Magistrate would not agree to this and asked the appellant to leave the dock. The appellant refused to leave. The Senior Resident Magistrate asked the orderlies to remove him. He rested, and caused a disturbance. It was no longer possible to continue the court proceedings and the magistrate rose. At that stage the police officer in charge of the court summoned other police officers and the appellant was eventually subdued and removed.

Held:(1) With respect to the conviction for disobeying a lawful order c/s 124, the question arises as to whether the magistrate made any order within the meaning of the section. In the only East African case on this point, R. v. Mdeda

(1969) H. C. D

- 269 –

Okaya and others 19 K.L.R. 95 it was held that an accused who had disobeyed a summons to appear at the hearing of his matter was guilty of an offence under the equivalent section of the Kenya Code. The court stated that the summons was clearly an “order” and the fact that a warrant could have been issued to enforce it did not prevent the application of the section. “In Tanganyika, however, the trend of authority is different. Although section 124 itself has no been considered it has been held by Saudi J. in Salehe Alemasi v. Republic, Law Report Supplement No. I dated 18.6.65 p. 19 that failure by an accused person to appear to a court in answer to a summons was not a breach under section 117 (b) of the Penal Code [the contempt section].The learned judge held that section 101 of the Criminal Procedure Code was a specific provision of the law prescribing the mode of dealing with an accused person who disobeys a summons to appear personally Mr. D’Souza has argued that the section should be restrictively interpreted. I understood him to urge in effect that the word ‘order’ could be restricted in its meaning to formal orders of the court in which case asking an accused person to leave the dock so that following matter could be dealt with could not be an “order” within the meaning of the section. I am myself sympathetic with this approach as it is in the nature of things desirable to define with strictness conduct which can be characterised as a breach of criminal law. To place a wide meaning on the three words, order, warrant or command could lead to repressive use being made of the section. It seems, however, difficult to formulate on interpretation of the section which is both restrictive and logical. It would appear to me for example, that the word ‘order’ is linked grammatically in the section not only to court, but also to any “officer or person acting in a public capacity”. If that is so then, clearly, the word could [not] be restricted to some formal orders made by a court. On the other hand, the use of the words “duly made, issued or given” would seem to involve rather more formality than is usually associated with oral commands. It may be argued that these words in some case bring in the concept of promulgation contained in section 188 of the Indian Penal Code Act 45 of 1862, to which Mr. D’Souza referred me as being probably the section most analogous with section 124 of our Code. the fact is, however, the word promulgation has not been used. It could be said that a command is duly given at the very moment when it is spoken, so that if the person gibing the command is authorized to do so then disobedience to it falls within the meaning of the section. I would hold, therefore, that the appellant did commit an offence against the section and was rightly convicted.” (2) Conviction for resisting arrest quashed. (3) Conviction for contempt of court upheld.

300. Barthelomeo Daniel v. R., Crim. App. 505-D-69, 1/10/69, Georges C.J

The appellant was charged with two other persons with burglary c/s 294 (1) of the Penal Code and stealing c/s 265 of the Penal Code. The two persons charged with him were acquitted but he was convicted of receive stolen property c/s 311 (1) of the Penal Code and sentenced to 2 years imprisonment and 24 strokes corporal punishment. On the night of 20^th November, 1968 the house of Saidi Ali, was broken into and various articles (mainly clothing) were stolen. On 24^th November, Said Ali saw the appellant in the market at Morogoro with a shirt which he thought could be his. As a result the appellant was arrested. He

(1969) H.C.D.

- 270 –

Claimed that the shirt was his and at the trial gave an explanation which the magistrate thought could be true and which he accepted. At the time of his arrest the appellant was in company with the second co-accused. The police later trailed this co-accused, thus discover his house. They carried out a search there and also in the house of the 3^rd co-accused, where they found a number of articles which Saidi Ali identified satisfactorily as his property. In particular the third co-accused on this issue given in his own defence and convicted the appellant or receiving that shirt knowing it to have been stolen. In a room occupied by the second co-accused there was found a box containing items of clothing identified by Saidi Ali as his property. The magistrate held that since the door of that room could not properly be locked it was possible for someone else to have gained access to the room and to have placed the box there. He held, therefore, that the second co-accused had not been shown to have been in constructive possession of the articles, and therefore could not be convicted. The result, therefore, was that the appellant was convicted when none of the property alleged to have been stolen had been found with him or in premises occupied by him. He was convicted on the testimony of a person in whose possession an item of stolen property had been found and whose testimony had not formed part of the case for the prosecution but had been given in his own defence.

Held (1) “In his judgment the District Magistrate did not refer to the need for corroboration. In argument, learned counsel for the Republic urged that the third co-accused in whose possession the shirt was found was an accomplice and, therefore, the appellant should not have been convicted on his evidence unless it had corroborated. I do not think that the third co-accused could be called an accomplice in this case. If his story is believed, as indeed it was by the District Magistrate, then clearly he would have had taken no part in the matter. He would merely have been the innocent receiver of a gift of clothing from the appellant. It seems to me that he can more properly be described as a person who had an interest of his own to serve, within the definition in R. v. Prater (1960) 44 r. App. Re. p.83. He had been found in possession of stolen property; and unless he gave an acceptable explanation for his possession he could have been convicted of a criminal offence. There was thus a powerful motive for not speaking the truth and consequently his evidence implicating another person should be carefully examined before it is accepted as the basis for convicting that person.” (2) “In the absence of corroboration I do not think it would be safe to accept the evidence of the 3^rd c0-accused in this case as a basis convicting the appellant”. (3) Appeal allowed.

301. Selerin Mfiringe v. R., Crim. App. 317-D-69, 6/10/69, Hamlyn J.

The appellant was convinced of an offence of hunting animals in a game controlled area without the written permission of the game warden, contrary to section 11(1) (a) of the Fauna Conservation Ordinance, Cap. 302. The appellant shot an elephant at a small village named Lumumwe 1969, which is in the area known as Utengule in the Ulanga district. It is not disputed that the appellant held a form of permission signed by the Game Warden permitting him to shoot elephant and hippopotamus in “Utengule and Masagati”, and that this permit he duly endorsed stating that he had shot one bull elephant. The conviction by the lower court turns on the question as to whether the village of Lumumwe (which is in the Utengule area) is which a game controlled area.

(1969) H.C.D

- 271 –

Held: (1) “For the defence, the appellant gave evidence himself. He informed the court that the permit which he obtained gave him permission to hunt game at Utengule and Masangati and he states that Lumumwe is in the Utengule area; he has been a game scout for some eight years and visited the area in 19657. the appellant is clearly not a person who has willfully violated the game law (if indeed any violation has been proved) but any act which he performed, I am satisfied, was done in complete innocence. That however is not a question in this appeal, for I view the matter as on of complete prohibition and no question of mens rea affects the issue.” (2) There is insufficient evidence as to whether or not the village of Lumumwe was in a game-controlled area. (3) Conviction quashed.

302. R. v. Lucas Cosmas, Crim. Case 1137-Tanga-69, Inspection note 22/9/69, Hamlyn J.

Noted: “In this case it is noticed that the date of the judgment is 1^st July, 1969, whereas the date of the commitment warrant is 2^nd July, 1969. This is incorrect and might result in the convicted man serving an extra day’s imprisonment for no fault of his own. Care should accordingly be taken to ensure that the commitment warrant bears the same date as that of the sentence pronounced by the court

303. John Mchenya v. R., Crim. App. 680-M-69, 13/10/69, Kimicha J.

The appellant was convicted of stealing by servant and in addition to sentences of imprisonment he was sentenced to the statutory 24 strokes of corporal punishment. He objected to the corporal punishment on the ground that he was 47 years old and produced a diary kept by his father. The trial magistrate rejected his submission and acted on the evidence of a medical doctor that the appellant was about 40 years old. The appellant has now appealed against corporal punishment on the ground that he was born in 1921.

Held: (1) On the basis of the diary, the court found that the appellant was born on 8^th September, 1924 and that he was under 45 years of age on 109^th February 1969 when he was convicted and sentenced. The corporal punishment was therefore properly imposed. (2) “My view of the appeal is that the appellant had no doubt of his date of birth and he deliberately raised the objection with the open that he would qualify for exemption by the time his appeal is finally dealt with by this Court. He has in fact succeeded in his maneuvers because he is now above 45 years old and has escaped the first installment of corporal punishment which he would have received soon after his conviction. Whatever the fats may be, the appellant has now qualified for exemption from corporal punishment and it is ordered that that part of his sentence be set aside.”

304. R. v. Rajabu s/o Juma, Crim. Rev. 120-D-69, -/10/69, Mustafa J.

Accused was convicted of stealing by servant in that he, being a ticket seller, stole Shs. 453/-, the property of the Tanzania State Lottery. In sentencing, the magistrate did not apply the minimum Sentences Act.

Held: “Learned State Attorney has argued that in fact the sentence must be enhanced as the Tanzania State Lottery functions as a branch of the Treasury, which is a government department. She argues that the appellant has stolen Shs. 453/- of Government money and therefore the provisions of the Minimum Sentence Act apply. I agree that the money stolen would be

(1969) H. C.D.

- 272 –

government money. The State Lotteries are established by Government Lotteries Act, Cap. 576. Section 8 of Cap. 576 establish a Government Lottary Fund which constitutes a fund to which section 7 of the Exchequer and Audit Ordinance, Cap. 439, is applicable.” Sentence enhanced to 2 years and 24 strokes in accordance with the Minimum Sentences Act.

305. Andrew Mashamba v. R., Crim. App. 575-M-69, 27/9/69, Bramble J.

The appellant was convicted of four minor traffic offences. On the second count, that of permitting a motor vehicle to be use on the public roads with no insurance policy c/s 4(1)(2) of Cap. 169, he was sentenced to 4 months imprisonment. The appellant was a first offender. He was manager of a ginnery and as such had permitted his driver to drive an uninsured vehicle.

Held: “In cases of this kind I would think that a peremptory term of imprisonment should be imposed only where a person has shown violent disregard for the law more particularly when he has already been convicted of a similar offence. Technically there was no such blame or liability of the appellant in that he was acting on behalf of the company. A fine should have met the justice of the case.” Sentence quashed and fine of Shs. 300/- or 3 months in default substituted.

306. R. v. Nesto Kilabi, Crim. Rev. 27-A-69, 10/10/69, Platt J.

The accused was convicted of uttering counterfeit coin contrary to section 361(1) of the Penal Code and sentenced to three years’ imprisonment. The particulars of the charge were as follows: - “The accused did utter a counterfeit coin, knowing it to be a counterfeit; to wit he had uttered a one hundred shillings counterfeit note No. e 503215.

Held: (1) “A ‘counterfeit note’ is not a ‘counterfeit coin’. The learned Magistrate ….. bravely argued on a dictionary definition of coin, that a note might be included in that term. That cannot be so having in mind the definition of coin in section 353 of the Penal Code …. [Which] throughout refers to metal objects being adapted to resemble coin. It is quite clear that coin means exactly what is mean in ordinary language, throughout the Chapter relating to coin. The charge is therefore misconceived (2) “The forgery of a currency note, or purchase receipt or possession of such a note is provided for in section 338 and 348 of the Code respectively. Forgery of a currency note is punishable with life imprisonment; possession with 7 years’ imprisonment. The offence charged was uttering the false note. That is provided for under section 342 of the Code as follows: - “Any person who knowingly and fraudulently utters a false document is guilty of an offence of the same kind, and is liable to the same punishment, as if the had forged the thing in question.” Hence uttering the false not in this case attracted life imprisonment. The learned Magistrate would, however, in this particular case, have had power to deal with the charge (see the First Schedule to the Criminal Procedure Code). But were as statutory provision has been made in the Criminal Procedure Code for alternative verdicts for lesser and some other offences, no alternative verdict has been provided in this case. (3) The accused should have been charged with uttering a false document under s. 342, Penal Code, which attracts a maximum penalty f life imprisonment. No provision has been made in the Criminal Procedure Code for alternative verdicts in this case. Moreover, ‘in general it is offensive to principle to substitute a charge carrying an entrance penalty for one with a relatively light penalty” the proceedings being too irregular to cure, the conviction is quashed.

(1969) H.C.D.

- 273 –

307. Mohamedali Husseinbhai v. R., Crim. App. 541-D-69, 27/8/69, Georges C. J.

The appellant, then the second accused, was charged with one Mhendi Hasham with the offence of stealing goods in transit c/s 269(c) and 265 of the Penal Code. It was alleged that they had stolen 7 bales of khangas from Gate No. 2, Tanzania shed, a place of deposit. The second accused was discharged at the close of the case for the prosecution, the learned magistrate accepting that he had no case to answer. The appellant was convicted and sentenced to 18 months imprisonment. There was evidence that 7 bales of khangas have been stolen from the shed on the night of the 10^th /11^th of December, 1968. The khangas had special marks and the owners did not distribute the remainder while inquiries were pending. As a result of information received the police went to the shop of Nasarali Jamal at Singida. There they found 132 pair of the stolen khang. Nasarali’s wife informed the police that she thought that the khangas had been sent by Mhendi Hasham, the first accused, on 2^nd January, 1969 the police called on Hasham and found in his shop 136 pairs of the stolen khangas. He told the police that he had dispatched the khangas to Nazarali at Singida and that he had also sold identical khangas to Abdul Malik Shariff of Korogwe. The police recovered 244 pairs from that shop on 3^rd January. Hasham told the police that he had purchased the khanga from the appellant. On receiving this information the police went with Hasham to the appellant’s shop nearby and found 2 pairs of the stolen khangas. It is not clear fro his evidence whether Hasham repeated I the shop in the presence of eh appellant the accusation that it was the appellant who had sold him the khanga. From the shop both suspects ere taken to the police station. They were questioned. Hasham made a statement, not particularly full of details, setting out that he had purchased the khangas from the appellant on 16. 12. 68. The appellant stated that he would say nothing then, but would make a statement in Court. At the hearing he testified that he had bought the khangas from Hasham on 28^th January, 1968. he added that he had heard the 1^st accused i.e. Hasham – say that he had bought the khanga from him, the appellant, and had replied that that was not so and that it was Hasham who had sold the two pairs to him. Several grounds of appeal have been advanced challenging the appellant’s conviction: (a) that the learned magistrate had relied on the statement of the 1^st accused to convict the appellant and that that statement was not evidence against the appellant; (b) that in any event that statement was the statement of an accomplice and was uncorroborated since the alleged failure of the appellant to deny it was not corroboration. In particular the magistrate should not have drawn an inference adverse to the appellant from his failure to make a statement to the police.

Held: (1) “In the first place I do not agree that the learned magistrate used the statement of the 1^st accused as evidence against the appellant. It is true that nowhere in his judgment does he state specifically that he has not done so, but I think if fair to say that the judgment read as a whole makes this clear ….. I agree that the statement of the 1^st accused was not evidence against the appellant. Even if it had been a confession, which it was not, s. 33 of the Evidence Act would make it inadmissible. The leaned magistrate did not, however, use it as evidence against the appellant and he cannot be successfully criticized on that ground.”

(1969) H. C. D.

- 274 –

(2) “Kesaria addressed me at length in a fully developed argument on the question as to how far silence under accusation can be held to be corroborative. As I have indicated, I am not at all satisfied that this argument is relevant in the circumstance under consideration but out of deference to the arguments of counsel I shall examine them …. Mr. Kasaria referred to number of English authorities. In R. v. Marsh (1925) 19 Cr. App. Rep. 27 the Court of Criminal Appeal held that the mere silence of an accused person when charged with a sexual offence was not corroboration of the evidence of the prosecutrix. In R v. Job Whitehead (1925) 21 Cr. App. Rep. 23 the appellant was charged with unlawful carnal knowledge of a girl under 16. The trial judge directed the jury that it was for them to decide whether the appellant’s reply that he did not want to say anything then when served with the summons in the case was corroboration. It was held that this was misdirection. On the other hand in a case not cited by counsel R. v. Marx Peigambaum (1919) 14 Cr. App. Re. 1 the Court of Criminal Appeal held that non denial of an accomplice’s in criminal statement could be corroboration. In that case three boys were caught stealing sacks o f horse fodder. They gave statements incriminating the appellant as the person inciting them a policeman visited his shop and told him that he would arrest him on the ground that he was an accessory. The policeman told him what the boys had said and later read over their statements to him. On neither occasion did he make any reply. The trial judge directed the jury that they could consider whether the appellant’s silence was not corroboration of the story given by the three boys. The Court of Criminal Appeal held that in the circumstances of the case it would have been a misdirection to tell the jury that there was no corroboration of the testimony given by the boys…. The approach taken in Feigambaum appears to me to be quite consistent with common sense and in no way prejudicial to the accused. At no stage should any pressure be brought upon an accused person to make any admission of his quilt. In that sense he must always be warned that he is to make a statement only if he wishes to. This, however, should not afford a reason for failing to give an explanation when enquiries are in progress if an innocent explanation is possible. At the stage of the trial when an accused is warned at the close of the preliminary enquiry or called upon to answer at the close of the case for the prosecution other considerations apply. The stage of enquiry is over. Adversary procedures to establish guilt are in progress. The accused may then be advised to adopt a particular course and his alliance should not be held to corroborate anything. It should be noted, however, that even at the trial failure by an accused to give the innocent explanation for patently incrimination circumstances may well be held against him if the explanation is one which is peculiarly within his own knowledge. Had the circumstances here been such that the issue was one as to whether there was corroboration of the first accused’s statement in the appellant’s failure to deny it I would have held that there was. As I said, however, this is not, in my view, the issue here”. (3) Appeal dismissed.

308. Jermiah Njau v. R., (PC)MCrim. App. 11-A-69, 23/8/69, Platt J.

The appellant was convicted of forcible entry c/s 85 Penal Code, and of malicious damage to property c/s 326(1), Penal Code. In 1957, the appellant had been allocated land in Kilimanjaro district by the headman. But it had never been formally conveyed to him because he had not brewed pombe for the headman. The

(1969) H.C.D.

- 275 –

Appellant had paid the headman Shs. 20/-, but as that person had been sent to prison, the money was refunded. The appellant stayed on the land, until he was transferred to Arusha and subsequently other places. In his absence, other people cultivated the land for him. In 1962 his wife returned to the land and in 1965, he found that people were interfering with it. A certain woman called Namikasia along with other women had occupied a portion of the land for the purpose of growing yams. It appears the appellant wrote to Namikasia and the other informing them that they must stop cultivating, but they ignored this letter. The appellant then went to see one Nderangusho, who appears to have occupied some relevant position of authority, and who ordered that the cultivating should stop until ownership of the land was ascertained. Nevertheless the woman continued cultivating. The appellant then entered upon the land occupied by the women and uprooted their yams, which actins gave rise to the present conviction.

Held: (1) “The facts of this case point out the questions involved in a charge of forcible entry and it may be as well to consider the purposes of section 85 in general… the section presupposes the situation where a person not in possession of land (we are not concerned here with tenements or buildings) takes possession of the land in a violent manner. Some examples of violence are given in the section but they are not necessarily exhaustive. (See Russell on Crime, 11th Ed. P. 315). What is required is evidence amounting to something more than a bare trespass. It may be that the accused is w\wither the order or not, of the land in question. If he is not the owner and has no right to take possession of the land, the case is usually simple to prove. But more often the accused has a reasonable claim to the land and he considers that the person in possession is a trespasser. There are other occasions when the accused is actually the owner of the land and the person in possession of it is indeed a trespasser. Nevertheless, if the person with the right of entry enters the land in a violent manner, he will be liable under the section. It is for this reason that the second paragraph of the section specifically provides that it is immaterial whether the person entering has the right to enter, and the only exception is that he is not guilty of the offence if he takes possession from his servant or bailiff. Now as learned Counsel pointed out, the general law of Tort provides that a person who is in possession of land but who finds trespassers upon it, is always entitled to enter or re-enter his land and may use reasonable force to evict the trespasser and may even pull down any building erected by the trespasser (so long as it is not inhabited by him). If he uses reasonable force, he will not be liable under the civil law. This is clear from Hemmings v. Stoke Poges Golf Club (1920) 1 K.B. 720 (See also Russell ibid; Salmond on Torts 13^th Ed. 804; and Windfield on Tort 7^th Ed. 385). Nevertheless, he may still be liable under unreasonable force is used, the person who enters will be liable both criminally and civilly, Whereas if reasonable force is used, he may be liable criminally but will not be liable at civil law. The purpose of the criminal law is that a person should make entry neither with strong hand nor with multitude of people but only in a peaceable and easy manner”, because otherwise there may be unnecessary tumults or breaches of the peace. Thus to some extent the criminal law acts as a check upon the right of self help given by the civil law to a person to re-possess his land. (2) “First of all, there is the question of what right

(1969) H.C.D.

- 276 –

The appellant had to the land. It was found by the trial court that he had no legal right to it because when the land was allocated to the appellant, it had never been formally handed over ….. I accept the opinion of the assessors that at the time the transaction took place in 1957, it was necessary for that formality to be complied with and that with such compliance; if the Local Authority had wished to re-allocate the land, it would have been within its rights to do so. (There have been one or recent cases on this specific point. I am not clear however why it was not considered that he formality had not been complied which in view of the fact that the appellant had paid money in lieu of brewing pombe. If it was not a sufficient substitute, the money should not have been accepted. Possibly as the money was returned, it was thought later on to be insufficient by the appellant appears to have acted in a way which was a sufficient compliance and indeed it is not disputed that he had been permitted to develop the land)…. It seems that the witness Namikasia, wife of Anael, had occupied the portion of the land for the purpose of growing yams. She did not claim that she had been granted the land or state in what way she could claim it hers. It appears to have been assumed that she had obtained the land from the Local Authority; the appellant was entitled to consider that the land was his and on general equitable principles, he must surely have been entitled to call for the formal conveyance at any time. I agree with learned Counsel therefore that he appellant had the right to the possession of the land and that Namikasia had no right to it in the absence of her gaining superior title to the appellant or coming to an agreement with him permitting her to cultivate on it.” (3) “The question then is whether it can be said that the appellant made a forcible entry. He did not use any force to the women nor had he gone with an unusual number of people. It seems that he had gained help in preserving his rights, and that as the women were told not to cultivate there, that he had taken possession peaceably of the portion on which they cultivated and on which he considered they had trespassed. As it appears possible that the incident took place after that time, and that the women had continued to cultivate, the appellant had then asserted his rights by up-rooting the yams. It seems to follow therefore that being already in possession of the land, he could not be said to have “entered” forcibly. Had it been ca case where the appellant having retuned after an absence and finding trespassers upon his land, had then simply taken possession and removed the trespassers forcibly or destroyed their property, that the conviction might have been valid, because it was immaterial that he had the right to reenter. But that was not the case here, for it must be assumed that he had given notice and had been enabled to take possession before he had destroyed the yams. Accordingly I agree with Defense Counsel that the conviction on the first count cannot be supported.” (4) “It follows further that if the appellant had the right to occupy the land, and without making a forcible entry, he had occupied the land, he was entitled to remove the property of the women. It cannot then be said that he had unlawfully damaged their property. It would have been better, nor doubt, had he come to an arrangement with eh women, so that they could remove their yams for planting elsewhere, or allowed them some time to harvest the yams. But it must be remembered that hey were not periodic crops, but perennial crops. It was not a question or crops like maize. Consequently the conviction on the second could was equally unsupportable.” (5) Appeal allowed and convictions quashed.

(1969) H.C.D.

- 277 –

310. James s/o Jacob and another v. R. Crim. App. 497-D-69, 11/8/69 Georges C. J.

The appellants were convicted of robbery with violence c/s 286, Penal Code. Their appeal raised no serious issues and was rejected. The case is of interest only by reason of the following comment made by the judge on a question of evidence.

Held: “It should be noted ….. that the first appellant was cross-examined about a statement which he had made to the police and which appeared to contradict the evidence which he gave before the magistrate. In that statement it was suggested to him that he had admitted having been at the pombe shop with Vincent Adenda and having left together with him tough he denied having robbed him. This statement was not tendered in evidence. Normally when accused persons make statements which are not confessions they should be tendered in evidence as part of the case for the prosecution. If they are not so tendered, but are used for the purpose of cross-examination and their contents are not admitted, then also they should be tendered as evidence, as otherwise the magistrate may be tempted to base his findings on the suggestions put forward in cross-examination as to the contents of the statements, suggestions which would not be supported by evidence if the statement, itself is not put in. in this case I am satisfied that there is no injustice as the judgment of the learned magistrate is not based on the alleged contents of the statement,”

311. Bakari s/o Hamisi v. R. Crim. App. 742-D-69, 29/10/69, Georges C. J.

The appellant was driving a motor car along Masasi/Lindi Road at about 1 P.M when a bus which was traveling in the opposite direction stopped some distance away from him. Passengers came off the bus, and one of them attempted to cross the road, coming from behind the bus in so doing. The appellant collided with one of these persons. Unfortunately it turned but to be a pregnant woman. Her leg was broken and had to be amputated. She had a miscarriage and suffered a very severe cut in the area between her anus and her vagina. The appellant pleaded guilty to dangerous driving and he has not challenged this plea. The learned magistrate sentenced the appellant to 18 months imprisonment. Appeal from sentence only.

Held (1) “I think it may be stated as a general principle that in traffic offences, other than causing death by dangerous driving, where the accused is a first offender punishment should be by way of fine rather than by way of imprisonment. The fact that section 45 of the Traffic Ordinance cap. 168 itself lays down both a term of imprisonment and a fine as a method of punishment would indicate that the legislature contemplated that this was the type of offence in which a fine would normally be appropriate. It is somewhat difficult to understand why the learned magistrate arrived at the figure of 18 months imprisonment……” (2) “Significantly the learned magistrate did not suspend the appellant’s driving license in this case. Suspension of a driving licence is one of the most appropriate punishments in the case of serious driving offences. If the learned magistrate thought that the appellant’s driving was so atrocious as to deserve imprisonment for a period as long as 18 months then clearly the appellant was the sort of person who should be kept off the road for a considerable period in order to protect other road users.” (3) It may be that the severity of the injury suffered by the pedestrian may have affected his judgment. For my part, I would not think that the severity of the injury suffered by the victim as the result of dangerous driving should be a factor of great relevance in arranging at the punishment which should be imposed on the offender. What ought to be considered

(1969) H.C.D.

-278 –

Is the recklessness of the act, having regard to the nature condition, the use of the road and the amount of traffic which was actually on it at the time or which could reasonable be expected on it. The appellant was not driving at a rate of speed which could be called excessive. His act of negligence was failure to keep a sharp look in circumstances when he ought to have known that a careless pedestrian might attempt to cross the road from the back of the bus. This negligence is grave enough to be described as dangerous, but in my view cannot merit the imposition of prison term on first offender.” (4) Appeal allowed and sentence varied to a fine of Shs. 350/-. Or 4 months imprisonment in default as well as suspension of driving licence for 12 months.

312. Umbwa Mbegu and another v. R., Misc Crim. App. 25-D-68, 12/4/69, Hamlyn. J.

The accused were charged with four counts of assault causing actual bodily harm c/s 241, Penal Code. In the middle of the trial they decided to plead guilty, and the magistrate thereupon made an order for “reconciliation” under s. 134, Criminal Procedure Code, and also ordered compensation to the four complainants. One of these complainants is now appealing against this order, on the grounds that he had been aggrieved by it.

Held: (1) “The first point which falls for decision in this matter is the question of whether the appellant has in fact any right of appeal to this Court ….. Appeals in criminal matters are governed by the provisions of Section 312 of the Procedure Code, which reads:- “Save as hereinafter provided, any person aggrieved by any fining, sentence or order made or passed by a subordinate court … may appeal to the High Court. The question which now arises is whether the appellant is a “person aggrieved” by the order passed by the lower court. Certainly he was not a party to those proceedings; he was it is true, a person injured by the assault, but he was not the prosecutor in the case. That was the Republic, nor was the proceedings brought by one who had obtained the leave of the court to conduct a prosecution as a private person. Jumbe Mohamed Tambaza v. Hashil Hemed and another (1960) E.A.L.R. 527 laid down the proposition that a private prosecutor has no right to appeal by way of case stated against an acquittal – a decision which, though not on all fours with the present case, is at least indicative of the underlying principles which were are investigating. I think that some assistance can be obtained from a consideration of section 81(1) of the Criminal Procedure Code…..From the wording of this section it seems clear that the conduct of “any criminal case” is in the hands of the Republic and that, despite a private person conducting the prosecution, and despite a complainant having by his complaint having by his complaint instigated the proceedings, the two parties before the Court are in reality the Republic and the accused. What then of the “person aggrieved by any order” spoken of in section 312 of the Code, for he is given the right of in section 312 of the Code, for he is given the right of appeal… section 21(1) of the Magistrates’ Courts Act (Cap. 537) provides for appeals from District Court in matters originating in Primary Courts to the High Court While again this is not the background to the present case, it at least indicates the basic grounds on which appeals are rooted. It provides that in criminal proceedings the Direct of Public Prosecutions alone may appeal to the High Court, while in “any other proceedings” any party “If aggrieved” may appeal. The provision of that section were pointed out

(1969) H.C.D.

- 279 –

by this Court in the case of Katamba Mwaisunga v. Republic 1967 H.C.D. n. 58 and while, as I say, it has no direct bearing on the present case, it seems to be in accordance with the thesis that the only persons before the court as parties (and who can therefore be “aggrieved”) are Attorney General and the accused persons. It is established law that a right of appeal can only be given by statue and in that case only by words which are clear, express and free from ambiguity. I consider that the wording of section 312(1) of the Criminal Procedure Code is not so clear as to give the appellant the right to come before this Court as a “person aggrieved.” I think that the appellant might well have considered that he always had a civil remedy, in damages and, though it is true that in such action the court should bear in mind the amount of any sum which he had recovered in the criminal matter, the award of the lower court in this case does not preclude additional compensation from being sought in the civil courts. It is therefore a little difficult to see in what the appellant is aggrieved by the order of the District Court. In the event it appears clear that the appellant has no status in this Court and that his appeal is misconceived. He was neither a party to the lower court proceedings, nor can he be heard by this Court. Accordingly his appeal must be and is hereby dismissed. (2) “One other matter however remains for this Court to decide and that must be done in its reversionary powers under Section 329(1) of the Criminal Procedure Code ….. The order of the District Court, which I have found to be made under Section 134 of the Code, purported to impose upon-the respondents an obligation to pay a sum of money to the appellant and others. While the respondents have not expressed any dissatisfaction with the order, the appellant clearly is in no agreement with it; else he would not have instituted these proceedings in this Court. Section 134 provides for the making of such Order where two conditions exist. The first is that the case is one in which such Orders are permissible and Republic v. Saidi Ibrahim (1960) E.A.L.R. 1058 discusses the scope of the section. At p. 1061 the Court said: - “All felonies are expressly excluded. And from the express inclusion of common assault, it would seem that other kinds of assault constituting only misdemeanors, as for instance assault causing actual bodily harm, are excluded by implication.” Following this opinion as I do, it seems evidence that the District Court had no jurisdiction to deal with the matter as on falling within section 134 and that consequently the Order made by it was a nullity.” (3) “A second consideration also makes it appear that the Court’s order cannot stand. That is (and I have already referred to this) that the making of such Order presupposes an agreement between accused, complainant and court as to the terms of the Order. “Reconciliation” connotes a restoration o harmony between the injured person and the guilty party and consonance can only be achieved by consents; it cannot be imposed by fiat from above upon an unwilling recipient. In this I consider that the trial magistrate was wrong, for it does not appear from the record that any consent was given to the terms of the settlement. It was contemplated by the section.” (4) Proceedings declared void and order set aside, with option to start fresh proceedings. (Editors’ Note: as to whether or not reconciliation can by ordered in assault cases other that common assault, see Mackreyo Kingu s/o Nakala v. R., (1968) H.C.D. n. 105, which impliedly takes the opposite view).

(1969) H.C.D

- 280 –

313. Willson s/o Katanda v. R., Crim. App. 585-D-69, 1/10/69, Georges C. J.

The appellant was convicted of robbary with violence c/ss 285 and 286 of the Penal Code, and assault causing actual bodily harm c/s 241 of the Penal Code. The case for the prosecution was that the appellant had managed to take two guns away from a party of policemen who were on patrol at Kunduchi. There had been an incident at Kunduchi earlier that day and a group of four policemen were patrolling the area that night. They came upon a group of men who were apparently gambling. As they approached the man scattered and the police gave chase. The appellant went off into ambush and pounced on the policemen with the machine gun she passed, struck him on the shoulder with a knife and in the ensuing struggle took away his machine gun. Having done this he ran away. He was chased and ran to a house and ran to a house. There he was confronted by the other armed policeman. The appellant made a stabbing motion at this policeman who jumped to avoid it. As he did so his gun fell and the appellant picked it up. He was now in possession of both guns. He remained leaning against the wall of the house with the rifle hanging on his shoulder, the machine gun at his feet, and the knife in his hand, threatening to kill anyone who approached, Someone managed to pass behind him and take hold of the machine gun, whereupon the appellant ran away with the rifle. Appellant later was arrested.

Held: “I am satisfied that the conviction for robbery cannot stand. Robbery consists of stealing by the use of force. It is essential therefore to establish theft. Section 256 of the Penal Code…… defines exhaustively the various methods by which a fraudulent intention can be established. None of the intention set out in sub-section (2) can be said to have been established in this case. There was no evidence from which another inference could be drawn that the appellant intended to deprive the policemen permanently or their guns, or that he intended to use them as a pledge or security, or that he intended to part with the on a condition as to their return which he would have been unable to perform, or that he intended to deal with them n such a manner that they could not be returned in the condition in which they were at the time of taking or converting. The facts proved appear to me to establish no more than interference and an obstruction of the policemen in the performance of their duty. In the course of this obstruction one of the policemen was wounded. The conviction for assault causing actual bodily harm is therefore confirmed. The conviction for robbery is set aside and the sentenced quashed.”

314. Cletusi s/o Seffu v. R., Crim. App. 433-D-69, 13/8/69, Georges C. J.

This is an appeal from a ruling by a magistrate rejecting an application by the appellant that the hearing of the charge against him be transferred to another magistrate. In the proceedings the appellant is recorded as basing his application on an alleged statement by a police sergeant that he (the sergeant had so arranged matters that he appellant would be jailed whether there was sufficient evidence to justify this or not.

Held: (1) “I am satisfied that [these allegations] are not a sufficient reason for transferring the case. They do not involve the magistrate, even if true. A police sergeant may quite improperly frighten an accused person by stating that he has arranged matters so that the accused will in any event be convicted, but in the absence of any special connection between the magistrate and that sergeant, there is no basis for saying

(1969) H.C.D.

- 281 –

That justice will not be done or will not manifestly appear to be done. If the threat is believed, then the mere change of magistrate will not help for there is the possibility that arrangements could have been made with the new magistrate as well.” (2) “Apart from this, I am not convinced that an appeal can competently be lodged from an order of this nature. Section 312 of the Criminal Procedure code, Cap. 20. Reads, in part, as follows: “Save as hereinafter provided any person aggrieved by any finding, sentence or order made or passed by a subordinate court … may appeal to the High Court …. On the face of it, the section appears wide enough to include any order or finding made by a subordinate court. It could, for example, include a ruling after a trial within a trial that confession is admissible, or a ruling after a no case submission that there was a case to answer. I do not think it could have been contemplated that there would be a pause at such junctures of a trial to allow the accused person to challenge such orders. If that were the case, then there would be a duty on the part of the magistrate to inform the accused of his right of appeal and the necessary delay to enable him to make his mind up about it. The proper view to me would be that finding or order is appeal able in a criminal proceeding only when it is part of an order convicting or acquitting the accused person, thus finally disposing of the matter, or when the code contains a specific provision enabling an appeal to be filed from such an order. (Referring to Marbruk s/o Orangai v. R., (1948) 1 T.L.R. 311) ….. I cannot think that section 312 contemplates appeals from interlocutory orders in criminal appeals. Accordingly. I would hold also that the appellant had no right of appeal. His appeal is accordingly dismissed.” (3) In view of irregularities at the trial, however, a new trial is ordered before another magistrate.

315. Ramadhani Juma and others v. R., Crim. App. 265-A-68, 15/10/69, Platt J.

The appellants were convicted of theft by servant c/ss 271 and 265, Penal Code. In the course of his judgment, the magistrate referred to an unaffirmed statement made by the third appellant at the trial as corroboration for other evidence implicating the other appellants.

Held: (1) An unaffirmed statement is not evidence in a case generally, and can only be taken into account for or against the author of the statement personally. It cannot be used as against other accused. (2) For other reasons, appeals dismissed.

(1969) H. C. D.

Volume 111, No. 12 December, 1969

309 Ramadhani s/o Bakari v. R., Crim. App. 216-D-68, 19/5/69, Hamlyn J.

The appellant was convicted of housebreaking c/s 294(1), Penal Code. The appellant occupied a room in the house where the complainant – one Clementine – also resided. At about 7 a.m. On the day in question, the complainant left her room to go to the market; she locked the door before leaving. It appears that, though each room of the house is separated from its neighbor by a wall, such division does not reach up to the apex of the roof but goes only part-way; there is no ceiling in any of these rooms. The complainant returned to her room at about 11 a.m. and found the appellant climbing the intervening wall on the way back to his own chamber. The alarm was raised and the accused’s room visited room in such position as would enable him to mount it and to climb over the top of the separating partition. The complainant examined he belongings and found a sum of Shs. 12/- silver had disappeared from beneath her mattress. The accused man was arrested upon the charge on which he was tried.

Held: “The only matter for consideration in this appeal is the question of whether to facts as found by the learned magistrate constitute the offence of house-breaking. Learned counsel for the Republic supported the conviction, maintaining that the breaking and entering which from necessary ingredients of the offence have both been demonstrated. This is undoubtedly true in so far as the “entering” by the appellant of the room of the complainant is concerned and there is abundant evidence of this. But what of the “breaking?” it is trite law that “breaking” may be an actual breaking of the house, or may amount to breaking of a more technical or constructive nature, as for instance when doors or windows properly shut but unsecured inside are opened. There are numerous authorities which distinguish between instances where a door or window is shut and latched and one where it has been left ajar. In the former case there is a breaking, while in the latter the element of “breaking” is absent. The distinction appears to be one which has in it a notional element. The authorities appear to regard an aperture needlessly left open, as it were an implicit invitation to enter or at the least as a situation not proclaiming a state of inviolability of the premises concerned. The leaving ajar of a door consequently has not the express implication security that a closely door denotes. As was said by the court in Rex v. Springgs and Hancock. 174 E. R. 122:- “If a man chooses to leave an opening in the wall or proof of his house instead of a fastened window, he must take the consequences. The entry through such an opening is not a breaking.” The court distinguished, in Rev. v. William Brice 168 E.R. 892, entry through a chimney on the grounds that such aperture is left open permanently on necessity. And in Rex v. James Lewis & Another 172 E.R. 285 the court held that entry through an aperture in a collar window to admit light, through which a thief entered at night, is not burglary, Vaughan, E. observing: - “Do you think that if a person leaves a hole in the side of his house big enough for a man to walk in, a person entering at it with intent to steal goods would be guilty of burglary? I think not and I am of opinion that this is not a burglary.” Now applying the principles which seem to be disclosed in these cases, it would appear that the partial screening-off only between the two rooms (which of course constitute separate “dwelling- houses) does not express any state of inviolability which must be breached before the offence of burglary can be committed. The opening above the common wall between the two rooms is not left for any purpose – save perhaps by reason of the costs of construction.

(1969) H.C.D.

While it may, it is true, contribute to some extent to the ventilation of the separate premises, there seems to be no real reason, let alone necessity, for the existence of this aperture, and it clearly precludes that apparent semblance of security which I think forms a necessary constituent of a dwelling-house before it can be breached and made the subject of burglarious entry. As a consequent result therefore, no offence of house-breaking is disclosed, for one of the ingredients thereof – a breaking – is clearly absent. Appeal allowed and conviction quashed.

Recent Posts

TANZANIA HIGH COURT DIGEST Volume 111 1969

Posted by A Lawyer.

Post a Comment

0 Comments

Labels

Featured post

Academic Publication Services Tanzania.

Pay 3

Most Popular

Yohana Mujuni v. Isaya s/o Bakobi, (PC) Civ. App. 123-M-68, 8/10/68, Seaton J.

City Painters v. Guisepee Licalsi t/a Italian Builder Contractor, Bankruptcy Cause 1-DSM-71, 6/672, Biron, J.

Walter Jager v. Cordura Ltd. t/a Tanganyika Tourist Hotels and Oyster Bay Hotel, Civ. Case 120-DSM-71, 1/6/72, Onyiuke, J.

Contact form

Ad Code

Recent Posts

TANZANIA HIGH COURT DIGEST Volume 111 1969

Posted by A Lawyer.

You may like these posts

Post a Comment

0 Comments

Social Plugin

Labels

Featured post

Academic Publication Services Tanzania.

Pay 3

Karibu, Msomi.

Most Popular

Yohana Mujuni v. Isaya s/o Bakobi, (PC) Civ. App. 123-M-68, 8/10/68, Seaton J.

City Painters v. Guisepee Licalsi t/a Italian Builder Contractor, Bankruptcy Cause 1-DSM-71, 6/672, Biron, J.

Walter Jager v. Cordura Ltd. t/a Tanganyika Tourist Hotels and Oyster Bay Hotel, Civ. Case 120-DSM-71, 1/6/72, Onyiuke, J.

Contact form