Unit 1

Sources Of Laws In Tanzania and their Classifications

Contents:

• Objectives
• Introduction
• The Meaning of Sources of Laws
• Sources of Laws in Tanzania
• Classification of Law
• Summary

Objectives
The objectives of this unit are:

• To state what law is.

• To explain the meaning of sources of law.
• To identify the main sources of law in Tanzania.
• To outline the different classifications of law.

Learning Outcome
After studying this Unit you should be able to:

• State what law is.

• Understand the meaning of sources of law.
• Identify the main sources of law in Tanzania.
• Understand what laws apply in Tanzania.
• Appreciate the general classification of law.

1.1 Introduction

Law may be defined as a body of rules designed to regulate or govern human conduct, which is
recognized as valid within a particular state and which is enforced by its officials through its courts
of law. It is both permissive by allowing individuals to establish their own legal relations with rights
and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its
regulations. Each individual rule is “a law” as distinct from “the law” which refers to the entire body
of rules.
This Unit introduces you to the different sources of laws in Tanzania and their classifications. The
main objective of the Unit is to enable you to appreciate that every law has its own source. It also
deals with the different classifications of law according to their source, origin, their function or the
subject matter that it deals with.

1.2 The Meaning of Sources of Laws

By sources of law, we mean the various factors that give rise to law. A source of law may also be
said to be the basis of the law. In broader terms, sources of law refer to:

• The authority, which gives force to the rules of law e.g. the Parliament.
• The means or processes by which new principles become part of the body of law laws
e.g. legislation and judicial adjudication which gives rise to precedents and case law.
• Where the rules of law are to be found e.g. law reports, statutes and any other written
material.
• The causes which induce the creation of law, although the causes do not create the
law thereof e.g. historical sources, religious bases and moral standards.

1.3 Sources of Laws in Tanzania

1.3.1 The Constitution

A constitution may be defined as a document or scheme, which establishes the country’s
government, defining the power and limits of the three arms of the state i.e. the Parliament, the
Judiciary and the Executive. It lays down necessary checks and balances in the manner the three
arms of the state are to exercise their functions and also defines the relationship between the state
and its citizens in terms of rights and obligations so as to prevent any government from exceeding
its powers.
A constitution is the supreme law of any country from which all other laws whether written or
unwritten derive their validity. This means that, no law is valid if it contravenes the provisions of
the constitution.
Tanzania has two written constitutions, that is:

• The Constitution of the United Republic of Tanzania of 1977 (as amended from time
to time) for the Union as well as for Mainland Tanzania and;
• The Zanzibar Constitution of 1984 for the isles of Unguja and Pemba.

Under the Constitution of the United Republic of Tanzania of 1977, legislative power relating to
union matters and also in relation to all matters concerning Mainland Tanzania is vested in the
Parliament for the whole United Republic of Tanzania. On the other hand legislative power in
Tanzania Zanzibar, over all matters, which are not union matters, is vested in the House of
Representatives. (See Articles 64(1) and 64(2) of the Constitution of the United Republic of
Tanzania of 1977 as amended by Act No. 15 of 1984).
The Parliament of the United Republic of Tanzania cannot pass laws to bind the state of Zanzibar
in non-union matters. Article 64(5) of the Constitution of the United Republic of Tanzania states
that:
“Without prejudice to the application of the Constitution of Zanzibar in accordance with this
constitution concerning all matters pertaining to Tanzania Zanzibar which are not Union matters,
this constitution shall have the force of law in the whole of the United Republic, and in the event
any other law conflicts with the provisions contained in this constitution, the constitution shall
prevail and that other law, to extent of the inconsistency with the constitution, shall be void.”
Union matters are listed under the First Schedule to the Constitution of the United Republic of
Tanzania, 1977. They include among other things, all matters concerning coinage, currency for
the purpose of legal tender (including notes), banks (including savings banks) and all banking
business, foreign exchange and control and the Court of Appeal of the United Republic of
Tanzania. Therefore, laws governing banking business and currency apply to the whole of the
United Republic of Tanzania.

1.3.2 Statutes
(a) What are Statutes?
The word statutes refer to those pieces of legislation enacted by or made under the authority of
the Parliament. Each piece of legislation that is enacted by the Parliament is embodied in a statute
called an Act of Parliament.
Initially a statute starts as a Bill (draft law), which has to be tabled before the National Assembly.
Once the National Assembly passes the Bill, to become an Act of Parliament (i.e. law), it must be
assented to by the President. Legislation (another term for statutes) enacted by Parliament in
Tanzania is on many subjects the most important source of law in the country. Statutes operate as
mini code of law on a particular subject, which courts use when deciding cases. The business of
banking for instance is largely regulated by statute e.g. rules concerning establishment of a bank,
licensing, taxation, and employment and industrial relations are matters that are statutorily
determined.
Statutes that are passed by Parliament are also known as Principal legislation so as to
distinguish them from delegated legislation, which is another type of statute that we are going to
consider here below. Some of the present legislation in Tanzania were made before independence
and were enacted by the Legislative Council for Tanganyika (LEGICO) and the Governor in
Council. These statutes are called Ordinances, e.g. The Companies Ordinance, Cap. 212, and
the Land Registration Ordinance Cap.334.

Learner Activity 1
List down at least four Acts of Parliament (legislation), which
affect the business of banking in Tanzania.
1.3.3 Delegated Legislation
An Act of Parliament may empower a person(s) or an institution to make rules to govern particular
spheres of conduct or for carrying out the purposes and provisions of that Act. The rules that are
made under the authority conferred by an Act of Parliament are called delegated legislation (also
called subsidiary legislation).
Under the Interpretation of Laws Act, 1996, No.4 of 1996, which is the law governing the
interpretation of laws, subsidiary legislation is defined to mean, “any order, proclamation, rule, rule
of court, regulation, order notice, by-law or instrument made under any Act or other lawful
authority”.
The Act conferring the power to make delegated legislation is called the Parent Act and the
particular section that confers the power is known as the enabling section. For example, the
Banking and Financial Institutions Regulations, 1997, were made by the Governor of the Bank of
Tanzania pursuant to powers conferred on him under Section 51(1) of the Banking and Financial
Institutions Act, 1991. The former constitutes the delegated legislation, while the latter is the parent
Act.
Often, powers to make delegated legislation are delegated to Ministers, Local Government
Authorities e.g. town and municipal councils, Heads of Departments and other public bodies and
in a few cases to the President acting on advice. The Judicature And Application of Laws
Ordinance, Cap.453 for example, empowers the Chief Justice as the head of the judiciary, to make
rules for regulating the practice and procedures of the High Court and all other courts established
in Tanzania.
A delegated legislation must be consistent with the provision of the written law under which it is
made; otherwise it shall be void to the extent of any its inconsistency. Therefore the words and
expressions used in the delegated legislation shall have the same respective meaning as in the
written law under which it is made. A court of law may declare a delegated legislation, which is
made outside the powers conferred by the parent Act to be ultra vires and void on the application
of an interested party. Ultra vires means in excess or outside powers upon the person or authority
making the by- law.

Learner Activity 2
Under the Constitution, power to make law is vested in the National
Assembly. Find out the reasons why Parliament delegates its powers to make
laws.
1.3.4 Customary and Islamic Law
(a) Customary Law
According to the Interpretation of Laws Act of 1996, customary law means “Any rule or body of
rules whereby rights and duties are acquired or imposed, established by usage in any African
community in Tanzania and accepted by such community in general as having the force of law,
and includes any declaration or modification of customary modification of customary law made or
deemed to have been made under section 9A of the Judicature and Application of Laws Ordinance
and references to “native law’ or “native custom” shall be similarly construed”.
Customary law therefore, denotes law originating from tribal customs of African people. A custom
may be defined as a rule regulating behavior and reflecting to some extent the ideas and pre-
occupations of the community within which it functions. When we talk of customary law, a
distinction is made between legally binding custom and any other custom. In legal terms, only
customs that are recognised by courts of law or sanctioned by law constitute customary law.
The principal characteristics of customary law as derived from the above definition are as follows:

• It only includes rules or custom established by usage (meaning an established

practice)
• The rules are accepted or recognised as law (as opposed to mere social norms, the
breach of which attracts no sanctions).
 • Only usage that is recognized as established by people in a Tanzanian African
Community would in Tanzania qualify as a customary law.

(b) Application of Customary Law

Customary criminal law was abolished in 1963 and therefore the present written law takes no
account of it. The application of customary law is thus confined to cases of civil nature and in
particular to such matters like marriage, divorce, guardianship, succession and other matters in
respect of which rules of customary law are established and accepted as having a force of law.
Some of the customary rules (of the patrilineal tribes) pertaining to personal matters exist in a
codified form under the Customary Law (Declaration) Order No. 1 of 1963, GN. 279 of 1963 and
Customary Law (Declaration) Order No. 4 of 1963 GN 436 of 1963.
Section 9(1) of the Judicature and Application of Laws Ordinance Cap.453 governs the application
of customary law. According to this provision, customary law is to be applied to matters of civil
nature:
(a) Between members of community in which rules of customary law relevant to the matter are
established and accepted or between a member of one community and a member of another
community if the rules of customary law of both communities make similar provisions for the matter;
(b) Relating to any matter of status or succession to a person who is or was a member of a
community in which rules of customary law relevant to the matter are established and accepted;
or
(c) In any other case in which by reason of the connection of the relevant issue with customary
right or obligation, it is appropriate that the defendant be treated as a member of the community in
which such right or obligation arise and it is fitting and just that the matter be dealt with in
accordance with customary law instead of the law that would otherwise be applicable.
However the latter clause excludes situations or cases where it is apparent from the nature of any
relevant act or transaction, manner of life or business, that the matter is or was to be regulated
otherwise than by customary law. On the other hand customary law will not cease to be applicable
on account of any act or transaction designed to avoid for an unjust purpose the applicability of
customary law.
According to section 9(3) of the Judicature and Application of Laws Ordinance Cap.453, “ In any
proceedings where the law applicable is customary law, the court shall apply the customary law
prevailing within the area of its local jurisdiction or if there is more than one such law, the law
applicable in the area in which the act transaction or matter occurred or arose, unless it is satisfied
that the proper customary law to be applied is some other law”.
A proviso (meaning a paragraph which qualifies a previous or the main paragraph in a section) to
section 9(3) of the of the Judicature and Application of Laws Ordinance Cap.453 states that:
… The court shall not apply any rule or practice of customary law which is abolished, prohibited,
punishable declared unlawful or expressly or impliedly disapplied or is superceded by any
Ordinance or Act of Tanzania.
(c) Customary Law and Statutory Law
The question whether customary law is of inferior status to statutory law was considered in the
case of Maagwi Kimito v. Gibeno Warema (1984). In its decision, the High Court in this case stated
that:
The customary laws of this country, have the same status in our courts as any law, subject only to
the Constitution and any statutory law that may provide to the contrary.
(d) Islamic Law
Islamic law refers to a set of binding norms deriving from the Holy Quran. Islamic law applies in
Tanzania by virtue of the second proviso to Section 9(1) of the Judicature and Application of Laws
Ordinance 1961 (as amended), which states that:
Nothing in this subsection shall preclude any court from applying the rules of Islamic law in matters
of marriage, divorce, guardianship, inheritance, waqf, and similar matters in relation to members
of a community which follow that law.
1.3.5 The Reception Clauses
As part of the colonial legacy, in ex-colonies like Tanzania, foreign laws, which were either enacted
by the legislatures of former colonial powers or otherwise developed and introduced in the colony
during the colonial period, continue to form part of the laws applicable in the independent states.
The term “Reception clauses” therefore refers to legal provisions providing for the application or
introduction of laws in the colonies, which were in force in the colonising country. The relevant
provision for colonial Tanganyika was Article 17(2) of the Tanganyika Order- in- Council of
1920 (a sort of constitution for the Tanganyika Territory.)
Article 17(2) of the Tanganyika Order- in- Council of 1920 required the High Court to exercise its
civil and criminal jurisdiction in conformity with the substance of common law, the doctrines of
equity and statutes of general application in force in England on the 22nd July 1920. This article
therefore came to be known as the “reception clause” while the date of the Order, the 22nd July
1920, is commonly known as the “reception date” of English law for Tanzania.
The Tanganyika Order - in - Council of 1920 ceased to operate immediately after Tanganyika
[Tanzania] got independence. The Judicature and Application of Laws Ordinance, 1961 Cap.453
(JALO) was passed in its stead to declare the Jurisdiction of the High Court and Subordinate
Courts, and to apply and to recognise certain laws. Section 2(2) of the JALO, provides for laws
that are applicable in Tanzania. It states that :
Subject to the provision of this Ordinance the jurisdiction of the High court shall be exercised in
conformity with the written laws which are in force in Tanganyika on the date on which this
Ordinance comes into operation (including the laws applied by this Ordinance) or which may
hereafter be applied or enacted, 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 statutes of general application in force in England on the 22nd day of July 1920.
Note: Section 2(2) of the JALO constitutes the present general reception clause for Tanzania and
is phrased in more or less the same terms as Article 17(2) of the Order in Council, 1920, with the
same reception date.
(a) Received Law
Section 2 (2) of the JALO provides for the application of English common law, doctrines of equity
and statutes of general application that was in force in England on the specified date. These three
types of English law are all together commonly referred to as the “received law”.
Section 2 (2) of the JALO is significant to the present the legal system of Tanzania, because
in addition to written laws (i.e. local statutes), it permits the application of English law in situations
where it is necessary to do so. The provision is particularly important to banking in Tanzania
because our banking law and practice is based on English common law. Many of the important
principles that are relied upon in deciding banking cases are laid down in English cases.
(b) The Conditions for Application of Received Law

• It is only where there is no local statute or other law on a given point that courts in
Tanzania would refer to the substance of the common law, the doctrines of equity
and statutes of general application, which were in force in England on the 22nd July
1920. A proviso ( an additional clause limiting the extent of the main clause or section
in a statute) to section 2(2) of the JALO, states that:
 • “The said common law, doctrines of equity and statues of general application shall be
in force in Tanganyika only so far as the circumstances of Tanganyika and its
inhabitants permit, and subject to such qualification as the local circumstances may
render necessary.”
• The application of English law where necessary, is subject to such modifications, as
the circumstances of the country and its people require.

It is the task of our courts to determine what those modifications, if any should be in any particular
case in order to determine what should be the law of the country. The words “subject to such
qualification as the local circumstances may render necessary” in section 2(2) of the JALO, in
essence, enjoins our courts to use the processes of legal reasoning to modify the common law as
developed by courts in England to suit local conditions. (See the doctrine of precedent as explained
hereunder).
(c) The Common Law
Under English law, the meaning of “common law” varies according to the context in which it is
used. Originally, common law under the English legal system meant non-local as opposed to local
custom i.e. law applicable generally to the whole country and not just in a particular locality. In
England, the phrase is still used in this sense occasionally. As against legislation or statute,
common law signifies that part of the law, which had been created by custom of the people and
the decisions of the courts or judicial precedent. As opposed to equity, it means rules and principles
of law other than those evolved in the Court of Chancery or simply the law that is not equity. This
is the most frequent meaning of the phrase. (See 1. 4. 3 below).
Common law, therefore, refers to rules that originated in customs and practices of the people in
England and later on accorded judicial recognition in the common law courts in England.
(d) Doctrines of equity
Equity generally refers to the ideas of fairness, natural justice and humanity. Doctrines of equity
connote the body of rules, which were developed in the English Court of Chancery so as to remedy
the inadequacies or harshness of the common law rules. (For details see 1. 4. 3 below).
(e) Statutes of General Application
The expression “Statutes of General Application” refers to English statutes, which applied generally
to the whole of England and was not limited to any special locality. These statutes anteceded the
establishment of the local legislature, which came into existence on the reception date i.e. the
22nd July 1920, when the Tanganyika Order-in-Council came into force.
A statute was of general application in England and can only be applied in Tanzania after a court
has decided that it was or is a statute of general application in England and that it could apply in
the country as a statute of general application. For example in Re an Application by Jiwa [1967],
the English Trustee Act, 1893 was declared to apply in Tanzania as a statute of general application.
In that case, an application was made for approval of the variation of a trust of land, which consisted
in the transfer of the property to the beneficiaries instead of its sale as directed by the trust deed.
The variation was justified on the ground that a sale would not be in the best interest of the
beneficiaries since it was not likely to fetch a satisfactory price and the properties as they stood
were more valuable to the beneficiaries. A variation was granted on the basis of the provisions of
that Act after declaring it to be applicable in Tanzania as a statute of general application.
Only a few English statutes have been held to apply in Tanzania as statutes of general application.
But neither of them has any particular relevance to the business of banking. Among the few that
have been declared to apply as statutes of general application includes the Fire Prevention
(Metropolis) Act 1774, the Life Assurance Act 1774 and the Marine Insurance Act 1906, all of which
apply to insurance industry.
(f) Other reception clauses
Apart from Article 17(2) of the Tanganyika Order- in- Council of 1920 and later section 2 (2) of the
JALO, providing for the application of, among others, the common law, a special reception clause
of particular relevance to banking was found under section 2(1) of the Land (Law of Property and
Conveyancing) Ordinance 1923, Cap. 114. This section provided that:
The law relating to real and personal property, mortgagor and mortgagee, landlord and tenant and
trusts and trustees in force in England on the 1st January1922 shall apply to real and personal
property, mortgagor and mortgagee, landlord and tenant and trusts and trustees in the Territory in
the like manner it applied to real and personal property, mortgagor and mortgagee, landlord and
tenant and trusts and trustees in England and the English law and practice of land conveyancing
in force in England on the day aforesaid shall be in force in the Territory” i.e. in Tanganyika
The Land (Law of Property and Conveyancing) Ordinance 1923, has been repealed by the Land
Act, 1999. All matters mentioned under section 2(1) of the repealed Ordinance are now governed
by the Land Act, 1999. However where necessary and if circumstances permit, regard could still
be made to the common law pertaining to these matters using the general reception clause.
1.3.6 Case Law and Precedents
(a) Case law
Case law can be defined as law established by from judicial decisions in earlier cases (sometimes
referred to as judge made law). In principle, the role of the courts is to interpret and apply the laws
passed by Parliament. However, in the course of their interpretation of the law, judges enjoy a lot
of freedom to the extent that they may modify and make laws to suit the local conditions. This they
can do by using the techniques of statutory interpretation or methods of explaining an inconvenient
decision, or distinguishing it or limiting it to its own facts (i.e. legal reasoning). Case law often
provides the details, which statutes may usually not have.
Case law is based on the rule that lower courts follow previous decisions of a higher court when
deciding cases of similar nature to that decided by the higher court. Basic to this rule is the concept
of ratio decidendi. The term ratio decidendi can be defined as the principle or principles of laws
applied by the court to the facts of the case to reach its decision. It means the ground or reason
for the decision of the court. A ratio decidendi consists of three things:

• A statement of the material (relevant) facts of the case. These can be used for
comparative purposes in later cases.
• An account of the way in which the decision was reached, e.g. the cases and the
statutes that were referred to as authority, their analysis and application to the relevant
facts. In other words this covers the process of legal reasoning that was employed by
the judge.
• The decision of the judge to resolve the case.

The ratio decidendi of a case, particularly the legal reasoning behind the judge’s decision is what
can later on be used as the basis on which to make a later decision. Statements that are not central
to the decision, such as a chance remark by the judge, or a commentary based on facts the
existence of which have not been determined is known as an obiter dictum (obiter dicta for plural)
and it is not a binding statement. A decision made through an error of law or in ignorance of an
earlier binding decision is said to be per incuriam and is not binding on a later court.
(b) The Doctrine of Precedent
The system of basing decisions on previous cases is technically called judicial precedent or the
doctrine of precedent. A previous decision that serves as an authority for deciding a later case is
known as a precedent. Precedents are divided into two types. Binding precedent, that is decisions
having binding authority and persuasive precedents, are those, which are only of persuasive
authority.
Binding precedents in the context of Tanzania, are decisions of the Court of Appeal and of the
High Court. The High Court of Tanzania and Courts subordinate to it are bound to follow decisions
of the Court of Appeal, which have not been overruled by a later case of the Court of Appeal or by
legislation. Courts below the High Court are also bound to follow previous decisions of the High
Court. As a matter of judicial policy, the Court of Appeal of Tanzania would also regard a previous
decision of its own as binding, but may depart from it when it appears right to do so. (Dodhia v.
National Grindlays Bank LTD and another [1970].
Persuasive precedents are decisions of foreign courts which follow the common law system and
hence similar to our own system of law. The decision of a foreign court would especially be
persuasive where it was dealing with the interpretation of a statute that is similar to a local statute.
A persuasive precedent may also arise from statements of law made by a judge when giving
judgement which are not relevant to the issue before the court (i.e. obiter dicta) but which must be
treated with respect in later cases.

Learner Activity 3
Look for any case in the Tanzania Law Reports that is relevant to
banking (preferably a decision of the Court of Appeal). Read the
summary of the decision and part of the judge’s decision. Try to see
whether or not the judge has relied on any of the cases referred to in
the judgement in making his own decision. If the mentioned reports
are not available to you, look at the Times or read any report that has
relevance to banking.

1.4 Classification of Law

1.4.1 Public law and Private law

(a) Public law
Public law Public law concerns matters relating to society as a whole, particularly the activities of
governmental bodies i.e. the legislature, the departments of central government and the very large
number of bodies and agencies stemming from these departments, courts and tribunals, local
government and the police. It is therefore concerned with the state in its political or sovereign
capacity and regulates relations between the state or governmental agencies, and the citizen on
the one hand and between different governmental agencies on the other.
The main branches of public law are Constitutional Law Administrative Law, and Criminal Law.
Constitutional law deals with the exercise of power in the state. It covers such matters as the
parliament, the executive or central government, the judiciary and the division of powers between
these three main organs of the state in the governance of the country and the general principles
of law guiding each organ in performing its functions. Administrative law deals with the rules
concerning legal control of administrative action or exercise of governmental functions and powers
by administrative agencies of the government. Because of the great power which governments
wield, the law has traditionally imposed on government agencies special duties of procedural
fairness which normally do not apply to dealings between private citizens. Criminal law (and
criminal procedure) is essentially concerned with criminal matters, such as the prosecution and
punishment of wrongdoers.
Both constitutional law and administrative law are of little relevance to banking but criminal law has
some indirect relevance.
(b) Private law
Private law deals with the rights and duties existing between one individual and another in their
private capacities. We may therefore define private law as the law regulating the relation between
private persons and organisations or associations. Examples of private law include the law of
contract, which regulates agreements between individuals or between organisations e.g. banks
and their customers; agency, where one person acts on behalf of another person e.g. a bank
collecting cheques for its customers; bailment e.g. a bank keeping safe custody of valuable items
belonging to customers; property law generally and land law governing ownership of land and
regulating mortgages of land among many other things; and the law of torts, which determines
when compensation is to be paid to a person whose legal rights have been infringed by
another e.g. where a bank makes a misrepresentation when answering a status inquiry concerning
a customer’s financial position and stability.
Under private law, the state is neither the subject of right nor the object of duty. However, the
machinery of the state is involved in settling disputes between individuals. For example, if X
defames Y (the act is a tort), it is Y who sues X. The Republic is not a party to the proceedings.
Similarly if a borrower fails to repay a loan taken from a bank, only the bank can take steps to
enforce the remedy that is available to it in a court of law.
1.4.2 Civil Law and Criminal Law
(a) Civil law
The term “civil law” is used in several different senses, but chiefly to mean the law that deals with
different civil wrongs, as opposed to criminal law, which is exclusively concerned with crimes. A
civil wrong is a breach of a private duty, which may arise from an agreement between individuals
or which is imposed by a rule of law as in the law of torts. Reference to the “rule of law’ here means
a principle derived either from judicial pronouncements by judges when deciding cases or from an
Act of Parliament. Civil law therefore is concerned with protecting and enforcing legal rights and
duties between individuals and organisations, usually by ordering the payment of compensation
for damage suffered when they have been infringed or broken.
(b) Criminal law
A crime is a breach of public duty, a legal wrong, which affects society in general. The state uses
criminal law to regulate the conduct of its citizens and to protect society. The state the distinction
between criminal and civil law does not depend on the nature of any wrongful conduct. A wrongful
act may constitute both a crime and a civil wrong. For instance if Juma stabs Asha in the back,
Juma commits both a crime and a civil wrong called trespass to the person (a tort). The stabbing
of Asha is a crime because it is the public duty of every person not to injure or violate the body of
another. Asha may however be more inclined to seek a personal redress for the injury suffered as
a result of the wrongful act committed against her. A civil suit will enable her to get compensation
from Juma. Likewise, a person who forges a cheque and obtains payment thereof may be faced
with a charge of forgery (criminal) or be sued in conversion i.e. to assume unlawful proprietary
rights over personal property of another (civil).
Apart from the functional distinction that has been elaborated above, criminal law and civil law
differ in the following respects:

• In criminal law, criminal proceedings are called prosecutions. Criminal proceedings

are always instituted by and in the name of the Republic, which is always represented
by a public prosecutor. Taking the above example, the criminal case against Juma will
be entitled Republic (R) versus Juma, in which case Juma the defendant or the
accused person while Asha the victim is the complainant and may appear before the
court as a mere witness for the prosecution. If the crime is proved, the accused is
convicted.
 • Should Asha file a civil suit against Juma, in the above example, the case will be
named Asha versus Juma. In civil proceedings, the person bringing the suit (plaintiff)
is said to sue (i.e. bring an action against) the defendant and if successful, the plaintiff
is said to obtain judgment against the defendant. In other civil causes, such as
matrimonial causes, the aggrieved party petitions for divorce, nullity or judicial
separation against a respondent and is called a petitioner. If successful the petitioner
is granted a decree.
• Criminal proceedings once commenced cannot be dropped or discontinued without
the leave of the court, unless the Director of Public Prosecution or the Attorney General
stops further proceedings by entering a nolle prosequi (i.e. an application for an order
of court to stop criminal proceedings). In a civil case, the action or civil proceedings
are brought by a private citizen himself (e.g. Asha v. Juma), who is free in most cases
to discontinue the proceedings either with or without a settlement with the other side.
• The standard of proof in a criminal case is “beyond reasonable doubt” which means
that the prosecution must establish on all available evidence that the accused
committed the offence and not any other person. In a civil case the standard of proof
is “on a balance of probabilities,” or “on the preponderance of probabilities”. And it is
upon the plaintiff (the one who alleges) to prove his or her case.
• Criminal law is basically statutory i.e. it is founded in Acts of Parliament, whereas a
substantial amount of civil law is derived from cases decided by courts i.e. case law or
the common law.

1.4.3 Common Law and Equity

Common law refers to rules that originated in customs and practices of the people in England and
later on accorded judicial recognition in the common law courts in England. The main characteristic
of common law is the process of reasoning by analogy or inductive reasoning or reasoning from
case to case (i.e. applying precedents). Through this process, different customs were sifted and
unified into one system of law common to all people of England, hence the term “common law.”
Equity on the other hand, refers to the body of rules that were developed by the Court of Chancery
to remedy the inadequacies of the common law. Until 1875, there were two main and quite distinct
court systems in England, namely, the common law courts and the Court of Chancery, which
applied respectively the rules of common law and equity. Due to certain procedural shortcomings
as well as the harshness of common law rules, it became the practice of persons who could not
obtain relief in common law courts to bring their cases to the King, for his royal intervention. Initially,
those petitions came before the King in Council (Curia Regis). The King’s Council had none of the
limitations imposed on the common law courts, hence was able to deal with those complaints, as
it thought fit.
In the 14th century petitions began to be addressed to the Lord Chancellor rather than to the King’s
Council, and by the 15th century the Chancellor had started to hear petitions alone and issue
decrees in his own name. It was at this point that the Court of Chancery came into existence
separating from the King’s Council and becoming an independent tribunal. The early Chancellors
were ecclesiastical men (clerics) versed in cannon law and hence laid emphasis on the conscience
of the parties. And sought to order what was as a matter of conscience fair and just between them,
even when to do so would be to depart slightly from the strict observance of the law. The body of
rules applied by the Court of Chancery was called equity, which literally means fair conduct,
founded on principles of natural justice.
The rules of equity were generally designed to achieve two main aims:
 • To restrain a person who had a right at common law from exercising it contrary to
good conscience and fairness, and
• To grant a person who had a right that was inadequately protected under the common
law a better and fairer method of enforcing it.

The most important examples of equitable remedies established by the Chancery are the
contractual remedies of specific performance and injunction. The Court of Chancery though,
always retained the power to refuse an equitable remedy if the plaintiff had himself acted
improperly. Even today, equitable remedies unlike common law rules are granted at the discretion
of the court.
In 1875, the two systems of courts were unified and both types of rule began to be administered
in all the ordinary courts of law. The classification of common law and equity, therefore, is used to
distinguish those rules in the English legal system that would before 1875, have been administered
by common law courts, from the body of rules that would before 1875 have been administered by
the Court of Chancery. Common law and equity are now administered concurrently in English
courts (and also in countries following the common law system or Commonwealth countries) but
the distinction between them still persists.
1.4.4 Substantive Law and Procedural Law
(a) Substantive law
Substantive laws consist of rules and principles, which define the powers, rights and privileges,
which a person possesses and the correspondence of duties, liabilities and disabilities to which a
person is subject to under the law. The laws of contract, agency, partnership law, criminal law
(Penal code) and the law of torts are examples of substantive law.
(b) Procedural law
Procedural law (also termed adjective law) in broad terms prescribes the procedure for obtaining
or enforcing the rights and duties that are defined by substantive law. Enforcement of public duty
that is defined by the criminal law is governed by criminal procedure and civil procedure governs
enforcement of private rights. We thus have, the Criminal Procedure Act, 1985and the Civil
Procedure Code 1966, No. 49 of 1966, respectively.
1.4.5 International Law and Municipal Law
(a) International law
International law is the law that operates outside states and governs the legal relations between
states and international organisations. International law is divided into conflict of laws (or private
international law) and public international law (usually just termed international law).

• Conflict of laws

Conflict of laws deals with cases within particular legal systems, in which foreign elements obtrude
raising questions as to the application of foreign law or the role of foreign courts. Its objectives are
threefold:

1. To prescribe the conditions under which the court is competent to entertain the
case.
2. To determine for each class of case the particular system of law which must be
used to ascertain the rights of the parties.
3. To specify the circumstances in which a foreign judgment can be recognised as
decisive of the question in dispute and whether it can be enforced by action in the
courts of the country before which the matter is brought.
For example, if a Tanzanian makes a contract with a Rwandan in the Democratic Republic of
Congo (DRC), to sell goods situated in Uganda, the court in Tanzania, before which a suit is
brought to enforce the contract will have to decide which law governs the validity of the claim. And
if the matter was first adjudicated upon, say in the DRC, and a suit is brought to enforce the
judgment of the DRC court in Tanzania, the Tanzanian court before which the suit is brought will
have to apply conflict of law rules to decide the circumstances under which the foreign judgment
could be recognised and how the creditor’s claim can be enforced in Tanzania.
(a) Public international law
Public international law consists of rules and principles of general application dealing with the
conduct of nations and operations of international organisations and also with the relations
between themselves as well as with some of their relations with persons, whether natural or
juridical. International customs (the customs and practices that nations utilise to regulate their
relations) and treaties (i.e. formal agreements between two or more states) are generally
considered to be the most important sources of international law
(b) Municipal Law
Municipal law refers to law within a country. It is the law, which pertains solely to the inhabitants of
a state, and has legal force only within that states’ territorial borders and not beyond. The principal
sources of municipal rules of law as already seen are national constitutions, statutes, executive
regulations and the decisions of municipal courts. The important difference between municipal law
and international law is that the principal subjects of international law are states and not individuals.

Summary

In this Unit we have looked at sources of law and their classifications. We have seen that the
constitution is the supreme law of the country and all other laws derive their validity from it. We
have also noted that legislation enacted by Parliament constitute the major source of law on many
subjects. We have also learnt that delegated legislation is made under the authority of a principal
statute enacted by Parliament. We have learnt that it is by virtue of the reception clause under the
JALO that the common law, doctrines of equity, statutes of general application continues to be part
of our law today. We have also learnt that through the JALO the legislature has legislated the use
by the courts of the common law doctrine of judicial precedent and hence case law constitute
another important source of law. The other sources of law that we have looked at are customary
law and Islamic law. We have further seen that laws operating within a state fall under different
classifications depending on their source, function or the way they operate vis-à-vis the state and
private individuals.
Learning Outcome
Having read this Unit it is expected that you are now able to:

• Understand the various sources of law.

• Distinguish statutes from delegated legislation.
• Know the meaning of the reception clause and appreciate why it is considered to be a
source of law.
• Appreciate the importance of case law and judicial precedent to banking business and
practice in Tanzania today.
• Appreciate different classifications of law.