TABLE OF CONTENTS

Subject page

0) Law of Evidence…………………………………………………………...1-94
1) Legal Skills questions and answers…………………………………………..95
2) Environmental Law questions and answers.............................................…...117
3) Family law questions and answers……………………………………..……133
4) Business Association questions and answers………………………….…….156
5) Alternative Dispute Resolution questions and answers……………………..188
6) Article on Choice of Law in Arbitration..................................................…...224
7) Jurisprudence and Legal Theory questions and answers…………………….245
8) Civil Procedure questions and answers………………………………..…….279
9) Sale of Goods and Agency questions and answers…………………………..341
10) Labour Law questions and answers………………………………………...362
11) Private International Law questions and answer…………………………...425
12) International Humanitarian Law questions and answers…………………...460
LAW OF EVIDENCE QUESTIONS AND ANSWERS

QUESTION ONE.

a) All confessions are admissions but the reverse is not the case. Discuss.

b) Juma is charged with murder. During the investigations, he makes the following
statement to the police officer, “it is true that the knife believed to have been used in
killing the deceased is mine and it has all along been in my possessions.” Consider
the admissibility or otherwise of that statement during the trial.

TABLE OF CONTENTS.

Part A of the question.

1.0. INTRODUCTION
1.1 The meaning of admission.
1.2 The meaning of confession.
2.0. MAIN BODY.
2.1. Discussion on whether all confessions are admissions and the reverse is not
the case.
3.0 Conclusion.

Part B of the question.

.
1.0. Summary of Facts.
2.0. Framing of Issues.
 Whether the statement is confession or otherwise.
 Whether the statement can be admissible as evidence.
3.0. REMARKS.

Part A of the question.

1.0 INTRODUCTION.

Admissions as defined under the Evidence Act 1 is a statement oral or documentary,

which suggest any inference as to a fact in issue or relevant fact, and which is made by
any of the persons, and in the circumstances here in after mentioned. The definition
suggest that an admission should be a statement which is oral or documentary and that it
must be made by a person who has interest in the suit but it should normally be made
against the very person making it.

1
Section 19 of the Evidence Act, [Cap 6 R.E 2002]
The term also has been defined as statements, oral, written, or inferred from conduct,
made by or on behalf of a party to a suit, and admissible in evidence, if relevant, as
against his interest.2

According to H. C. Black3 the term admission is confessions, concessions or voluntary

acknowledgements made by a party of the existence of certain facts. More accurately
regarded they are, statements where a party, or some one identified with him in legal
interest, of the existence of the facts which is relevant to the cause of his adversary 4

The same author proceeded by saying that admission is a voluntary acknowledgement

made by a party of the existence of the truth of certain facts which are inconsistent with
his claims in an action. An admission is not limited to words, but may also include the
demeanour, conduct and acts of the person charged with a crime. By this definition it
therefore follows that while the Evidence Act confines its meaning on the statements oral
or written this definition is in explicit as it does not confine itself on the words.

For Y V Chandrachund and V R Manohar5; the term admission is defined as a statement

of facts which waives or dispenses with the production of evidence by conceding that the
fact asserted by the opponent is truth. Admissions are admitted because the evidence of
the party to a proceeding, in respect to the matter in dispute, whether by acts, speech, or
writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to
the issue6.

It follows therefore that while the term is defined by different authors it is evident that
their meanings or views are different from the meaning given in the Evidence Act but for
the purpose of the understanding admission in Tanzania the meaning as enshrined in the
Evidence Act is the appropriate one.

The term confession is also defined by the Evidence Act under section 3 (1) to mean:

words or conduct or combination of both words and conduct, from which, whether taken
alone or in conjunction with the other facts proved, an inference may reasonably be
drawn that the person who said the words or did the act or acts constituting the conduct
has committed, or a statement which admits in terms either an offence or substantially
that the person making the statement has committed an offence, or a statement containing
an admission of all the ingredients of the offence with which its maker is charged, or a
statement containing affirmative declarations in which incriminating facts are admitted
from which, when taken alone or in conjunction with other facts proved, an inference

2
P. Kivuyo and Sameja F, Evidence Simplified page 37
3
H. C. Black,(1991), Blacks Law Dictionary, page 31
4
On the footing of the same trend the meaning of admission includes also an act or declaration by the
accused person from which either alone or with other evidence his guilt can be inferred.
5
Y V Chandrachund and Manohar , V R (1997), Ratanlal and Dhirajlal The law of Evidence, page 77
6
In the case of THIRU JOHN V RETURNING OFFICER, AIR 1977 SC 1724 admission was said to be
the best evidence against the party making it and, though not conclusive, shifts the onus to the maker on
principle that what a party himself admits to be true may be reasonably presumed to be true so that until
the presumption is rebutted the facts admitted must be taken to be true.
may be reasonably be drawn that the person making the statement has committed an
offence.

In the case of R V KIFUNGU NSURUPIA7 it was stated that the term confession
connotes an unequivocal admission of having committed an act which in law amounts to
a crime. In the case of R V BAMPAMIYKI8 the court stated that for the statement to
amount to a confession it must contain all the ingredients of the crime with which the
accused person is charged so that the accused could be properly convicted on his own
plea.

Stephens defines the term confession, as an admission made by a person charged with a
crime stating on suggesting the inference that he committed that crime. 9 According to
Phipson a confession is a type of admission in relation to crime, i.e. an admission from
which inference may be drawn that the accused committed the crime charged.

In the Blacks Law Dictionary10 confession is a voluntary statement made by a person

charged with the commission of a crime or misdemeanour, communicated to another
person, where he acknowledges himself to be guilty of the offence charged, and he
discloses the circumstances of the act or the share and participation which he had in it.

MAIN BODY

The general rule is that both in civil and criminal cases any relevant statement made by a
party is evidence against himself. Such statements are under the evidence law are termed
as admissions and confessions respectively. It our concern in the given question to show
as to whether it is true that the all confessions are admissions but the reverse is not true.

Every confession must be an admission, but every admission in a criminal case need not
be a confession. A statement may be irrelevant as a confession but it may be relevant as
an admission. A statement is not admissible as a confession, but the same statement may
yet for other purposes be admissible as an admission as against the person who made it.
Hence it is well known as all confessions are admissions but all admissions are not
confessions.
Further discussion will be observed on the differences between the two aspects
(admission and confession).

The meaning of the word confession as given by Phipson clearly suggest that all
confessions are admissions as he define the term confession as an admission made by a
person charged with a crime.

7
[1941] 8 EACA 89
8
[1957] EA 473
9
See M.N. Howard, et al (1990) Phipson on Evidence, 14th Edition p 674. The same is found in
Chandrachund and Manohar op cit p 93 where the author added that the term confession is a statement
which either admits in terms of the offence or at any rate substantially all the facts which constitutes the
offence.
10
Black, op cit p 205
In most cases, confession is in itself an admission because the accused person admits the
case in whole. Confessions by themselves contain the admissions with which the person
charged admits.

A distinction here is that; an admission of a fact from which guilty is directly deducible
or which within and of itself impose guilt, which is a confession, and admission of a
particular act or acts or circumstances which may or may not involve guilty and which is
dependent for such result upon other facts or circumstances to be established, which is
not a confession but merely an admission.11

In addition, a confession always goes against the person making it while an admission
may be used in favour of a person making it. Thus it can be said that generally the rule
governing confession is rigid and has no exceptions. When a person makes a statement
which qualifies to be a confession under the Evidence Act such will be used against the
maker and never in his favour and at this instance it is an admission.

However the general rule in regard to admission is that admissions are to be used against
the maker. The rule though has some exception which allows admissions made in the
favour of the maker admissible as admission12. From this it can be deducted that all
confessions are admissions in the sense that they are made against the interest of the
maker but not all admissions are confessions due to the fact that there some admissions
which are made in favour of the interest of the maker.

Another aspect to be reflected here is that, where a conviction can be based on statement
alone, it is a confession. This was reiterated by Sir Clement de Lestang, VP in the case of
ANYANGU AND OTHERS V. R13;
“A statement is not a confession unless it is sufficient by it self to justify the
conviction of the person making it of the offence with which he is tried.”

Hence a confession if deliberately and voluntarily made may be accepted as conclusive in

matters confessed; this was similarly stated in the case of QUEEN-EXPRESS V.
SANGAPPA14 whereas in admission some supplementary evidence is needed to
authorise conviction. Thus an admission is not a conclusive proof of the matters admitted,
but may operate as estoppel.

Moreover no statement that contains self exculpatory matter can amount to confession, if
the exculpatory statement is of some fact which if true would negative offence to be
confessed. Moreover a confession must either admit in terms the offence, or at any rate
substantial all the facts which constitute the offence. An admission of a gravely
incriminating fact even a conclusively incriminating fact is not of it self a confession.

11
State V. Porter (1897) 32 Or. 135
12
Section 23 of the Evidence Act
13
[1968] EA 239 at 240
14
(1889) Unrep. Cr C 463, see also EMPEROR V. NARAYEN (1907) 9 Bom LR 789, 801
A confession is a statement made by an accused person which is sought to be proved
against him in a criminal proceeding to establish the commission of an offence by him
while an admission usually relate to a civil transaction yet they may be used in criminal
proceedings, this indicate that admissions covers both criminal and civil maters but
confession is only to be found in criminal matters. Due to the veracity that the
confessions are found only in criminal proceedings and admissions are found in both
criminal and civil matters it follows as the day follows night that all confessions will fall
in the category of admissions found in criminal matters. 15

However confession is not taken as admission due to the fact that though confession is
taken against the person making it in other instances the confession of one or two or more
accused persons jointly tried for the same offence can be taken into consideration against
co-accused as stipulated under section 33 of the Evidence Act. While admission by one
of several defendant in a suit is no evidence against another defendant 16. This shows that
not in all instances confessions are admissions basing on the premise that admissions can
only be used against the maker which is contrary to the rules governing confessions
which allows confession to be applied to the co accused.

Phipson explains that admissions by party have always constituted an exception to the
hearsay rule, one kind of admission being confession by an accused person, that is, an
admission by him about the facts charged against him.

The case of R.V. MKARETH17 illustrates the situation supporting that not all
admissions are confession. It was stated:
‘A statement of a confession must be the one which in the absence of explanation or
qualification and any particular circumstances, clearly points to the guilty of an accused
person’.

When a person admits allegations, he is actually admitting the commission of such crime
and such statements by themselves are highly considered. The contrary is in admissions
where as it is provided under section 26 of The Evidence Act that admissions are not
conclusive proof to a matter in controversy.

Part B of the question.

DISCUSSION OF THE ISSUES.

From the question, Juma is charged with murder. During investigation, he states to the
police officer that,
“It is true that the knife believed to have been used in killing deceased is mine and
it has all along been in my possession.”

15
G.V. Reddy (2004) Sujatha Law Series; The Indian Evidence Act, 1872. p. 88
16
Chandrachund and Manohar op cit p. 96
17
(1971) HCD 74
The issue to be discussed is whether the statement given by Juma is confession or
otherwise.

A confession is acknowledgement of fault, wrong doing made at any time by a person

charged with a crime, stating or suggesting the inference that he committed that crime.18
For a statement to amount into a confession it should have the following qualifications:-

First, it must be freely and voluntarily made by the accused person.19 From the given
scenario we have been told that, Juma made a statement to a police officer and there is no
further information as to whether Juma was compelled in any way in making the
statement. This can be taken as a presumption that the confession was voluntarily made.
In this requirement it is upon the prosecution to prove affirmatively to the satisfaction of
the court that it was voluntarily made and not obtained by any improper means. 20

Another requirement is that, for a statement to be a confession it should be made to

authorised person. The Evidence Act stipulates persons who can receive confession as; a
police officer21as provided under section 27, a Magistrate and Justice of peace as
provided under section 28 of the Evidence Act. These are the only persons who can
receive confession under the Evidence Act. According to the scenario, Juma made
confession to the police officer. This fact suffices the respective requirement of
confession.

The other requirement is that, the statement must be made by the accused person. From
the question Juma who is charged of the offence is the one who made the statement.

However it should be noted that, for a confession to be admissible a person must either
admit in terms the offence or at any rate substantially all facts which constitute the
offence, as it was stated in the case of R V. BAMPAMIYKI22 that;
“A statement should be regarded as a confession only when it contains
ingredients of the crime with which the accused person is charged, so that the
accused person could be properly convicted on his own plea.”

An admission of a gravely incriminating fact is not itself a confession. In SWAMI V.

KING EMPEROR23 the court held that;
“No statement that contains self exculpatory matter can amount to a confession;
if the exculpatory statement is of some fact, which if true would negative the
offence alleged to be confessed. A confession must admit in terms all facts which
constitute the offence.

18
Reddy, op cit. p. 87
19
Section 27 of the Evidence Act
20
This was stated in the cases of R V WARRINGHON [1981] 2 DEN 447 and R V THOMPSON [1893]
2 QB 12 that;
“It is the duty of the prosecution to prove in case of doubt the prisoners statement was free and
voluntary and that they did not discharge themselves of the obligation.”
21
Section 3 (1) defines a police officer as “any members of the police of or above the rank of corporal.”
22
[1957] EA 473
23
[1939] AIR 47
Further the Privy Council24 stated inter alia that;
“An admission of a gravely incriminating fact, even a conclusively incriminating
fact is not itself a confession. For example an admission that the accused is the
owner of and was in recent possession of the knife or revolver which caused death
with no explanation of any other man’s possession.”

On the same footing in the case of PALVINDAR KAUR V. STATE OF PUNJAB25

whereby the accused was charged with murder and destruction of evidence for having
committing murder of her husband by administering potassium cyanide poison and for
causing destruction of her husband dead body. During investigation and trial, she stated;

“My husband fond of hunting as well as photography. Some material for washing
photos was purchased and kept in an almirah. My husband developed abdominal
trouble. He sent for medicine. I placed that medicine in the same almirah. By
mistake my husband took the liquid which was meant for washing the photos. If
fell down and died. Due to fear I put his body in a trunk and threw it into a well.”

The Supreme Court held that; the statement of the accused did not amount to confession.

Therefore it can be said that if a statement given by an accused person can lead into
conviction of the person without adducing other evidence to corroborate it such is a
confession. This was clearly stipulated in the case of R V.MKAREH (supra) that
“We think that the test is whether statement is such that in the absence of any
explanation or qualification and in particular circumstances, it points clearly to
the guilty of the maker. thus statement ‘I killed him’ unaccompanied by any
exculpatory statements and uttered in relation to a person who has died of a
natural cause or to missing funds as the case may be are in our view indicative of
guilty and therefore a confession.”

However, this distinction is not taken in some other jurisdictions. In England, all
incriminating admissions by an accused person count as confession. 26For example, in
England, there is no difference in this respect between “yes, I killed him” and “yes, I was
near the scene of the crime”. In England thus, statements by Juma amounts to confession.

Distinctly, in India, only that portion of information which relates distinctly to the fact
discovered can be proved. Thus a statement “I stabbed X with my knife. I threw my knife
in the well of my house” in India it will be taken differently. The first part of the
statement that is “I stabbed X with my knife” is inadmissible as a confession, while the
second part, that “I threw my knife in the well of my house” is admissible as confession.
Therefore the statement of the accused “I threw my knife in the well of my house” is only
admissible because it leads to the discovery of the knife. The other part of the statement
is then inadmissible.

24
Reddy, loc cit.
25
AIR 1953 SC 107
26
COMMISSIONERS OF CUSTOMS AND EXCISE V. HARZ [1967] 1AC 670; Per Lord Reid.
REMARKS:
From the given scenario the statement by Juma does not amount to a confession and thus
not admissible as evidence due to the fact that the statement does not show that the
accused is admitting to have committed the offence and thus not admissible. This is
backed up by the reasons given above that for the confession to be admissible it should be
an unequivocal admission. The same had been repeated by Sir Clement de Lestang, VP in
the case of ANYANGU AND OTHERS V. R (supra)
“a statement is not a confession unless it is sufficient by it self to justify the
conviction of the person making it of the offence with which he is tried.”

This statement drives us to the conclusion that the mere fact that the accused stated to
have possessed the knife which ultimately killed the deceased and was in the possession
of the said knife is not the sufficient ground to incriminate the accused.

The statement in the scenario by the accused can be taken as the evidence for the case of
admissibility where it is corroborated, as an admission. The statement that does not
amount to a confession is only evidence against the maker of it, thus an admission.

ALTERNATIVE ANSWER

TABLE OF CONTENTS
PART (a)
1.0: INTRODUCTION
1.1: Meaning of the terms Confession and Admission

2.0: MAIN BODY

2.1: Distinction between Confession and Admission
2.2: Similarities between Confession and Admission
2.3: How all Confession and Admission

3.0: CONCLUSION

PART (b)

1.0: Summary of material facts

1.1: Framing of issues
1.2: Discussion of issues
1.3: Conclusion
PART (a)

1.0: INTRODUCTION
The general rule in both civil and criminal cases is that any relevant statement made by a
party is evidence against himself27. In civil cases, for instance, statements made out of
court by a party to the proceedings or by a person connected with him by any of the
relationships are admissible in evidence against but not usually in favour of such a party.
It is from this remark where we draw our need for the general understanding of the
concept of admissions and confessions.

1.1: Understanding of the term confession and admission.

The term confession has been defined by various jurists28 and even some judicial
decisions have taken their consideration in defining this term. Ratanlal R 29. defines this
term to mean;
“An admission made at any time by a person charged with a crime, stating
or suggesting the inference that he committed that crime.”

Stephen30 defines this term confession to mean;

“An admission made by a person charged with a crime stating or
suggesting the inference that he committed that crime”

From the above two meanings of the term confession it can be drawn an observation that
the term confession has its basis on criminal matters other than in civil matters and that it
can be stating or even drawing an inference to the commission of a crime.

Under The Evidence Act31 (hereinafter to be referred to as Cap 6), the term confession is
defined under section 3(1). From the provisions of this subsection it can be seen that
confession can be words or conduct, or combination of the two which when treated alone
or in conjunction with other facts proved, can draw an inference that through such words
or such conduct then the particular person committed an offence. It also include a
statement which admits in terms either an offence or substantially that the person making
the statement has committed an offence.

As per Cap 6, confession also mean a statement containing an admission of all the
ingredients of the offence with which its maker is charged or that is a statement
containing affirmative declarations in which incriminating facts are admitted from which,
when taken alone or in conjunction with the other facts proved, an inference may
reasonably be drawn that the person making the statement has committed an offence.

27
R.V.ERDHEIM[1896]2Q.B.260
28
For instance in Heydon, J.D(1991) Evidence: Cases and Materials, 3rd Edn, at p.173 says that;
“Generally speaking, a confession is a statement by the accused in which he admits
committind an offence, or admits some fact that goes to show he committed an offence”
29
Ratanlal, R& D.K.Thakore(2004) The Law of Evidence, 21st Edn, p.164
30
As cited in Phipson, S.L(1982)Phipson on Evidence, p.674
31
Cap 6 of The Revised Laws of Tanzania 2002
Judicial decisions in that respect have also tried to either adopt such position of the law or
sometime giving much more explanatory meanings of the term confession. In
SHANKAR V STATE OF T.N32 it was stated that a confession means;
“A form of admission consisting in express words by the accused person
of the truth of the guilty fact charged or some essential part of it. A
statement that contains a self exculpatory matter cannot amount to a
confession. The confession should be a voluntary one, that is to say, not
caused by inducement, threat or promise. Whether a confession is
voluntary or not is essentially a question of fact.”

In the case of MATHEI FIDOLINE HAULE V R33, the Court of Appeal of Tanzania
stated that;
“A confession within the context of criminal law is one which admits in
terms the offence charged. It is one which admits all the essential elements
or ingredients of the offence. An admission of one or only some of the
ingredients of the offence is not sufficient” 34

Therefore from the above definitions it can be said that there are certain ingredients
which must be satisfied for words or conduct to amount to a confession. Such ingredients
include that it should be freely and voluntary, made to a police officer or magistrates or
justice of peace35. It is also important to note that the confession also must be taken as a
whole or in part.

The law provides that such statement must be free from threats, promise or other
prejudice held out by a police officer to whom it was made or by any member of the
police force or by any other person in authority. However the test is objective in the fact
that not every inducement has the effect of making confession involuntary.

This position of the law was observed in the case of JOSEPHAT SOMISHA MAZIKU
V R36 where the High Court of Tanzania stated that;
“…while it is trite law, that the condition precedent for the admissibility of
the confession, is its voluntariness, the said confession is not automatically
inadmissible, simply because threats, or promise; it is inadmissible only if
the inducement or threat, was of such a nature as likely an untrue
admission of guilt…”

Classification of confessions can be grouped into two: that is judicial and extra-judicial
confessions. It is judicial when made before a magistrate in the course of legal

32
[1994] 4 SCC 478
33
[1992] TLR 148 at 151
34
See also the case of R V BAMPAMIYKI[1957]E.A 473 where it was stated that;
“A statement should be regarded as a confession only when it contains ingredients of the
crime with which the accused person is charged, so that the accused person could be
properly convicted on his own plea”
35
This is as per sections 27 and 28 of Cap 6 of the Revised Laws of Tanzania 2002.
36
[1992]TLR 227 at 230
proceeding and it is extra judicial when the accused person makes a statement confessing
the crime he is being charged of elsewhere than in a court of law.

On the other hand the term Admission37 is defined under section 19 of Cap 6 as to mean;
“A statement oral or documentary, which suggests any inference as to a
fact in issue or relevant fact and which is made by any of the persons and
in the circumstances hereinafter mentioned”

Admission has to contain the following ingredients that it has to be a statement oral or
written, which suggests the inference in relation to a fact in issue or relevant fact and
may be made by any of the following persons; a party to a proceeding or suit, an agent
authorized by an agent or a party to a suit, persons having proprietary or pecuniary
interests in the subject matter at issue, persons who are predecessors on interests or title,
persons whose positions must be proved as against party to suit and persons expressly
referred to by a party to suit38. It has also to have been made in the circumstances
prescribed in Cap 639.

In the case of R V MCGREGOR40 it was stated that the weight of admission increases
with the knowledge and deliberation of the speaker, or solemnity of the occasion on
which it was made.

2.0: MAIN BODY

This question requires among other things as to the discussion in relation to the fact that
‘all confessions are admissions but the reverse is not the case’. The basis of this
statement draw us to the perception that the question needs the clear distinction between
the two concepts and at the same time show where the two seem to merge to each other.
In that sense, we are going to discuss the said statement in that basis.

2.1: Distinction between the two terms.

Phipson and Elliot41 say that there is a distinction between an admission of a fact from
which guilt is directly deducible or which within and of itself imports guilt, which is a
confession, and admission of a particular act or acts or circumstances which may or may
not involve guilt and which is dependent for such result upon other facts or circumstances
to be established, which is not a confession but merely and admission. This was a
position in the case of STATE V PORTER42.

37
It is also defined by Heydon, J.D, Op.cit at p.375, to mean;
“Admissions are statements adverse to the case of a party to legal proceedings”
38
This is provided under Section 20, 21 and 22 of Cap 6 of The Evidence Act (Revised Edition 2002)
39
See such Circumstances under Section 19 of Cap 6. Phipson says on this that;
“…the weight of an admission depends on the circumstances under which was made,
these circumstances may always be proved to impeach its credibility”
See also the case of RAKESH WADHAWAN V JAGDAMBHA INDUSTRIAL CORPN, AIR 2002 SC
2004 where it was stated that the value of an admission dependas upon the circumstances in which it is
made and to whom it is made.
40
[1968] 1 Q.B.371
41
Elliot, D.W(ed)(1980) Phipson and Elliot Manual of the Law of Evidence, 11th edn, at p.184
42
[1897] 32 Or, 135
Other differences are the difference as to the nature of the proceedings. That is,
Admissions are generally made in both criminal and civil cases while Confessions are
made only with respect to the criminal cases. In criminal cases admissions are applied in
those matters which have no criminal intent. Confession is part of admissions and
therefore an admission of guilty. This view was made in the case of R V RILEY43 where
the court stated that a plea of guilty amounts to an admission of the offence charged, that
is, the acts charged and the application of the law thereto, but not the truth of the
depositions.

Confession always goes against the person against the person making it while admission
may in certain circumstances be proved on behalf of the person making it. Confession
can be taken as a whole or part the offence charged while admission has to be taken as a
whole not part. This, in as far as admissions are concerned, was held in the case of
MOHAMMAD KOYA V MUTHUBOYA44 where it was stated that;
“It is settled law that an admission of any party has to be read in its
entirety and no statement out of context can constitute admission of any
fact.”45

Confession must be in affirmative in both ingredients of the offence which is actus reus
and mens rea while admission may lack one of this ingredients which may lead to
different interpretation. It can be illustrated as follows;
Where A upon separating B and C who were fighting in a train
compartment, A pushed B who dropped in the joint which separated the
compartment and died instantly. Before the, court A admits that he caused
the death of B in due process of separating him from C. That admission
cannot amount to a confession of an offence of murder since there is no
proof as to the mens rea.

In MATHEI FIDOLINE HAULE V Rsupra the appellant assaulted his mother who he
believed to be a witch. In convicting the appellant the trial Judge relied on two pieces of
evidence. The first was a statement the appellant made to his village chairperson that he
had assaulted his mother. The second was the cautioned statement alleged to have been
made by the appellant before a police officer who at the time of the trial was reported
dead. The trial Judge treated both pieces of evidence as confession.

The Court of Appeal of Tanzania held that the mere admission by the appellant that he
had assaulted his mother could not really be taken to amount to a confession to the
offence of murder with all its essential ingredients. This is to say that statement fell short
of being admissible as a confession due to lack of fulfilling the other ingredient of an
offence.

43
18 COX 285
44
[1979] 1 SC 664
45
See also the case of SUNIL CHANDRA V HEMENDRA, AIR 1985 cal 233; and the case of ZARINA
AKBARALI SHARIFF AND ANOTHER V NASHIR PIROSESHA SETHNA AND OTHERS[1963
]EA 239
2.2: Similarities between the two concepts.
Both admissions and confessions have some features which appear in the two. These
include the fact that both can be made as judicial or extra judicial, can be made by words
or conduct or combination of both, as a general rule the burden of proof in both lies on
prosecution with respect to criminal matters46 and that in both there is a conditional
precedent that they should be made voluntarily.

2.3: Whether all Confessions are admissions and that the reverse is not true.
From the above discussion of the distinction and similarities of admissions and
confessions this paper reaches a stage of showing as to how all confessions are
admissions and that the reverse is not the case.

In the case of QUEEN-EMPRESS V BABU LAL47 it was held that the statement that a
confession is an admission made at any time by a person charged with a crime, stating or
suggesting the inference that he committed the crime, is a genus. That is, admission is the
species and confession is the sub-species. This implies that a confession is a statement
made by an accused admitting his guilt48

Sarkar49 says that confession might be inadmissible, which yet for other purposes would
be admissible as an admission. In other words all admissions are not confessions but all
confessions are admissions. And that only voluntary and direct acknowledgement of guilt
is a confession. But when a confession falls short of actual admission of guilt, and is not
taken down according to law, it may nevertheless be used as evidence against the person
who made it, as an admission50

The fact that admissions are applied in both criminal and civil proceedings justifies the
truth that admissions are wider than confessions since the latter are only in criminal
proceedings and therefore falling within admissions in that sense. This can be drawn from
the provisions of Cap 6 which defines the two terms where admissions are not confined
to criminal or civil matters only while confessions are confined in criminal matters 51.

Also the fact that statements which does not amount to confessions can be treated as
admissions draw the observation that confessions are within admissions. This is on the
reason that admissions are mainly concerned with fact in issue or any relevant fact.
Hence a statement which does not amount to a confession but which is relevant to the fact

46
This was stated in the Case of JONAS KIZE V R [1992] TLR 213 where the High Court observed that
the general rule in criminal prosecution that the onus of proving the charge against the accused beyond
reasonable doubt lies on the prosecution, is part of our law, and forgetting or ignoring it is unforgivable,
and is a peril not worth taking. The court observed further that failure to rely on prosecution evidence is to
read upside down the authorities, and if it is by design, then it is strange and unjudicial behaviour.
47
[1884]6 ALL 509
48
AGHNOO V STATE OF U.P, AIR 1966 SC 40
49
SARKAR, M.C(1993) Sarkar’s Law of Evidence, 14th edn, p.376
50
See the case of R V NILMADHAB, 15 C 595 FB where Petheram CJ observed that as follows;
“If the contents of the document did not amount to a confession, the document would be
relevant as an admission”
51
See Section 3(1) for Confessions and Section 19 for Admissions.
in issue or any other relevant fact can be admitted as admission is the light of Section 19
of Cap 6.

3.0: CONCLUSION
From the above discussion, and to that extent, we are of the views that it is true that all
confessions are admissions and that the reverse is not true. This statement however has to
be treated inline with such distinction that fall within the two concepts in the law of
evidence

PART (b)

1.0: Summary of the material facts

From the stated scenario the facts of the case can be summarized as follows that Juma is
charged with murder and that during investigations he made a statement to a police
officer that;
“It is true that the knife believed to have been used in killing the deceased
is mine and it has all along been in my possession”
It is required to consider the admissibility or otherwise of that statement during the trial.

1.1: Framing of the issues

Since the first part of this question has dealt to a great extent with the concept of
confession and that of admission, it follows therefore that we go direct to the framing of
the issues with respect to this part of the question. The issues here are whether the
statement is an admission or confession and whether the said statement is admissible.

1.2: Discussion of the issue

For a statement to amount to a confession it has to satisfy various tests. These include
that the statement must be made by the accused person, freely and voluntarily and before
a police officer, magistrate and justice of peace52. And it has to be noted that a confession
must relate to the offence in question. If the purported admission makes out no offence,
the provision relating to confession would not come into play. This was the position in
the case of GANESH TRADERS V DISTRICT COLLECTOR, KARIMNAGAR53

It is important that a confession has to be addressed to some person. This is the position
in Cap 6 where, as we pointed out earlier, it is provided under the provisions of Sections
27 and 28. In the case of PANDRA KHADIA V STATE OF ORISSA54 it was pointed
out that a confessional statement must be addressed to some person and that, therefore,
the accused going round the village and shouting that he had killed his wife did not
amount to confession. In the question at hand Juma’s statement is said to have been made
before the police officer. However the issue still remain there as to whether that is
sufficient to amount to a confession.

52
See Sections 27 and 28 of Cap 6
53
2002 Cri LJ 1108(AP)
54
1992 Cr LJ 762(Ori)
Lord Atkin in PAKALA NARAIN SWAMI V EMPEROR55 stated that;
“A confession must either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence. An admission of a
gravely incriminating fact, even a conclusively incriminating fact, is
not in itself a confession56, for example, an admission that the accused is
the owner of and was in recent possession of the knife or revolver which
caused death with no explanation of any other man’s
possession”.(Emphasis is ours)

The position in Tanzania is well illustrated in the case of MATHEI FIDOLINE

HAULE V Rsupra where the Court of Appeal of Tanzania held that the mere admission
by the appellant that he had assaulted his mother leading to her death could not really be
taken to amount to a confession to the offence of murder with all its essential ingredients.

The fact that Juma is the owner of the said knife and all such facts that are connected with
that knife does not by itself establish the guiltiness of Juma as to the alleged offence of
murder since mens rea, and that is malice aforethought has to be proved so as to amount
to a confession. Though the statement of Juma can draw a suspicion that Juma might be
the killer of the deceased, yet that statement does not talk anything on the other element
of the offence.

In the case of ALLY FUNDI V R57 the High Court of Tanzania stated that;
“…a mere opportunity to commit an offence cannot be the basis for
convicting an accused person. If the law were otherwise, no one in this
country would have been safe…suspicion, however grave it may be,
cannot be a substitute for proof in a court of justice”

Those observations draw us to a conclusion that the said statement is not a confession.
The issue is whether now the statement is an admission. This seems to be undisputable in
the light of section 19 of Cap 6. The said section defines the term admission and it
provides that a statement whether oral or written which suggests any inference as to a fact
in issue or relevant fact made by any person mentioned in the Act under the
circumstances provided therein amounts to an admission. Our interest here is on the
phrases fact in issue and relevant fact.

Fact in issue is defined under section 3(1) of Cap 6 to mean any fact from which, either
by itself or in connection with other fact, the existence, non-existence, nature or extent of
any right, liability or disability, asserted or denied in any suit or proceeding, necessarily
follows. In the question at hand the main issue is whether Juma murdered the deceased.
And on the other hand a fact is said to be relevant where it shows or constitute a motive

55
AIR 1939 PC 47
56
In OM PRAKASH V STATE OF UP, AIR 1960 SC 409 it was observed that a statement which might,
at most, be described as suggesting an inference that the accused committed the crime does not amount to
confession.
57
[1983] TLR 210
or preparation for any fact in issue58. It is clear that the statement as to the effect that
Juma is the owner of the knife that is believed to have been killed the deceased and that at
all material time he had in possession of it is essentially a relevant fact in as far as the fact
in issue is concerned. This is to say, that statement passes the test of being admission
within the meaning of section 19 of Cap 6.

The next issue is whether such statement is admissible. In the case of BISHEN DAS V
RAM LABHAYA59, an accused, a woman, was charged with murder of a deceased man.
Before the court she admitted that she killed the deceased but that was done in her
attempt to rescue herself from being raped by the deceased. The court held that the
statement did not amount to a confession of an offence of murder but yet it was
admissible as an admission of the fact.

This is to say that Juma’s statement is admissible as admission against himself though is
not a conclusive evidence60 against him in the offence for which he is charged with rather
it has to be corroborated with other evidence to prove the guiltiness of Juma to the charge
of murder. It is a statement which draws an inference as to the commission of an act of
killing but there should be other evidence to prove mental element necessary in proving
the offence of murder, that is, malice aforethought.

On the other hand, if for instance, the knife which killed the deceased would have not yet
been discovered by the police and that the statement uttered by Juma was one which lead
to the discovery of that knife as one which killed the deceased, then the position of the
law in as far as the admissibility of the said statement would have been that under section
31 of Cap 6. The purpose of the said section is to render admissions admissible material
facts or material object or objects discovered due to the information provided by an
accused while under police custody61.

Juma’s statement, in our views, does not fall within the four corners of section 31 since
the knife which Juma is making statement to it was already discovered by the police and
the investigation believes that the said knife was used to kill the deceased. Hence the
statement is not leading to a discovery of a knife rather it is only relevant as to the owner
of it. This implies that admissibility of the said statement is basically with respect to the
provisions under section 19 of Cap 6.

1.3: Conclusion
It follows from the above discussion that Juma’s statement is admissible as evidence
against him and that it will be treated as an admission relevant to the fact in issue which
in actual fact as per question, is murder.

58
See section 10(1) of Cap 6
59
[1915] PR No.106
60
See section 26 of Cap 6
61
See also the case of NANYALIKA V R [1971] HCD 314
QUESTION TWO.

“Use of the phrase ‘without prejudice’ is inefficacious if the statement is not

made as part of the genuine attempt to negotiate a settlement.”
In the light if the above statement, discuss the scope of application and the
effect of section 25 of the Evidence Act, Cap.6 R.E 2002.

1.0.INTRODUCTION
-MEANING OF “WITHOUT PRUJUDICE”

2.0.CONCEPT OF “WITHOUT PREJUDICE”

2.1.THE POLICY BEHIND THE RULE
2.2.THE JUDICIAL BASIS OF THE RULE.

3.0.THE SCOPE OF APPLICATION AND EFFECT OF SECTION 25 OF THE

EVIDENCE ACT, CAP 6 R.E 2002.

4.0.EXCEPTIONS

5.0.CRITICISM

6.0.CONCLUSION.

BIBLIOGRAPHY

1.0 NTRODUCTION
One of the major principles recognized by the law in the conduct of litigations is
that of disclosure of evidence. Parties therefore should disclose, to each other and
for the purposes of the proceedings, any and all evidence, relevant to the issues in
those proceedings, which is or has been in their possession, custody and power.

Communications with an opponent may be made “WITHOUT

PREJUDICE.”(BILA KUATHIRI).

1.1 MEANING OF “WITHOUT PREJUDICE”.

 The word “Without prejudice” in a letter or document means that an admission
made in the letter or document is not binding.62.

In the book, Phipson on evidence63 the phrase “Without prejudice” is explained to

mean.

“Written or Oral Communications which are made for the purpose of a genuine
attempt to compromise a dispute between the parties may generally not be
admitted in evidence”.

The expression “without prejudice” means without prejudice to the writer of the
letter if the terms he proposes are not accepted. But if the terms proposed in the
letter are accepted a completed contract is established and the letter, although
written without prejudice operates to alter the old state of things and to established a
new one.64

In other words, “Without prejudice” simply means “I make you an offer if you do
not accept it, this letter is not to be against me”.

2.0 CONCEPT OF “WITHOUT PREJUDICE

The concept “without prejudice” is the rule, which may be seen in two categories:

2.1 POLICY BEHIND THE RULE

In law, the policy behind the “without prejudice rule” is that, parties should be
encouraged as far as possible to settle their dispute without resort to litigation and
should not be discouraged by the knowledge that anything that is said in the course
of such negotiations (this also includes a failure to reply to an offer as an actual
reply) may be used to their prejudice in the course of the proceedings.

The rule aim at encouraging parties fully and frankly to put their cards on the table.

The public policy justification in truth essentially rests with the desirability of preventing

statements or offers made in the course of negotiations for settlement being brought

before the court of trial as admissions on the question of liability.

According to section 23 of the Indian Evidence Act, which is in parimateria to

section 25 of TEA, in civil cases the admissions are to be made when relevant. If
admission of liability is made by a party upon an express condition that evidence of

62
Sir Major’s Manual (Unpublished Material).
63
Sweet and Maxwell, Phipson on Evidence 16th Ed
64
Ratanlal & Dhirajlal, the law of Evidence, 19the Ed (1998) P. 90.
 such admission should not be given, that, it was made for the purpose of buying
peace and settling disputes by compromise instead of legal proceedings or if an
admission is made under circumstances from which the court can infer that the
parties agreed together that evidence of it should not be given, such admission is not
relevant and is protected by this section.

In Highton Vs H,65 Mr. Romilly thus explains the reasons for the rule; “for if
parties were to be afterwards prejudiced by their efforts to compromise, it would be
impossible to attempt an amicable arrangement of difficulties”.

2.2 THE JUDICIAL BASIS OF THE RULE

The judicial basis of the rule is partly contract and partly public policy.

In part it depends upon an implied agreement by the parties to the effect that what is
said in settlement negotiations will not subsequently be relied upon in court.

The first letter passing between the parties marked “without prejudice” will be protected

by without prejudice privilege even though unsolicited and thus there cannot be said

to be any implied agreement between the parties.

The court in Instande v. Denny Bros Printings66 granted injunctions preventing

the use of without prejudice material in subsequent patent proceedings involving the
same or related parties on the implied contract formulations. And it was held that,
“the without prejudice” communications were governed by an implied agreements
that there would not be used in the current or any subsequent litigation between the
same or related parties.

In the three party situation where without prejudice letters written, for example, between

A and B may be inadmissible in proceedings between A and C because it has nothing

to do with contract.

Without prejudice is seen as a form of privilege and usually treated as such.

However, it does not have the same attributes as the law of privilege. Unlike other
privileges, without prejudice privilege can only normally be waived with the

65
15 Bear 278
66
(2000) F.S.R. 869
 consent of both parties to the correspondence. This was clearly stated in the case of
Rush Tompkins. V. GLC.67
Furthermore, “Without prejudice” documents are only protected in circumstances
where a public policy justification can be provided, namely where the issues is
whether admissions were made as it was explained in Muller v. Linsley &
Mortimer68. Without prejudice privilege is generally a rule of admissibility either
based on a contractual or implied contractual rights or on public policy.

3.0 THE SCOPE OF APPLICATION AND EFFECT OF S. 25 OF TEA CAP 6 R.

E 2002

The section gives effect to the Maxim “interest re publicae sit finis litium” that is
for the interest of the state that there should be an end of litigation. 69

In other words, it is a basic aim of the law to settle disputes amicably without the
necessity of a court case and to further this end the parties during preliminary
negotiations, will often make admission and reveal facts which they would not
agree to in court. If these confidences were later freely admissible in evidence the
result would be that it would soon become impossible to secure amicable pre-trial
settlements of civil disputes.

Section 25 is subject to three main issues, which are;

 Are there people in a dispute?

 Are they negotiating?
 Are there terms offered?

These three issues are there to determine the admissibility under S. 25.

The application of S. 25 of TEA is limited to those cases where there is a dispute or

negotiations and in which terms have been offered to settles the disputes. In
Madhavrav v Gulabbhai70, it was stated that the rule, which excludes documents
marked “without prejudice”, has no application, unless same person is in dispute or
negotiation with another and terms are offered for the settlement of the dispute or
negotiation.

Thus, where letters were written without reference to any disputes they were held to
be not privileged though they were marked “without prejudice” as per Dentrey Re,
Exp. Holt71 where it was stated that “The fact that the document is headed “without
prejudice” does not conclusively or automatically render it privileged for an
admission in evidence in any subsequent proceedings, and if a claim for such

67
(1989) I.A.C 1280 HL
68
(1996) I.P.N.L. 74
69
Rotanlan 8 & Dhirajlal, The law of Evidence 19th Ed (1998) P. 90
70
(1898) 23 Bom 177, 180
71
(1893) 2 QB 116, 119 -20
 privilege of the document is challenged the court will look at the document to
determine its nature”.

However, all documents which form part of negotiations between the parties are
prima-facie privileged from admission in evidence if they are marked “without
prejudice” even if the document in question merely initiates the negotiations and
even if the documents does not itself contain an offer. 72 Thus there are two
circumstances which will give rise to application of the section, namely:
 An express condition that evidence of the admission is not to be given
 Circumstance from which the court can infer that the parties agreed together
that evidence of the admission was not to be given.
Generally, the correspondence will be treated as within the rule where the following
are considered, namely; that communication attract “without prejudice” privilege
and the court admit such communications.
Correspondence will only be protected by without prejudice privilege if it is written
for the purpose of a genuine attempt to compromise a dispute between the parties. It
is not a pre condition that the correspondence bears the heading without prejudice.
If it is clear from the surrounding circumstances that the parties were seeking to
compromise the action, evidence of the content of those negotiations will as a
general rule not admissible, as it was so held in the case of Rush and Tompkins v
Greater London Council73

4.0 EXCEPTION
The phrase “Without Prejudice” is subject to several exceptions.
In Unilever V Procter and Gamble74 Robert Warker L.J set out the principal
circumstances which “without prejudice” communications could be admitted in
evidence, these include;
Firstly is when the issue is whether without prejudice communications have resulted
in a concluded compromise agreement, those communications are admissible as it
was so held in the case of Tomlin v Standard Telephones75.

Another exception has been shown in the case of Wood V Cox76 that an agreement
apparently concluded between the parties during the negotiations should be set
aside on the ground of misrepresentation, fraud or undue influence.

Meanwhile, in a circumstance where there is no concluded compromise but there is

clear statement made by one part to negotiations and on which the other part is
intended to act and does in fact act, may be admissible as giving rise to an estopped,
a good example is a case of HodgKinson and Corby V Wards Mobility
Services.77

72
Rotantal pg. 91
73
(1989) 1 W.L.R.1280 at 1299.
74
(2001) 1 W.L.R 1630 C.A
75
(1969) 1 W.L.R 1378 C.A
76
(1912) 4 D.L r 66
77
(1993) 2 All E.R 693. 697
In cases of impropriety, one part may be allowed to give evidence of what the other said

or wrote in without prejudice negotiations if the exclusion of the evidence would act

as a cloak for perjury, blackmail or other unambiguous impropriety.

It can also be applied as exception where there is no public policy justification for
exclusionary rule. This was shown in the case of Re D78.
Lastly evidence of negotiation may be given, in order to explain delay or apparent
acquiescence. The fact of without prejudice negotiation rather than in the normal
case their content may be relevant for example on an application to strike out for
want of prosecution on an issue of delay in amending a patent or any other claim
based on laches as it was in a case of Walker V Wilsher.79

In such circumstances it will be permissible not merely to refer to the existence of

without principle communications, but to put in evidence the material itself.
Another good example is a case of Family Housing Association V. Michael Hyde
& Partner 80 where it was stated that;
“If one party states that the existence of without prejudice negotiations were the
reason for the delay, the other party must be entitled to produce them to show
that they do no justify the delay”

5.0 CRITICISM

The “Without prejudice” phrases has been criticized by Wigmore who criticized the
contract theory for say that “the true reason for excluding an offer of compromise is
that, it does not ordinarily proceed from and imply that the adversary’s claim is well
founded, but rather a belief that the further prosecution of that claim whether well
founded or not, would in any event cause such annoyance as is preferably avoided
by payment of the sum offered.

Another criticism on the phrase is that, it is in opposition to the general requirement

of the law of evidence which requires all that relevant facts should be tendered in
court in order to prove the case. In the contrary, the phrase “without prejudice”
requires that all facts revealed during negotiations should not be used as evidence in
court of law.

6.0 CONCLUSION
We are of the view to conclude that the purpose of section 25 of The Tanzania Evidence

Act Cap 6, R.E 2002 is to give effect to the maxim “interest rei publicae ut sit finis

78
(1889) 23 ch. D. 335,338
79
(1993) 1 WLR 54, C.A
 litim” that is for the interest of the state that there should be an end of litigation. In

other words, it is the basic aim of the law to settle disputes amicably, without the

necessity of a court case.

QUESTION THREE

“To be admissible, a confession must be free and voluntary. If it proceeds from

remorse and desire to make reparation for the crime, it is admissible. If it is
flows from hope or fear, exerted by a person in authority, it is inadmissible. The
prosecution must discharge the Onus which lies upon it, of proving that the
extra- judicial statement in its entirety was voluntary”

With case law and appropriate provisions of the Evidence Act, discuss the
veracity of the above statement.

INTRODUCTION
The term confession has been defined by statute, case law, and jurist. The statutory
definition of the term confession is defined by the Evidence Act 81 (hereinafter to be
referred to as the Act) to mean
(a) words or conduct, or a combination of both words and conduct, from which,
whether taken alone or in conjunction with the other facts proved, an inference
may reasonably be drawn that the person who said the words or did the act or
acts constituting the conduct has committed an offence or;

(b) a statement which admits in terms either an offence the person making the
statement has committed an offence; or

(c) a statement containing an admission of all the ingredients of the offence with
which its maker is charged; or

(d) a statement containing affirmative declarations in which incriminating facts

are admitted from which, when taken alone or in conjunction with other facts
proved, an inference may reasonably be drawn that the person making the
statement has committed an offence.

The court has in several occasions defined the term confession. The case of Swami V
King Emperor82 in defining confession the Court held

81
Section 3
82
(1930) 1 ALL E. R 398
 “No statement that contains self exculpatory matter can amount to a confession;
if the exculpatory statement is of some facts, which true would negative the
offence alleged to be confessed, a confession must admit in terms all the fact
which constitute the offence.
The court of Appeal of East Africa in the case of R V Kifungu Nsurupia83 defined the
term as an equivocal admission of having committed an act amounts to a crime.

According to Sakar84
“Confession is an admission made at any time by a person charged with a crime
stating or suggesting the inference that he committed a crime”.
Stephen85 defines the term confession to mean;
“An admission made by a person charged with a crime stating or suggesting the
inference that he committed that crime”

MAINBODY
This part
The question demand the veracity of the statement “To be admissible, a confession must
be free and voluntary. If it proceeds from remorse and desire to make reparation for the
crime, it is admissible. If it is flows from hope or fear, exerted by a person in authority, it
is inadmissible. The prosecution must discharge the Onus which lies upon it, of proving
that the extra- judicial statement in its entirety was voluntary” which is treated as follows;

Classification of Confession
Confession can be classified into judicial and extra-judicial. Judicial confession are those
which are made before a magistrate or in court in due course of legal proceedings; and it
is essential that they be made of the free will of the party and with full knowledge of the
nature and consequences. Sarkar86explaining this type of confession says
“this kind is preliminary examinations taken in writing by the magistrate
pursuance to statute; and the plea of guilty to an indictment, made in open court.”
Having seen this we earnestly shift our attention to the next category.

Extra-judicial confession is made when the accused person makes a statement confessing
the crime he is being charged of elsewhere than in court of law; this term embracing not
only express confession of crime, but all those admissions and acts of the accused from
which guilt may be proved like other fact. This type of confession is made to persons in
authority such as police officer and justice of peace as will be expounded in the course of
our treatment of the topic in question.

Admission of Confession
For confession to be admissible the following elements must be established.
a) It must be freely and voluntarily made without threat, promise, or other prejudice.
b) It must be made by an accused person himself.

83
[1941]8 E.A.C.A 89
84
Sakar on Evidence Vol 1,P.423
85
As cited in Phipson, S.L(1982)Phipson on Evidence, p.674
86
Sarkar on Evidence p.430
 c) It must be made to a person in authority.

Burden of proof
The onus of proving the voluntariness of Confession lies upon the prosecution. The
provision of section 27(2) of the Act provides:-
“The onus of proving that any confession made by an accused person was
voluntarily made by him shall lie on the prosecution.”

This position was stated by the court in the case of Josephat Somisha Maziku v R87
where the learned judge stated that:-
i) While it is trite law that the condition precedent for the admissibility of a
confession is its voluntariness, a confession is not automatically inadmissible
simply because it resulted from threats or promise, it is inadmissible only if the
inducement or threat was of such a nature as was likely to cause an untrue
admission of guilt;

ii) where you have threats and a confession far apart without a causal
connection, and no chance of such threats inducing confession, such confession
should be taken to be free of inducement, voluntary and admissible;

iii) it is a principle of evidence that where a confession is, by reason of threat,

involuntarily made, and is therefore inadmissible, a subsequent voluntary
confession by the same maker is admissible, if the effect of the original torture, or
threat, has before such subsequent confession, been dissipated and no longer the
motive force behind such subsequent confession.

It can further be deciphered that the court of Appeal of East Africa had an occasion to
comment on voluntary ness of confession in the case of Njuguna Kimani & Others V
R88 where the accused was charged with the murder of their employer. One of the issues
was whether the confession was voluntary as to be admissible. The court held that:-
i) It is the duty of every judge or magistrate to pay close attention to confession
obtained from an accused person particularly when the person has been in
custody for along time, and;

ii) Onus is on the prosecution to show voluntaries of confession and that if third
degree measures were applied they had ceased to operate in the mind of the
accused at the time he was making the confession.

iii) It is inadvisable, if not improper, for the police officer who is conducting the
investigation of the case, to charge and record the cautioned statement of the
suspect.

Confession made by inducement or threat

Section 29 of the Act provide that:-

87
T.L.R 1992] 227
88
[1954] 21EACA 316
 “No confession which is tendered in evidence shall be rejected on
the ground that a promise or threat has been held out to, the person
confessing unless the court is of the opinion that the inducement was
made in such circumstances and was of such a nature as was likely to
cause an untrue admission of guilt to: be made

It thus follows from the above provision that confession caused by threat, inducement or
promise shall not be rendered inadmissible unless the court forms an opinion that the
inducement was made in circumstance that resulted in an untrue admission of guilty. The
term inducement includes statement made under threat, promise or unwillingly. The test
as whether the accused was placed in such a position or situation that he would rather
give an untrue statement than true statement is as provided by the said provision of the
Act.

The effect of s.29 is to admit all confessions, which are made under inducement, unless
the court from the circumstances in which the confession was made led to untrue
confession. The court had in Thadei Mlomo & Another V. R89 commended where it
was of the view that “under s. 29 an involuntary confession is admissible if the court
believes it to be true, however, the section cannot be invoked where actual torture was
applied, it is apparent from this case that where a confession is obtained by only threat
and the confession is true, it is admissible.

In Oraym Mkangule & another V. R90 the high court found that although the appellant
confessions were ordinarily inadmissible. The fact that there was unusual state of affairs
concerning the second appellant was relevant and admissible. It tended to prove a
conduct from which the second appellants’ guilt could be inferred. In such a context it
does not matter if illegal means are used in getting at the fact. In this case the accused
person upon their arrest they were beaten and this led to their confessions. The second
appellant after making the confession went further he led the way to his house and
indicated a spot under his door saying he kept the money there. The soil was removed but
no money was found. The accused persons were subsequently charged.

Sarkar91 provides that, it is difficult to lay down any hard and fast rule as to what
constitutes inducement, the question is one for discretion of the judge, and his decision
will vary in each particular case. What language is sufficient to constitute an inducement,
whether by threat or promise has been the subject of many decisions, some not altogether
satisfactory.

Therefore, from the above argument it is clear that section 29 and 30 of the Act should be
read together. The effect of these sections is to leave on the court the duty of deciding
whether confession sought to be tendered in evidence by the prosecution should or should
not be admissible. An accused is therefore free to repudiate or retract a confession sought

89
(1995) TLR 187
90
(1984)TLR 79
91
Sarkar, M.C (1999) Sarkar on Evidence 15th edn p.451
to be tendered against him and when he does so the burden rests on the prosecution was
freely and voluntarily made by the accused person.

QUESTION NO. 4:

“Article 15 of the Convention Against Torture obligates states, party to it, to

ensure that the statements established to have been made as a result of torture and
other forms of inhuman treatment shall not be invoked as evidence in any
proceedings against their makers.”

To what extent is the evidence Act, Cap. 6 R.E 2002 and other Rules of Evidence in
force in Tanzania, if any, consistent with the above provision?

1.0 Introduction
The word torture originates from Latin word ‘torquere’ meaning ‘to twist’. Also
according to concise Oxford Dictionary, torture refers to the action or practice of
inflicting severe pain as a punishment or a forcible means of persuasion92. In law it refers
to as infliction of severe bodily pain either to confess to a crime or to give more evidence
in a judicial proceedings. Examination by torture often called the question has been used
as a judicial method to extort evidence from unwilling witnesses93.
On the other hand, confession as been defined by different authors and in case laws but in
law is a statement made by a person who has committed a crime in which he or she
acknowledges his or her guilty. If made in Court it is judicial, if made anywhere else it is
extra judicial. An entirely voluntary that is trustworthy confession is admissible in
evidence but if procured through force, inducements, threats, promises or through hope of
escape or favour it is not trustworthy and is not admissible94.
For the Confession to be admissible the following elements must be established: -
a. It must be made by an accused person.
b. It must be true in the sense that it will sustain a conviction.
c. It must be freely made to a Police Officer of or above the rank of Corporal or
any authorized officer.

2.0 Analysis of the Evidence Act and other rules of evidence in force in Tanzania
to determine how the same are consistent with article 15 of the Convention.
For the sake of this question, we are going to explore from the Evidence Act, the
Magistrate Court Rules of evidence and the Zanzibar Evidence Decree so as to determine
the extent through which the mentioned legislations has reiterate the wording of Article
15 of the Convention.
The admissibility of an alleged confession is a question for the Court, what weight it is
entitled to, is a question for the jury (assessors). But the general rule on admissibility of
confession in evidence in Tanzania Mainland context is such that, if prosecution can
92
Concise Oxford Dictionary 10th Ed
93
Encarta Encyclopedia Standard of 2004
94
Ibid
proves that it was made voluntary the same is to be admitted95. It does not matter whether
the confession was made before the arrest or after, but as long as it was made to an
authorized officer. But if procured through torture or any other inhuman treatment, it is
inadmissible.
The latter phrase here in above has been reiterated in the Evidence Act (herein after to be
referred as the Act) S 27 (1) ready together with sub section (3). The Sections provides
that: -
(1) A confession voluntary made to a Police Officer by a person accused of an
offence may be proved as against that person
While sub section 3 provides that:-
(2) A confession shall be held to be involuntary if the Court believes that it was
induced by any threat, promise or other prejudice… by any other person in
authority

Although as a general rule confession obtained as a result of inducement or threat should

not be admissible under the Act (S 27), any confession made by the accused can be
invalidated on the grounds of inducement, threat or promise. Conditions to be satisfied
for excluding confession includes the followings: -
a. The confession must appear to the Court to have been caused by any

inducement threat or promise.

b. Any such inducement, threat or promise must have reference to the charge
against the accused person.
c. Any such inducement, threat or promise must proceed from a person in authority.

d. Any such inducement, threat or promise must be sufficient in the opinion of

the Court to cause a reasonable belief in the mind of the accused that by
making it he would gain an advantage or avoid an evil of a temporal nature.

Section 29 of the Act introduces an entirely new principle regarding the admissibility of
confessions resulting from an inducement. Under the law operative else where in East
Africa and in England such confessions if the inducement is offered by a person in
authority are inadmissible. The test applied in determining whether the confession is
admissible being that of its voluntariness. However, this section makes no distinction
between confession made following an inducement by a person in authority and by a
person not in authority and adds a new test of admissibility. In addition to the test of
voluntariness, the test of whether or not the inducement has been likely to affect the truth
of the confession is introduced.

That section presents certain difficulties since the intention may well have been that the
later part of the section should render inadmissible confessions result from inducement
likely to cause untrue admission of guilty to be made, it does not specifically say so

95
S 27 of The Evidence Act of 1967
Hence vide S 29 of the Act, under specific situation allows confession caused by threat,
inducement or other inhuman treatment as the case may be not to be rendered
inadmissible unless the Court forms an opinion that the inducement was made in
circumstances that resulted in an untrue admission of guilty. The test is whether the
accused was placed in such a position or situation that he would rather give an untrue
statement than a true statement. Thus, case laws are of profound importance.

In KARUMA s/o KAMAU v. R 96 the Court of Appeal was of the view that,
“the mere fact that evidence was illegally obtained should not make it
inadmissible in that a Court always had discretion to disallows that
evidence”

Whereas in the case of THADEI MLOMO & ANOTHER v. R97 the Court was of the view
that:-
“Under S 29 of the Act, an involuntary confession is admissible if the
Court believes it to be true. However the section cannot be invoked where
due to actual torture applied on the accused, led to untrue confession”

In line with the above case holding is the case of JOSEPHAT SOMISHA MAZIKU v. R98 in
which the appellant was charged with stealing by public servant. On his arrest he
confessed to the ‘sungusungu’ (local guards) when they interrogated him to have stolen
the louver glasses. The High Court on appeal observed amongst other things the
following: -
i. While it is trite law that the condition precedent for admission of a confession
is its voluntaries, a confession is not automatically inadmissible simply
because it resulted from threat or promise, it is inadmissible only if the
inducement or threat was of such a nature as was likely to cause an untrue
admission of guilty.
ii. It is principle of evidence that where a confession is by reason of threat,
involuntary made and is therefore inadmissible, a subsequent voluntary
confession by the same maker is admissible, if the effect of the original torture
or threat, has before such subsequent confession been dissipated and no longer
the motive force behind such subsequent confession

From the above arguments, it is clear that S. 29 and S 30 of the Act should be read
together. The effect of these sections is to leave on the Court the duty of deciding
whether confession sought to be tendered in evidence by the prosecution should or should
not be admissible. An accused is therefore free to repudiate or retract a confession sought
to be tendered against him and when he does so the burden rests on the prosecution to
bring evidence to prove that the confession was freely and voluntarily made by the
accused person.99

96
[1955] 22 E.A.C.A 364
97
[1995] T.L.R 187
98
[1992] T.L.R 227
99
See also TUWAMOI v. Uganda [1967] E.A in which it was said that ,it will be dangerous to rely on a
confession which has been retracted or repudiated unless the court after considering the facts of the case,
Also in section 31 of the Act, confession leading to discoveries of necessary things on the
facts in issue even though obtained through torture is admissible. The intention of this
section is to admit material facts or objects discovered for concealment as a consequence
of statements made by the accused. In YORAM NKANGHULE AND ANOTHER V. R100 the
accused persons upon their arrest, they were beaten and this lead to their confessions. The
second appellant after making the confession went further, he lead the way to his house
and indicated a spot under his door saying he kept the money there. The soil was
removed but no money was found. The accused persons were subsequently charged. The
Court held that,
“although the appellants confessions were ordinarily inadmissible. The
fact that there was unusual state of affairs concerning second appellant
was relevant and admissible. It tendered to prove a conduct from which a
second appellants’ guilty could be inferred. In such a context it does not
matter if illegal means are used in getting at the fact.”
Not only the above sections but also Section 33 of the Act allows admissibility of
confession by co-accused even if obtained by inhuman treatment in so far it is the
truth and has fulfilled the conditions necessary for the said confession to exist. 101

Other Rules of evidence enforce in Tanzania are the Magistrate Court Rules of
Evidence102 applicable in Primary Courts and the Zanzibar Evidence Decree103. Section
13 of these rules provides a statement which is consistent with Article 15 of the
Convention.
Section 13 (1) (b) provide that: -
“No evidence may be given in a case against a person
accused of an offence where confession is caused by a threat,
or given in promise.”
Where as section 13 (2) provide that: -
“No evidence may be given in a case against a person accused of an
offence of any confession made when he is in custody unless the confession
was made directly to a magistrate or to a justice of the peace, who has
been assigned to a district court. Even if such confession is made to a
magistrate or such justice of the peace no evidence may be given of the
confession if it was caused by the threat or promise.” (the emphasis is
ours)
Also in subsection 3 of the same Act provide that: -
“Where two or more persons are being tried jointly for the same offence
or for different offences arising out of the same transaction and a
confession by one of the co-accused is caused by a threat the court may
take into consideration such confession as against such other person.

arrives to a conclusion that the confession is true. This was also reiterated in the case of EZEKIEL v. R
[1972] HCD 192
100
[1984] T.L.R 79
101
See the case of CHOA & ANOTHER v. R (1953) 22 E.A.C.A 364 for those conditions
102
Cap 11 R.E 2002
103
Cap 5 of 1917
Thus, with the wording of the reproduced sections from the evidence rules
applicable in Primary Courts which their context are the same with the
Zanzibar Evidence Decree applicable in Tanzania Island on admissibility of
confessions, we are of the view that, as whole, they are consistent with
Article 15 of the convention since they only speaks of inadmissibility of
confession obtained by threat or inducement but nothing is said on
confessions obtained by torture despite
been true as is the case in the Act.

3.0 Conclusion
In conclusion therefore, from the above discussion, it suffice to expound
that, although as a general rule as provided for under S. 27 of the Act that
confession obtained by torture is involuntary and ought not to be admitted as
evidence, but the wordings of Sections 29; 30; 31; and 33 ready together
with Section 142 of the Act allows confessions obtained through inhuman
treatment to be admissible in so far the court believes such confessions to be
true. And hence the principles regarding admissibility of confession in
Tanzania Mainland are inconsistent with the requirement of Article 15 of the
Convention since it obligates States party to it not to admit statements made
as a result of torture. This is according to the above cited sections of the Act
and the precedents developed by the Courts concerning that aspect except
Section 27 of the Act, Section 13 of the Magistrate Court Rules of evidence
applicable in Primary Courts and Section 80 of the Zanzibar Evidence
Decree which seems to be consistent with that Article in the Convention.

QUESTION NO 5
Using the provisions of the Evidence Act and Case Law, briefly discuss
the admissibility and weight of the evidence in the following scenarios.
a) On 25. 11.1980, Lelemama was arrested for killing his wife. During his
trial evidence was given by his neighbour, a police inspector that
immediately after the killing the accused, (Lelemama) told him, “I have
killed my wife, she was a bitch”.
b) Mesewi, a reputable business man is charged with Armed Robbery. One
day he was arrested, a police man told him, “It will be better for you to tell
the truth as it will save the shame of a search warrant in your house,”
whereupon Mesewi makes confession and directs the police officers to his
hideout where the goods stolen and robbed on divers dates are found.
c) In the course of trial, the accused states that the statement produced by the
prosecution on his previous confession, is substantially different from the
one he actually made.
d) Nundu, Nunda and Pindu are jointly charged with the offence of murder.
The prosecution tenders in evidence the statement made by Nundu before a
police officer to the effect that shortly before the offence was committed, he
changed his mind and persuaded his co accused to spare the deceased but the
two could not listen and in fact they killed the deceased as Nundu was busy
raising an alarm. On his part, Nunda informs the court that while in Police
custody, one Superintendent of police told him, “You are not obliged to say
anything unless you wish to do so, but what you say may be put in writing
and be given in evidence.” However, hardily had the superintendent left
than the police constable asked him to make confession or else… He
therefore invites the court to disregard the confession made at the police
station.

OUTLINE

1.0 INTRODUCTION

2.0 ANSWERS TO RESPECTIVE SCENARIOS

a) The statement given by Lelemama under paragraph (a) is closely connected to

the issue or concept of confession.

b) Statement by Mesewi after an inducement held out by the police man.

c) Accused denial of the truthfulness of the statement sought to be tendered in

court by the prosecution as previous confession by him.

d) Under this scenario Nundu makes a statement to the effect that he and his co-
accused where once parties to the common design before he withdrew himself
and that the remaining two actually killed the deceased. And Nunda want the
court to disregard the confession he made to the police officer.

BIBLIOGRAPHY.

1.0 INTRODUCTION

Basically these four scenarios are about the concept of confession. The first scenario is
about admissibility as confession, and weight of a statement by an accused tendered to a
neighbour, a police inspector, the second scenario is about admissibility as confession
and weight of a statement of an accused obtained by inducement but leading to discovery,
the third scenario is about admissibility as confession and weight of a repudiated
confession of the accused and the forth scenario is about admissibility and weight of a
statement by an accused implicating a co-accused and a confession to a police constable.

Generally confession can be defined as, an admission made by a person charged with a
crime stating or suggesting the inference that he committed that crime. The rationale of
receiving confession in evidence is that, there is a presumption that no person will
voluntarily make a statement which is against his interest, unless it be true.

For a confession to be relevant and admissible as evidence there are various conditions
that must be satisfied. These conditions include; that the confession must proceed from
the accused himself, that it should be freely and voluntarily made and that it should be
made to the proper authority and that it should be an admission of every element of an
offence charged.

With regard to the first condition, confession as a general rule must be made by the
accused person himself. This condition is however subject to the exception that, in some
circumstances confession of an accused can be used to implicate co-accused, this is
provided for under section 33 of The Evidence Act, [Cap 6 R.E 2002] hereinafter
referred to as The Evidence Act.

The second condition necessary for acceptance and admissibility of confession is that it
should be freely and voluntarily given. This is provided for under section 27(1) of The
Evidence Act. According to this section in subsection 3 a confession is held to be
involuntary if it is was induced by a threat, promise or other prejudice held out by the
person in authority taking the confession. This position is also supported by Lord Sumner
in the case of Ibrahim V. R in which he stated inter alia that;

“No statement by an accused is admissible in evidence against him unless it is

shown by prosecution to have been a voluntary statement, in the sense that it has
not been obtained from him either by fear of prejudice or hope of advantage
exercised or held out by a person in authority”

The third element is to the effect that for a statement to be accepted and admitted as
confession it should be made to the proper authority. According to sections 27 and 28 of
the Evidence Act, the proper authority includes, Police officer, Magistrates and Justices
of peace, respectively. For avoidance of doubt a Police officer is defined under section
3(1) of the Evidence Act as any member of the police force of or above the rank of
corporal.

The last element is that, for a statement to be taken as confession it should be admission
of every ingredient of the offence with which the accused is charged. In the case of
Swami v. King Emperor104, it was stated that confession should contain a statement by

104
[1939] 1 ALL ER 396
an accused admitting in terms either the offence or at any rate substantially all the facts
which constitutes the offence.

2.0 ANSWERS TO RESPECTIVE SCENARIOS

b) The statement given by Lelemama under paragraph (a) is closely connected to

the issue or concept of confession.

Issue
Whether the words uttered by Lelemama to his neighbour, a police Inspector amounts to
confession.

To answer this issue we shall see to it if all the ingredients of a valid confession are
present. As we have stated above every confession must be made to a person authorized
by the law; it should be voluntarily made; it should be an admission of every ingredient
of the offence; and that it should be made by the accused person. Thus the ongoing part
of this work shall look on each of the ingredients in connection to the scenario at hand.

Confession must be made to an authorized person. Under sections 27 and 28 of the

Evidence Act, the persons authorized to take confessions include; police officers 105,
Magistrates, and Justices of Peace. In our scenario the statement was made to a police
Inspector who is above the rank of Corporal thus authorized by the law to take
confessions.

For a confession made to a police officer to be valid, it should be voluntary. In the case of
R v. Thomson106 it was held that,”a confession is irrelevant and thus inadmissible unless
the prosecution establishes beyond doubt that the confession was made freely and
voluntarily”. Also it must be established that the police officer have warned the maker
that the statement shall be used against him during the trial, and the warning should be
reduced in writing and should be signed or acknowledged by the accused person. The
authority for this is under section 53, 57 and 58 of the Criminal Procedure Act No 9 of
1985. In our scenario the facts are silent as to whether the police officer warned the
maker before taking his confession. If he warned the maker, then the statement would
clearly amount to confession, but if he did otherwise then the statement would not be
confession unless under some special circumstances107.

As to the issue of voluntariness Section 27 of the Evidence Act is to the effect that every
confession must be voluntarily made, that is, it should not be obtained by inducement,
threat or promise108. Again the scenario is silent as to whether the maker made it

105
Police officer is defined under section 3(1) of the Evidence Act, [Cap 6 R.E 2002], as any member of
the police force of or above the rank of Corporal.
106
(1893)2 QB 12
107
These circumstances are such as where the Court is of the opinion that the confession made is nothing
but the truth or where it has led to discovery (Section 31 of the Evidence Act.).
108
Ibrahim V. R [1914] AC 599 at 609
voluntarily or not. If the maker made it voluntarily, then it amounts to confession, but if
the statement was induced by threat or promise then it will not amount to confession.
However, under sections 29, 30 and 31 a confession, regardless of its voluntariness will
be admissible, if it leads to truth, or given after the removal of inducement, or leads to
discovery respectively.

In connection with what we have stated above the burden of proving that the confession
was voluntarily made lies on the prosecution. This is provided for under section 27(2) of
the Evidence Act. Thus this confession shall not be admissible in court as evidence
unless the prosecution has managed to prove its voluntariness.

Another ingredient of a valid confession is that it should admit each and every ingredient
of the offence the accused is charged with. In the case of Swami v. King Emperor109, it
was stated that confession should contain a statement by an accused admitting in terms
either the offence or at any rate substantially all the facts which constitutes the offence.
Thus from what is stated in the Swami’s case we are of the opinion that the statement
made by Lelemama substantially admits all the ingredients of the offence with which he
is charged. The statement that “I have killed my wife,” is the actus reus and the statement
that “she was a bitch” implies that he had formed an evil intention (malice aforethought)
out of jealousy.

As we have discussed above, the statement made by Lelemama will amount to confession
if it is proved that it satisfies all the necessary ingredients. And if it does the court may
rely on it to convict Lelemama.

b) Statement by Mesewi after an inducement held out by the police man.

Issue
Whether the statement can be admitted as confession.

As a general rule for statement to be admitted as confession it must be freely and

voluntarily made to a proper authority. This is the requirement of section 27(1) when
read together with section 28110. However, there are some exceptions to this general rule
in which a confession though involuntarily made can be admissible as against the maker.
These exceptions are found under sections 29, 31 and 32 of the Evidence Act.

To answer this issue, therefore, we must consider whether the statement made by Mesewi
falls under any of these exceptions. The statement made by Mesewi, as general rule,
would not be admissible since it was obtained out of an inducement held on him. But, the
same piece of evidence would be admissible under section 31 of the Evidence Act due
to the fact that it led to the discovery of the stolen articles. Thus despite the inducement
held by the policeman the statement by Mesewi is admissible as confession against him.

109
[1939] 1 ALL ER 396
110
The Evidence Act, [Cap 6 R.E 2002]
This is supported by the case of Nanyalika V. R111 where it was held inter alia that the
fact that the appellant showed the police the spot where the complainant’s stolen box was
recovered, and also his leading the police to the laundryman from whom the complainant
stolen shirt was recovered was admissible as confession against him.

Apart from the discovery of the facts in relation to the offence charged, the statement
made by Mesewi can also be admitted under section 29 of the Evidence Act due to the
fact that it was a true admission of guilt.

Therefore, the statement made by Mesewi can be admitted as a confession and the court
can solely rely on it to convict him.

c) Accused denial of the truthfulness of the statement sought to be tendered in court

by the prosecution as previous confession by him.

Issue
Whether the court can convict the accused basing on the repudiated confession by an
accused.

According to section 27 of The Evidence Act, the court can convict an accused person
basing on the voluntary confession he made to the police officer, Magistrate, or Justice of
the peace. But the Act is silent in cases where an accused person denies the fact that he
made such a confession or that such confession was not voluntarily made.

However, this lacuna was for the first time in East Africa filled by the case of Tuwamoi
v. Uganda112 which introduced the concepts of retracted and repudiated confessions.
According to this case a retracted confession occurs when the accused person admits that
he made the statement recorded, but now seeks to recant on ground that he had been
forced or induced to make it. Thus the statement was not a voluntary one. A repudiated
confession on the other hand is one which the accused person avers he never made.

The Tuwamoi’s case went on stating that when the statement either repudiated or
retracted, the procedure to be followed is that a trial within a trial must be conducted to
ascertain whether the statement was freely and voluntarily made. Also the prosecution
must adduce evidence establishing the circumstances under which the confession was
obtained, and the court to rely on the retracted or repudiated confession there should be
independent piece(s) of evidence to corroborate such a confession. This view was also
held in the case of Jackson Mwakatoka and Others v. R113 where the court, inter alia
held that repudiated confession, though as a matter of law may support a conviction,
generally requires as a matter of prudence corroboration, as is normally the case where
the confession is retracted.

111
[1971]HCD 314
112
[1967] EA 84
113
[1990] TLR 17
However, there are some exceptional circumstances where the court may base the
conviction on an uncorroborated repudiated or retracted confessions. These include
where the court believes or satisfies itself of the truthfulness of such a confession or
where it warns it self on the danger of basing conviction on uncorroborated confession.
This position was held in the case of Hemed Abdallah V. R114. Where the court held
that;

“Once the trial Court warns itself of the danger of basing a conviction on an
uncorroborated retracted or repudiated confession and having regard to all the
circumstances of the case, it is satisfied that the confession is true, it may convict
on such evidence without any further ado”.

In our scenario, the accused states that the statement produced by the prosecution as his
previous confession, is substantially different from the one he actually made. This denial
amounts to a repudiated confession. Therefore the admissibility of such a statement of the
accused in our scenario as a matter of law may support conviction generally, there is no
requirement in law to corroborate such statement but as a matter of prudence
corroboration is required. This position was stated in the Jackson s/o Mwakatoka’s
case.

Furthermore, the confession by an accused in our scenario may be used by the court to
reach conviction without corroboration under certain circumstances. For instance if the
court is satisfied that such statement is nothing but the truth, the court may base
conviction on such a statement admitting it as confession though uncorroborated. This
view was held in the case of Shishobe Seni and Another V. R115 where the court held
inter alia that, “on the evidence, the repudiated confession cannot be anything but true
and conviction can be grounded on them”. Also the court can base conviction on the
confession by the accused in our scenario though uncorroborated if the court warns itself
on the danger of basing conviction on such uncorroborated confession, this view as stated
above was held in the case of Hemed Abdallah V. R.116

Therefore, the confession made by the accused in our scenario, may be admitted by the
court as evidence under the circumstances mentioned above. And the court may base
conviction on such confession or it may need or require another independent piece of
evidence to corroborate the same as the case may be. Hence the weight given to the
confession or statement will largely depend on the wisdom of the court.

d) Under this scenario Nundu makes a statement to the effect that he and his co-
accused where once parties to the common design before he withdrew himself

114
[1995] TLR 172, also Hassan Juma Kanenyera and Others v. R [1992] TLR 100; Hatibu Gandhi
and Others v. R [1996] TLR 12.
115
[1992]TLR 330
116
[1995] TLR 172
 and that the remaining two actually killed the deceased. And Nunda want the
court to disregard the confession he made to the police officer.

Issues.
1. Whether confession made by Nundu will be used against Nunda and Pindu.
2. Whether the statement made by Nunda to a police Constable can be admissible in
Court as confession.

To answer the first issue we should first state the position of the law. Generally,
confession can only be used in court of law against the maker of the statement and not
otherwise but section 33 of the Evidence Act admits the confession of the co-accused.
According to this section the confession of one of the accused persons may be used
against his co-accused. But for this section to apply the confession made by the co-
accused must be of such a nature as to equally incriminate him as it will incriminate his
co-accused.

As per section 23 of the Penal Code, Nunda, though he withdrew himself from the
commission of the offence yet he will be equally regarded as a party to that offence of
murder. The section provides as follows;

When two or more persons forms a common intention to prosecute an unlawful

purpose in conjunction with one another, and in the prosecution of such purpose
an offence is committed of such a nature that its commission was a probable
consequence of the prosecution of such purpose, each of them is deemed to have
committed the offence.

The withdrawal by Nundu was not sufficient enough to exempt him from criminal
liability. For a person to successfully withdraw himself from the commission of the crime
he should communicate his intention of so doing to the proper authority in reasonable
time so that the commission of that offence can be prevented. Thus Nundu had to report
the matter to the police in a sufficient time so that the police could apprehend the
offenders. Since he raised an alarm at the time the offence was committed he is still as
liable as those who actually killed the deceased. There are various authorities to this end,
among them is Glanville Williams117 who stated that, to avoid liability, the accused could
go to the police or give timely warning to the intended victim. According to Ormerod 118 a
clear pre-condition for an effective withdrawal is unequivocal communication of
withdrawal. This can be communication to the principal, and if more than one to all
principals, or by communication with the law enforcement agency.

Having seen that Nundu is party to the commission of the crime, it is now our turn to see
whether his confession can be used against Nunda and Pindu. For a statement made by a
co-accused to be used against his co-accused as confession it should not be exculpatory;
it should be capable of incriminating him the same way as it would incriminate his fellow
accused persons. An exculpatory statement by an accused person implicating a co-

117
G. Williams, (1983) Textbook on Criminal Law, 2nd Ed, P.363
118
D. Ormerod, (2005) Smith and Hogan Criminal Law, 11th Ed, Oxford University Press, Oxford.
accused cannot be acted upon to convict the other co-accused. This position was held in
the case of Ali Salehe Msutu V. R119.

After stating the position of the law, it is now our turn to consider or relate the position of
the law with our scenario. Since the withdrawal by Nundu was not sufficient enough to
exempt him from liability, we are of the opinion that he will be equally liable to the
offence charged as Nunda and Pindu are. The statement made by Nundu will therefore be
admissible as confession against himself and his co-accused due to the fact that it equally
incriminates him as it does to Nunda and Pindu.

However, as a matter of law120 and practice the court can not base its conviction solely on
the uncorroborated confession of co-accused. This position was held in various cases, for
instance, in R. v Kusenta Cheligia and another121 Mr. Justice Mnzavas (as he then was)
held, inter-alia;

"Where an accused person implicates himself with an offence, his statement that
a co-accused participated in the commission of the offence must be corroborated
by other independent evidence pointing to the guilt of his co-accused."

In the case of Asia Iddi V. R122 the Court stated inter alia that; “conviction can not be
based solely on a confession by a co- accused. There must be, in addition, other
independent testimony to corroborate it”.

With regard to the second issue, whether the statement by Nunda to a Police Constable
can be admitted as confession, it is clearly the position of law as stated by sections 3 and
27 of The Evidence Act that this statement is inadmissible as confession.

According to Section 27, “a confession voluntarily made to the police officer by a person
accused of an offence may be proved as against that person”. A police officer within the
meaning of the Evidence Act, as defined by section three is, “any member of the police
force of or above the rank of corporal”. Therefore the statement made by Nunda to a
police constable is not admissible as confession due to the fact that Police constable is
below the rank of corporal, who within then meaning of The Evidence Act is not a
police officer. However, Nunda’s statement to a police constable may otherwise be
admissible as confession if it leads to discovery as per section 31 of The Evidence Act.

ALTERNATIVE ANSWER
1.0 INTRODUCTON

The question requires to discuss the admissibility and weight of evidence in the four
scenarios as they have been set forth. Before giving attention to the main discussion it is

119
[1980] TLR 1
120
Section 33(2) of The Evidence Act [Cap. 6 R.E 2002]
121
[1978] LRT No. 11
122
[1989] TLR 174
important first at this stage to make clear meaning on the terms admissibility and weight
of evidence.
Admissibility in one hand is a matter of law for the judge although it may sometimes
depend on a preliminary finding of the fact by him while the weight of evidence on the
other hand, is a question of fact with numerous factors that may affect it. Obvious
instance are provided by the age, reliability or demeanour of a witness, the proximity in
time of certain facts to those under investigation and the number of possible explanations
of a particular event.

2.0 MAIN BODY

(a) On 25.11.1980, Lelemama was arrested for killing his wife. During his trial, evidence
was given by his neighbour, a Police Inspector, that immediately after the killing, the
accused (Lelemama) told him, “ I have killed my wife, she was a bitch.”

In determining the admissibility and weight of this evidence the following issues will be
put into consideration:-

Whether the confession made to a Police Inspector can be admissible.

Whether the confession has sufficient weight as an evidence to lead the conviction.

In relation to the first issue one has to refer to the provisions of section 27 of Tanzania
Evidence Act, which enacts rules of confession. The section provides the new rule of
confession which was not provided in the old Tanzania Evidence Act by allowing
confessions made to police officers to be admissible provided that the prosecution proves
it was voluntary. The section reads as following:-

“A confession voluntarily made to a police officer by a

person accused of an offence may be proved as against that
person.”

The position before the amendment was that, the confession made to a police officer is
not admissible. The new rule under section 27 came after the amendment made by
section 4 of the Evidence (Amendment) Act, which came into force 1st December 1980
under the Government Notice No. 172/80.

In relation to the scenario Lelemama was arrested and gave his confession to his
neighbour, a Police Inspector on 25.11.1980. This means that the Evidence (Amendment)
Act was yet to be into force and therefore the admissibility of a confession made by
Lelemama to a Police Inspector should be determined by the old Tanzania Evidence Act
which does not allow admissibility of confession made to a police officer. Therefore it
follows that under the old law, a confession by Lelemama cannot be admissible.
In relation to the second issue, which relates to the weight of evidence it follows that
since the evidence is not admissible it follows that no weight can be inferred from it to
support the conviction thus the evidence is to be disregarded in its entirety.

(b) Mesewi, a reputable businessman is charged with Armed Robbery. On the day he was
arrested, a police man told him, “It will be better for you to tell the truth as it will server
a shame of a search warrant in your house”. Whereupon Mesewi makes a confession
and directs the police officers to his hideout where the goods stolen and robbed on divers
dates are found.

The observation from the scenario is that the confession made by Mesewi was obtained
by inducement following the words by a police man that “It will be better for you to tell
the truth as it will server a shame of a search warrant in your house”. Thus to
determine the admissibility of the evidence here the issue will be:-

Whether the confession made by Mesewi with the inducement of a policeman is

admissible and has any weight to lead the conviction.

The general rule regarding admissibility of a confession is that a confession made to a

police officer must be a voluntary one123. In order to be voluntary, a confession must not
be induced by any threat, promise or other prejudice held out by the police officer to
whom it was made or by any member of the police force or by any other person in
authority.124

However, the above position of the law does not operate as an inflexible rule and rather
there is an exception on this general principle. The law is to the effect that if confession
leads to discovery is admissible regardless of it been made by inducement. Section 31 of
the Tanzania Evidence Act provides as follows:-

“When any fact is deposed to as discovered in consequences if

information received from a person accused of any offence in
the custody of police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly
to the fact thereby discovered is relevant.”

Section 31 should be read together with section 30, which gives power the courts to
gives, its opinion in the issue relating to confession made by inducement if such
inducement been fully removed the confession is relevant and need not be rejected.

The position in Tanzania regarding discovery of facts is as well the same as in Common
Law. For instance in the case of Customs and Excise Commissioners v. Harz125 the
House of Lords pointed out that; if the interrogation had been conducted in a manner

123
See Section 27(1) of Tanzanian Evidence Act
124
See Section 27(3) of Tanzanian Evidence Act
125
[1967] All ER 177
authorized by a relevant statute ensuing statement by the accused would probably have
been admissible. Although more depends in circumstances than actual words but in this
case in which words like; “speak the truth”, “it will be better for you” or “the time
has come when you had better make a statement”, it was held admissible.
Also in R v Reeve and Hancook126 a confession made after the Police had informed the
accused that he could not be exposed to the public if he disclose the where about of
certain property has been held admissible

With this exception to the general principle it follows therefore that, though a confession
made by Mesewi was obtained out of inducement, that become immaterial and what is
important is whether his confession lead to the discovery of facts. However, it is
suggested that, in applying section 31 limitations should be imposed on it as not all
discovery of facts shall be taken to be admissible. A good authority to support this is the
case of Ally Fundi v R127 where it was stated among other things that;

“…it is not the whole of the statement made by the accused in

consequence of which the fact is discovered which is
admissible; it is only so much of the statement which distinctly
relates to the fact discovered. In other words the information
and the fact alleged to have been discovered should be
connected with each other as cause and effect. Any portion of
the information which does not satisfy this test should be shut
out of the case. It should be pointed out, for the avoidance of
doubt,…that the word "discovered" is used in the section to
mean physically discovered and not mentally discovered. The
rationale behind the section is that if a fact is actually
discovered in consequence of information given, some
guarantee is afforded thereby that the information was true,
and accordingly can be safely allowed to be given in
evidence…”

From the scenario it is clear that discovery of the goods stolen and robbed on diver dates
is a discovery of physical items which relates to the alleged armed robbery therefore his
confession will be admissible regardless of the inducement made by the police man.

As regard the weight of evidence, since a confession has lead to the discovery of facts,
which are sufficient to prove the case against Mesewi, then it follows that such discovery
will form the basis of conviction.

(c) In the course of trial, the accused states that the statement produced by the prosecution
as his previous confession, is substantially different from the one he actually made.

126
(1872) L.R. 231
127
[1983] T.L.R 210
As far as the law of evidence is concerned when an accused person denies that the
statement made as his previous confession is different from the one he actually made the
confession is said to be repudiated .An accused person has a liberty to repudiate or retract
a confession previously made by him out of court, this is why the prosecution has the
burden of proving that the evidence was freely and voluntarily made. In the repudiated
confession the accused person disowns the confession .He says he never made the
confession nor statement, which is produced by the prosecution. In the case of Tuwamoi
v. Uganda128 ‘’…the repudiated statement is one which the accused person avers he
has never made’. When such circumstances arise the court has a duty of holding a trial
within the trial to consider whether the confession should be admissible as in the case of
Ezekiel v. R.129.Also the court may asses the character of the confession and the
circumstances under which it was made as R. V. Habash130, the last way in determining
the retracted and repudiated confession is to demand for corroborative evidence as in the
case of Hatibu Ghandi V.R131 it was held that ‘…A conviction on a retracted
uncorroborated confession is competent if the court warns itself of the danger of acting
upon such a confession and is fully satisfied that such confession cannot but be true. A
retracted uncorroborated confession, if truthful, can corroborate other evidence against
the confessor. If it has been discovered that the repudiated confession is true and the court
has warned itself then it amount to conviction. This concept has also been discussed in
the case of Shihobe Seni and Another v. Republic132 it was held that;

“as the confessions were repudiated then there was a need

for ascertaining their reliability and/or seek corroboration
but the learned trial judge did not even warn himself of that
requirement; on the evidence, the repudiated confessions
cannot be anything but true and a conviction can be
grounded on them”

(d) Nundu, Nunda and Pindu are jointly charged with the offence of murder. The
Prosecution tenders in evidence a statement made by Nundu before a Police Officers to
the effect that shortly before the offence was committed, he changed his mind and
persuaded his co accused to spare the deceased but the two could not listen and in fact
they killed the deceased as Nundu was busy raising an alarm. On his part, Nunda informs
the court that while in police custody, one superintendent of police had told him, “You
are not obliged to say any thing unless you wish to do so, but what you say may be put
in writing and be given in evidence.” However, hardly had the superintendent left than a
police constable asked him to make the confession or else…He therefore invites the court
to disregard the confession made at the police station.

In determining whether the court can disregard the confession the issue will be whether
the police constable has the power to take confession.

128
[1997]EA 84
129
[1972] HCD 194.
130
[1936] E.A.C.A 48
131
{[1996]T.L.R 12
132
[1992]T.L.R 330
Section 27(1) of the Tanzanian Evidence Act requires that a confession be made to a
police officer. Section 3 of the same Act defines who is a police officer, that is, “…any
member of the police of or above the rank of corporal. The Police Force and Auxiliary
Service Act [Cap. 322 R.E 2002] under section 4 provides for the ranks of Police Force
members by order of seniority of which a police constable is neither of the rank of
corporal nor above the rank of corporal therefore a constable lacks the power to take
confession and thus it follows that the confession made by Nunda will be inadmissible
and disregarded by the court hence lacks weight to support the conviction as well.

QUESTION 6

Consider the following scenarios and briefly discuss the appropriate cause of action you
would take:

(a) You have been instructed by your senior state attorney to prosecute Mr. X who is
charged with theft. However, fortunately or otherwise your case rests on the
evidence of two children, Mary and Juma who aged 13 years and 10 years
respectively. Mary’s story is to the effect that she saw the accused leaving the
shop in question with a loaded suck. As that Juma, stated that he was hunting bird
in the bush he saw the accused that looked worried and tired hiding a loaded
“Rambo” under the grass.

(b) As a principal Resident Magistrate with extended jurisdiction you have just heard
a murder case in which it was in defence case as testified by Dr. Kishoka, an
experienced and highly qualified psychiatrics, that at the commission of the
offence the accused was under the delusion and hallucination that the deceased
was be witching him.

(c) You are trying a case and an defence is raised by the advocate for the accused to
the effect that the purported confession produced by the prosecution is wholly
inadmissible because it was made before a district magistrate sitting in a Resident
Magistrate court and therefore in law the magistrate was neither vested with
jurisdiction nor is he a justice of the peace.

INTRODUCTION
In as far as our question is concerned the discussion will be based on the issues raised
from each scenario. Generally the discussion has based on the three major concepts of the
Evidence Law. These are evidence of a child of tender years; exparte opinion; and
confession before the magistrate.

EVIDENCE OF A CHILD OF TENDER YEARS

Witness in a strict legal sense means one who gives evidence in a cause before a court of
law; in general sense it includes all persons from whose lips testimony is extracted to be
used in any judicial proceeding and so includes deponents and affiants as well as persons
delivering oral testimony before a court133.

In the Evidence Act [CAP. 6 R.E, 2002] (hereinafter to be referred as the Act) there is no
definition of the term witness, however the Act provides the general rule that every
person shall be competent witness to testify unless the court considers that he is incapable
of understanding the question put to him by the reason of tender age, extreme old age or
due of disease134.

In answering the given scenario the following issues can be raised and discussed as
follows;

Whether the evidence of the child of tender age is admissible.

The child of tender years has been defined under the Evidence Act to mean a child of or
below the apparent age of fourteen years135, and the general rule which is provided in that
Act is to the effect that, every person is competent to testify unless the court finds that he
can not testify due to the reason of the tender age or old age or suffer from disease of
mind136. This provision imposes the duty to the court to determine who is competent
witness to testify before it. Therefore, section 127(2) of the Act indicates circumstances
under which the child of tender age can be called as a witness in the criminal cause and
his or her evidence could be admissible.

The first circumstance is where the child understands the nature of the oath. Before the
court can take the evidence of the child of tender years, the court has the duty to
investigate as to whether the child of tender years knows the nature of an oath. In
examining as to whether a child knows the nature of an oath the court has to conduct
voire dire examination.

Voire dire examination is the questions paused by the court to the child of tender years to
ascertain whether the child knows the nature of an oath. Such questions are directed to
matters related to religious beliefs, which are fundamental to the understanding of an oath
to a child. In the case of Kibaragenyi Arap Kolil v R137, it was observed that, the
investigation should proceed the swearing on evidence and should be directed to the
particular questions of whether the child understand the nature of an oath than question of
general intention. Further, in the case of Kisiri Mwita V R138 it was held that, since the
child was aged 13 years, he was a child of tender years and so his evidence ought not to
have been received without first conducting a voire dire examination.

133
Blacks law dictionary 8th p.1633
134
Section 127(1) of Evidence Act.
135
Section 127(5) of Evidence Act
136
Section 127(1) of Evidence Act
137
(1959) E.A 92
138
[1981] TLR 218
When the child’s evidence is taken on oath such evidence solely can form the base of
conviction to the accused person and his evidence so given is good as that of adult, this
was held in the case of Elias Joakim V R139.

In case the child does not know the nature of an oath, the court may receive the evidence
of such a child of tender years without considering an oath if the court satisfy that the
child has sufficient intelligence to justify the reception of his evidence and understand the
duty of speaking the truth140. In such a case the court has the duty of recording questions
and answers that respond from the child. This is stated in the case of R V. Khan141 where
there was an inquiry about a child understanding the nature of oath. The questions and
answers should be recorded so that they appeared in the official transcript.

Whether the evidence of a child of tender years needs corroboration.

Corroboration in evidence law is the matter of practice and not a matter of law, and such
practice is obtained in the case laws. Therefore, in answering the issue whether the
evidence of a child of tender years need corroboration, that practice can be seen in the
case of Shozi Andrew V R142 where it was held that the sworn testimony of a child of
tender years does not need corroboration. It can be treated as any other sworn testimony
and it could form the basis of conviction.

From the case law cited above it implies that corroboration pertaining the evidence of a
child of tender years is not mandatory if the child manages to take an oath. This can be
acted as a sole evidence to convict the accused, but in case the child fails to take an oath
his/her evidence needs to be corroborated. In case the court receives unsworn testimony
of the child of tender years without corroboration the court has to warn itself the danger
of convicting the accused on that evidence if it is fully satisfied that the child is telling
nothing but the truth143. Further, the evidence of the child of the tender age which taken
unsworn may be acted upon by the court as material evidence corroborating the evidence
of another child of tender age previous given 144.

From the scenario it shows that the prosecution has two witnesses, Mary and Juma whose
ages are 13 and 10 years respectively. Mary’s story is to the effect that she saw the
accused leaving the shop in question with a loaded suck. As that, Juma stated that, he was
hunting bird in the bush then he saw the accused that looked worried and tired hiding a
loaded “Rambo” under the grass. Their stories tend to implicate the accused person with
the offence he is charged with. We are of the view that, the evidence testified by Mary
may be corroborated by Juma. Therefore these children would be competent witnesses on
the prosecution side. But the point to take in mind is that the court has the duty of
conducting voire dire examination in order to know whether these children know the
nature of oath or they possess sufficient intelligence to justify the reception of their
evidence and understand the duty of speaking the truth.

139
[1992] TLR 220
140
Section 127 (2) of Evidence Act, 1967.
141
(1981) 73 Cr. App. R 190
142
[1987] T.L.R68
143
Section 127 (3) of Evidence Act, 1967.
144
Section 127 (4) of Evidence Act [CAP.6 R.E. 2002]
EVIDENCE OF OPINION OF EXPARTE WITNESS
As the general rule of evidence that the opinions of witnesses, whether parties themselves
or third persons, as to the existence of the fact in issue or relevant facts are inadmissible.
As it was said in the case of Carter V Boelim145 that it was for the court to form opinions
or draw inferences from the relevant fact. However, there are instances, which provide
exceptions to this general rule and evidences of opinion may in certain circumstances be
admissible. If it is admissible then the opinion held must be proved by direct oral
evidence of the person who holds that opinion. An important category of admissible
opinion evidence is that of experts.

There is no a clear definition of the term expert under the Evidence Act but section 47 of
the Act provides that,
“When the court has to form an opinion upon a point of foreign
law or science or art, or as to identify of handwriting of finger
or other impressions, opinions upon that point of possessing
special knowledge, skill, experience or art or questions as to
identify of handwriting or finger or other impressions are
relevant facts. Such persons are called experts”.
In the case of R V Secretary of States146 expert opinion was defined by the court that,
“whenever a subject is upon one which competence to form an
opinion can only be required by a cause of a special duty or
experience such as science, art, technical terms, foreign law the
opinion of expert is receivable and the court is not necessarily
bound on it”.
An expert witness is a witness who by the virtue of education, profession publication or
experience is believed to have special knowledge of his subject beyond that of the
average person, sufficient that others may officially and legally rely upon his opinion147.

In answering the issue whether opinion provided by Dr. Kishoka is admissible, the
general rule of the evidence is that the opinions of witnesses, whether parties themselves
or third persons, as to the existence of the fact in issue or relevant facts are inadmissible.
However, there is an exception whereby the opinion of witness possessing peculiar skill
is admissible. Whenever the subject matter of inquiry is such that inexperienced persons
are unlikely to prove capable of forming a correct judgement upon it without such
assistance. For instance matters relating with science like medical examination or art
needs to be expressed by person who has profession acquired academically and
experience too on the issues in question. Such opinion of this person, who is expert in the
field in question, is admissible before the court. Further such evidence of expert should

145
3 Borrow 1905
146
(1941) 2 Q.B 169
147
(Wikipedia: The Free Encyclopedia
be given in oral form and a mere certificate by him is not admissible. This is stated in the
case of Southern Indian Corporation Ltd V Stanley and Sons Ltd 148 whereby it is a
fundamental condition for expert opinion to be admissible. The presence of the person
giving such opinion enables court to taste the credibility, knowledge and experience of
that person.

Whether the court is bound by opinion of Dr. Kishoka.

Though the expert opinion is admissible before the court such opinion does not bind the
court to form conclusion basing on the opinion of the expert. However the court has the
duty of giving reason for disregarding the opinion of that expert. This was stated in the
case of Doris Liundi V R149 whereby it was held that the court is not bound to accept
medical testimony if there is good reason for not doing so. At the end of the day, that is, it
remains the duty of the trial court to make a finding and in doing so it is incumbent upon
it to look at and assess the totality of the evidence before it, including that of medical
expert. Further, failure to give reason of rejecting expert opinion that will be unjudicial.
This was held in the case of C. D. de Souza V B. R. Sharma150.

Further, an expert witness is not like ordinary witness who hopes to get his expenses but
he is employed and paid in the sense of gain, being employed by the person who calls
him. Undoubtedly, there is a natural bias to do something serviceable for those who
employ him and adequately remunerate him151.

The evidence of expert is to be received with caution, because they may often come with
such a bias in their mind to support the cause in which they are embarked that their
judgment became warped, and they themselves become even when conscientiously
disposed, incapable of expressing a correct opinion.

It is the duty of expert to furnish the court with necessary scientific criteria for testing the
accuracy of their conclusion so as to enable the court to form their own independent
judgement by the application of these criteria to the fact proved in the evidence.
Therefore a doctor giving a medical testimony in a criminal trial may be regarded as
giving independent expert evidence to assist the court. It is quite wrong for the court to be
directed that this evidence should be accepted in the absence of the reason of rejecting it.

The scenario shows that Dr. Kishoka is experienced and highly qualified psychiatric
testified on the defence case that at the time of commission of the offence the accused
was under delusion and hallucination that the deceased was be witching him. Therefore,
in answering this question it thus such evidence of expert is admissible but the court is
not bound with such opinion. Further, if the court receives such opinion it has to do so
with caution because that expert witness may be bias on the side calling him. If the court
rejects such opinion of the expert it has to give a good reason for doing so, and failure to
that is unjudicial.

148
[1967] HCD 148
149
[1980] TLR 46
150
[1953] 26 KLR 41
151
Abinger V Ashton [1873] L.R 17
CONFESSION BEFORE A MAGISTRATE
Confession is defined under the Evidence Act 152. It is also defined in the case of Pakala
Narayana Swami V King Emperor153 as an admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed that crime.

For confession to be admissible it must contain the following elements; it should be free
and voluntary made to the persons indicated under section 27 and 28 of the Evidence Act,
that is, it must be made to Police Officers, Magistrates (including the Primary, District
and Residence Magistrates) and Justices of the Peace or any other person in authority; it
must be true in the sense that it will sustain a conviction; it must be made by an accused
himself; it should be free from threat, promise or other prejudice held out by police
officer to whom it was made or any other person in authority.

The onus of proving the confession is lying to the prosecution that the confession made
by accused was voluntary made and not obtained under improper means 154. This is also
provided in the case of R. V Thomson155 as follows;
“It is the duty of prosecution to prove in case of doubt the
prisons statement was free and voluntary and did not discharge
themselves on the obligation”

The question given indicates that the objection has been raised by the advocate of the
accused to the effect that the purported confession produced by the prosecution in whole
is inadmissible because it was made before district magistrate sitting in resident
magistrate court and therefore in law the magistrate neither vested jurisdiction nor is he a
justice of the peace.

In responding this question the following issues can be raised and discussed as follows;

Whether the confession made to the district magistrate was inadmissible.

According to Section 27 and 28 of the Evidence Act provides for persons in authority to
whom the confession can be made. These persons include magistrates. However the
Evidence Act does not define who is a magistrate but the definition is provided for under
the Interpretation of Laws and general Clauses (CAP.1 of the Laws)156 and the Magistrate
Court Act, 1963157 to mean a resident magistrate, a district magistrate and a primary
magistrate. From the provisions of the Acts magistrate includes district magistrates,
therefore this gives impression that he is among the person in authority who can receive
confession. The mere sitting on the resident magistrate court does not eliminate the power
of receiving confession from the accused person. Further section 2 of the Magistrate
Court Act and Interpretation of Laws and General Clauses define district magistrate to
include a resident magistrate. From these views it seems that these two magistrates have
concurrent jurisdiction.

152
Section 3 (1)
153
(1939) 1 All E.R 396
154
Section 29 of the Evidence Act
155
(1893) 2 Q.B 12
156
Section 3 (1) of The Interpretation of Laws and General clauses.
157
Section 2 of The magistrate Court Act, 1963
For the confession to be rejected by the court the accused or his counsel must show that
such confession has been obtained by an inducement, threat or promise having reference
to the charge against the accused person himself158.

So the confession made to the district magistrate sitting in the residence magistrate court
will be admissible because the scenario does not show whether that confession was made
by inducement, threat or promise. In such a case the court cannot reject that confession.

CONCLUSION.
From the discussion above we are of the view that for the evidence of the child of tender
age to be admissible it is onus of the court to satisfy itself that the child of tender age
knows the nature of oath or has sufficient intelligence and duty of speaking the truth. If
the child fails to take an oath his evidence will be received by supported evidence from
other material evidence. That is the matter of practice and not the matter of law.

In the other hand the opinion of the exparte is admissible before the court if it is made by
the exparte who is by the virtue of education, profession publication or experience is
believed to have special knowledge of his subject beyond that of the average person,
sufficient that others may officially and legally rely upon his opinion. However the court
is not bound by the opinion of exparte witness but the court has to give good reason for
rejecting that exparte opinion.

Meanwhile the confession taken before a district magistrate sitting in the residence
magistrate does not invalidate such confession because district magistrate has jurisdiction
of taking confession from the accused person bear in mind that confession is taken on
criminal proceeding in which district magistrate has concurrent jurisdiction with
residence magistrate in criminal matter unless he has extended jurisdiction.

ALTERNATIVE ANSWER

OUTLINE:
- Introduction
- Main body:
(a) First scenario:
-Whether the child of tender age is competent to testify
-Whether the evidence of a child of tender age requires
corroboration
(b) Second scenario:
Whether an opinion of an expert can bind the court.
-Who is an expert?
-Credibility of an expert witness
(c) Third scenario:
-Whether the confession made before the district magistrate

158
Section 29 of the Evidence Act.
 sitting in the Resident magistrate is admissible.

1.0 INTRODUCTION
All persons shall be competent to testify, however, a person can not give evidence in
court unless he or she is competent to testify; in other words if the court finds out that
they cannot testify due to tender age, old age, diseases and insanity, who are unable to
understand the questions or cannot give rational answers to those questions, and the
liability to determine whether the witness is competent lies with the court. This is the
general rule under the Tanzania Evidence Act (cap) (hereinafter referred to as the Act)159

A witness is a person who can testify to court or give evidence which the court judgments
are normally made based on them. In order for a person to testify or be a competent
witness, he or she must be conversant with the facts of the case also the evidence to be
given should be admissible. The competence of a person to testify as a witness is a
condition precedent to the administration of to him of an oath or affirmation and is a
question distinct from that of his credibility when he has been sworn or has been affirmed

A child of tender age is the child of or below the apparent age of fourteen years, as
provided under the Act.160

2.0 MAIN BODY

Having seen the definition of witness and who may testify, the consideration is now on
the scenarios given.

(a)
In attempting the first scenario the following issues have been raised:
(i) Whether the child of tender age is competent to testify
(ii) Whether the evidence of a child of tender age requires corroboration
In discussing the first issue, the general rule is that all persons are competent to testify
unless the court considers that they are prevented from understanding the questions put to
them.

No precise age fixed by law within which they are absolutely excluded from giving
evidence on the presumption that they have no sufficient understanding. This was held in
case of R. v. Brasier.161 Neither can any precise rule be laid down respecting the degree

159
Section 127(1) of the Act
160
Section 127 (5)
161 (1779) 1leach 1999 the court held that “there is no precise or fixed rule as to the

time within which infants are excluded for giving evidence, but the admissibility
of intelligence and knowledge which will render a child a competent witness. The
intellectual capacity of a child to understand questions, and to give rational answers
thereto is the sole test of his testimonial competent and not any particular age. In all
questions of this kind much must depend upon the good sense and direction of the judge.

It is not open to a judge to exclude a child’s evidence by reason of age alone since the
words of section 33A (2A) of the Criminal Justice Act of 1988 that a child’s evidence
should be received unless it appears to the court that the child is incapable of giving
intelligible testimony are mandatory.162 That is the position in India; however, in our
jurisdiction the same is provided by section 127(2) of the Act, that the evidence of the
child can be taken without oath and section 254 of the Criminal Procedure Act No. 9 of
1985, which deals with the Cross-Examination; also, rules concerning corroboration will
apply.

It is the duty of the court to determine whether the child understands the nature of an
oath as it was held in the case of Nyasani .v. R.163 If it is satisfied that the child
understands the nature of an oath it may proceed to swear or affirm him for the purpose
of giving evidence. It has to be made clear that the competence of a child of tender years
to give sworn evidence in either criminal or civil proceedings depends upon whether the
child understands the nature of an oath. As a matter of law such evidence need no
corroboration. In the case of Shozi Andrew v. R164 the court held that in terms of section
127(2) of the Act sworn testimony of the child of tender years does not need
corroboration. The court added that, such evidence can be treated as any other sworn
testimony and it can form the bases of a conviction. However, in practice, court normally
do not convict on such evidence without warning themselves on the danger of convicting
on the bases of uncorroborated evidence of a child. In the case of Kibageny v. R 165 it was
stated that the court should ask questions to the child as to his age, religion, if any and
such other questions as will assist it in determining whether the child understands the
nature of an oath or affirmation and its obligation; such an examination of an intelligence
of a child of tender age is called Voir Dire. Therefore, although it is always necessary to
take care where a question is raised as to whether the competence of a child witness,
where a child is capable of giving intelligible testimony, the court does not enjoy some
wider discretion to refuse to permit that evidence to be given 166
Basing on the above discussion and case laws it is clearly seen that the evidence of two
children Mary and Juma who are aged 13 and 10 years respectively can be admitted.
They are competent witness as their testimony may lead to conviction of the accused
person.

depends upon the sense and reason they entertain of the danger and impel of falsehood
which is to be connected form their owners to questions propounded by the court”
162 Ratanlal, l, k.t dhirajlal (2004) the law of evidence (21 Ed) Wadhawa & Comp Nagpar,

New Delhi, India

163
[1958] E.A 190 C.A
164
[1987] TLR 68
165
(1959) E.A 92 C.A
166
Ratanlal, l, k.t dhirajlal Op cit.
 With regard to the second issue as to whether the evidence of the child of tender age
requires corroboration; the term ‘corroboration’ is defined in Black’s Law Dictionary, 167
to mean confirmation or support by additional evidence or authority. As a matter of
practice, evidence of a child of tender age requires corroboration. However, such
evidence will not require corroboration if it falls under the Sexual Offence Special
Provision Act (SOSPA), Act No 4 of 1998 where the child is the victim of the offence as
per section 127 (7) of the Act as amended by section 27 of Act No. 4 of 1998.

Further, section 127(3) provides that:

“ Notwithstanding any rule of law or practice to the contrary, where
evidence received by virtue of subsection (2) is given on behalf of the
prosecution and is not corroborated by any other material evidence in
support of it implicating the accused the court may, after warning itself of
the danger of doing so, act on that evidence to convict the accused if it is
fully satisfied that the child is telling but the truth.”
We conclude by saying that, the evidence of the two children must be corroborated since
their evidence talk of two different scenes, and does not establish the fact in issue (theft).
The mere fact that Mary saw the accused leaving the shop with a loaded sack does not
mean that the accused might have stolen the goods, thus does not establish the fact in
issue that he saw the accused stealing, hence, her evidence needs corroboration.
The evidence of Juma that he saw the accused who was worried and tired hiding a loaded
“Rambo” under the grass may or may not need corroboration because, in the first place,
had it not been that he stole the goods he would not have hidden them and been that much
worried; in the second place, it needs corroboration because it does not establish the fact
in issue, that is, stealing.

(b)
With respect to the second scenario the following questions have been raised to answer
the fact in issue:
Whether an opinion of an expert can bind the court.
-Who is an expert?
-Credibility of an expert witness

A witness expects the court to believe him and decided a particular case or issue(s) in his
or her favour. One of the important things to a witness is his trustworthiness. In order to
win the trust of the court a party is required to present witness who is trustworthy. In
practice the court will not normally trust witnesses without checking their credibility and
also the number of witnesses required to prove a case gagging the weight of evidence. In
the case at hand, the doctor is an expert in psychiatric. In the case of R .v. Secretary of
State168 expert opinion was defined by the court that “whenever subject is upon one
which is competence to form an opinion can only be required by court of special duty or
experience such as science, art, technical terms, foreign law - the opinion of expert is
receivable and the court is not necessarily bound on it”

167
(2004), 8th ed
168
[1941] 2 Q.B 169
The Act recognizes expert opinion under sections 47 and 48. Section 47 provides that “
when the court has to form opinion upon a point foreign law, or of science or art, or as to
identity of handwriting or finger or other impressions, opinions upon that point of persons
possessing special knowledge, skill, experience or training in such foreign law, science or
art in question as to identity of handwriting or finger or other impressions are relevant
facts.”

However, it is emphasized in that same section in subsection two that, persons possessing
the above given qualification are called experts. Therefore, it is important for the court
before admitting any person’s opinion to satisfy that such person possess the qualification
given in the above section as well as the case law provides. An expert is person who,
through education or experience, has developed skill or knowledge in a particular subject,
so that he or she may form an opinion that will assist the fact finder, 169 thus, expert
evidence is the means from which an inference may logically be drawn as to the
existence of a fact, that is, demonstration of fact given by an expert in the subject matter.

In the case of South India corp. V. Stanley & sons Ltd170 it was observed that the
opinion of the expert must be given orally in the court and a mere certificate by him is not
evidence. This therefore is a fundamental condition for the expert opinion to be
admissible. The presence of the person giving such opinion enables the court to test the
credibility, knowledge and experience of that person. From the above statutory law and
case law we note that an expert is person possessing special knowledge, skill, experience
or training in certain field and the special knowledge or skill is not confined to
knowledge acquired academically but also through practical experience. As we have seen
that, person should appear himself in the court to give his opinion where his credibility
and experience is testified as to convince the court to believe in the opinion given by him.
In the case of Hassan Salim .V. R171 it was stated that the opinion of an expert has not
been taken as conclusive evidence but only admissible to aid the court to come to
convenient and correct conclusion in the matter which require expert opinion and follow
otherwise the court can brush out the opinion of the expert. Nevertheless, matters of high
technicalities, expert opinion must be given great priority and in testing the credibility of
the witness. There is no hard and fast rule to determine the credibility of witness, the
weight of their evidence and the sufficiency of the same, as it was stated in the case of R
.V. Madhub Chamber.172

Credibility of a witness depends on some facts such as knowledge of the

facts, disinterested and independence in relation to the issues in the case and
the results, intelligence, integrity and veracity of the witness. The Act
provides two ways in determining the credibility of the witness. This is by
impeaching the credibility of the witness and by observing his or her
169
Black’s Law Dictionary (8th Ed) at pg 619
170
(1967) HCD 148
171
(1964) E.A 126
172
(1874) 2 .WR. Cr.1319 Birch J stated, “ For weighting evidence and drawing inference form it, there can
be no common. Each case presents its own peculiarities and in each common sense and shrewdness must be
brought to bear upon the facts solicited.
demeanor by the court. Impeaching is done through cross-examination as
provided under section 147, 156 and 141 of the Act. This includes
examining his errors, omission, mode of life as provided under section 155
and 158 of the Act; and by discrediting the witness using independent
evidence as provided under section 164 of the Act. Section 164 (1) (b) of the
Act states that, the credibility of a witness may be impeached by proof that
the witness has received a bribe or an offer of a bribe to give evidence. By
confronting the witness with his or her previous conflicting statement
written (section 154 of the Act), or oral (164 (1) (c)) of the Act and lastly by
contradicting him or her on relevant matters that is by calling witnesses or
offering evidence to contradict the witness on all relevant matters (section
154 and 164 (1) (3) of the Act. In the case at hand, doctor Kishoka who is
highly qualified and experienced psychiatrist, causes of action which may be
taken is to consider the credibility of his evidence and whether it confine
with the requirement provided in the rules of evidence and whether his
opinion binds the court.
Expert evidence has been considered by the court in the following cases: In the case of
R. v. Agnes Doris Liundi173 the issue in this case was whether the court is bound to
accept evidence of medical expert. The court held that, ‘the court is not bound to accept
a medical expert’s evidence if there is good reason for doing so’. Also a court does not
however, have to accept the opinion which the expert give if it finds good reason for not
doing so though it was stated in the case of C.D. de Souza v. B.R Sharma174 that to
reject expert evidence without giving reasons might well be unjudicial. It appears that,
the court is bound by medical expert evidence; but it may depart from such evidence if
there will be good reasons to do so. Also, in the case of Omari Ahmed .V. R175 the
court held that, ‘there must be some evidence connecting an accused with theft other than
the testimony of an expert who is uncertain’. The court further held that, ‘the trial court’s
findings as to credibility of witness is usually binding on an appeal court unless there are
circumstances on an appeal court on the record which call for a reassessment of their
credibility.’ From this holding it appears that, the trial court does the assessment of
credibility of expert evidence, and such assessment binds the court of appeal.

(c)
In the last scenario, the following issue has been raised, that is:
-Whether the confession made before the district magistrate sitting in the
Resident magistrate is admissible.
A confession is an acknowledgement before a proper authority of the truth of the
statement or charge. Confession is also defined under the Act as provided under section 3
(1) of the Act. Black’s Law Dictionary defines to mean an acknowledgement in express
words, by the accused in a criminal case of the truth of the main fact charged or of some

173
(1980) TLR 38
174
(1953) 26 K.L.R. 41
175
[1983] TLR 52
essential part of it. There are two types of confession; that is formal and informal
confession. A formal or judicial confession is a plea of guilty or some other direct
manifestation of guilt in court or in a judicial proceeding. Informal or extra judicial
confession is a confession made out of court, and not as part of a judicial examination or
investigation. Such a confession must be corroborated by some other proof of the corpus
delicti, (body of the crime) or else it is insufficient to warrant a conviction.

Confession can be freely and voluntarily made before a police officer, justice of peace
and Magistrate as provided under section 28 of the Act. The confession, which is freely
and voluntarily, made before the Magistrate can be or may be proved against that person.

The term ‘magistrate’ is defined under section 4 of Interpretation of Laws Act, No. 4 of
1996 to mean a resident magistrate, a district magistrate and a primary court magistrate
and any other description of magistrate provided for by or under the Magistrates Court
Act. Black’s Law Dictionary defines magistrate to mean a judicial officer with strictly
limited jurisdiction and authority often on the local level and often restricted to criminal
cases. The Magistrates’ Court’s Act defines a primary court magistrate, a district
magistrate and a resident magistrate.

The term ‘justice’ of the peace is not defined under the Magistrates’ Court’s Act, No 2 of
1984 (MCA). However, Part Vl of the MCA provides for appointment and powers of
Justice of the peace.

Having defined the term confession, briefly observed different types of confession and to
whom confession can be made, also defined the terms magistrate and justice of the peace,
we can determine the issue raised above that in law a confession made to a district
magistrate sitting in a Resident Magistrates’ Court is admissible. Therefore the objection
by the defense counsel can not stand since it is not in line with the law as provided under
section 28 of Act, that a confession can be freely and voluntarily made before a
magistrate, justice of the peace or a police officer. A district magistrate sitting in the
Resident magistrate court does not override his/her magisterial powers. It is only a duty
station.

A confession can be invalid if it is made under threat, promise or any other prejudice as
provided under sections 27 (3), 29 and 32 of the Act.

QUESTION: 7

All witnesses, in order to give testimony must be competent, but not all
competent witnesses are compellable. Discuss this statement with particular
reference to competence and compellability of spouses both in civil and
criminal trial.
 OUTLINE
1.0 INTRODUCTION.
2.0 COMPETENCE AND COMPELLABILITY OF SPOUSES IN CRIMINAL
TRIAL.
The general rule
Exceptions to the general rule
Assault on spouses.
Assault on children.
Sexual offences against children.
2.1 COMPETENCE AND COMPELLABILITY OF A SPOUSE OF CO-
ACCUSED.
2.2 COMPETENCE AND COMPELLABILITY OF EX-SPOUSES
2.3 POSITION OF THE SPOUSE IN DEFENCE CASE
3.0 COMPETENCE AND COMPELLABILITY OF SPOUSE IN CIVIL
PROCEEDINGS.

4.0 CONCLUSION

5.0 BIBLIOGRAPHY
1.0 INTRODUCTION.

Generally, all persons shall be competent to testify unless the court finds that they cannot
due to tender age, extreme old age, disease, insanity or any other similar cause, who are
unable to understand the nature of questions put before them or cannot give rational
answers to those questions. Witnesses are largely divided into two; those who are not
permitted to testify, and those who are compelled to do so.

A competent witness is a witness whose evidence or testimony is admissible and a

compellable witness is a witness who is competent but unwilling to testify or give
evidence. Such a compellable witness is compelled (forced) to testify since it is to the
interest of the public that justice should be obtained.

A spouse, according to the Tanzania Evidence Act, 1967, (hereinafter to referred to as the
TEA), is a wife or a husband of a marriage which is valid according to the statutory or
customary laws of the United Republic.

2.0 COMPETENCE AND COMPELLABILITY OF SPOUSES IN CRIMINAL

TRIAL.
The general rule
The general rule in respect of the competency and compellability of the spouses in
criminal trials is stated under section 130(1) of the Tanzania Evidence Act which reads,

“Where a person charged with an offence is the husband or the wife of another
person that other person shall be a competent but not a compellable witness on
behalf of the prosecution…”
That is to say the husband and the wife are competent witnesses against each other but
they are not compellable witnesses to testify in the favour of the prosecution side.
This rule was also held in the case of R V. SIWAJIBU KIBAYA176 in which the court
held that where the line between a valid marriage and concubinage is obscure and where
cohabitation takes on the typical features of a durable establishment a spouse of such
cohabitation is not under duty to testify for prosecution.

But in connection to the above discussion, section 130(3) of the TEA does not close the
room for the spouse who desire to testify against the other spouse or in favour of the
prosecution side. The condition precedent to the admission of such evidence is that the
spouse must be made aware of his or her rights that he or she is not forced to testify. But
if he or she is willing to do so then the evidence of such person shall not be admissible
unless the court has recorded in the proceedings that section 130(3) of the TEA has been
complied with.

The need to comply with section 130(3) of the TEA by putting it into records of the
proceedings was also seen in the case of AKECH V.R177. The facts of the case are that
the appellant was charged and convicted of arson contrary to section 319(a) of the Penal
Code. At the appellant’s trial, his wife was called as a witness for the prosecution. Before
she gave her evidence the trial magistrate asked the appellant whether he had any
objections to his wife giving evidence against him and the appellant said he had none.
The wife then gave her testimony. In that effect the High Court held that this was not in
accordance with the provisions of section 130(3) of the TEA. That sub-section requires
the court to address not the appellant but his wife and to inform her that she was under no
obligation to testify against her husband but she may give evidence against him if she
chooses to do so.

In CHARLES IZENGO V. REPUBLIC178 the judge held the evidence given by the
appellant’s wife to be inadmissible since it was not in conformity with the provisions of
section 130(3) of the TEA.

It was Held that;

“The trial magistrate’s record shows that the wife of the appellant… was not told
that she was competent but not compellable witness, and as such in conformity
with the provisions of section 130(3) of the Evidence Act, 1967, I hold the
evidence inadmissible.”
The above principle is reiterated in the case of KOTIA MAGOMBA V. R179 whereby
the court held that, where a spouse is a witness for the prosecution, the court must ensure
that the spouse is made aware of his rights before admitting his or her evidence, and that
spouse evidence is inadmissible unless the court has recorded compliance with section
130(3) of the TEA.

176
(1989) T.L.R 12
177
(1971) H.C.D 384
178
(1982) T.L.R. 237
179
(1974) L.R.T 35
The above cited section deals with criminal proceedings and the rationale behind the
section is that if communications between the spouses are disclosed by either of them it
may disturb the peace of the family and it will promote quarrel between the spouses.

The policy of protection of the spouses is thus stated by an American judge in the
case of STILLMAN V. STILLMAN180 of which the court observed that communication
and transactions between husband and wife were early recognised as privilege and neither
could be compelled to disclose what took place between them and neither is a competent
witness to testify to such transactions or communication of a confidential nature. From
experience it can be found that far less evil would result from the exclusion of such
testimony than from its admission. It may in individual work hardship, but the destruction
of confidence between a husband and a wife would cause misery and affect the marriage
relation. Those living in the marriage relation should not be compelled or allowed to
betray the mutual trust and confidence which such relation implies circumstances under
which the spouse are competent and compellable to testify against each other in the
criminal proceedings.

Exceptions to the general rule

Despite the above the general rule as to the competence and compellability of spouses as
provided for under section 130(3) of the TEA, there are circumstances where the spouses
become competent and compellable witnesses to testify against each other or in the
favour of the prosecution side.

Section 130(2) of the TEA provides that:

“Any wife or husband, whether or not of a monogamous marriage, shall be
competent and compellable witness for the prosecution-
(a) in any case where the person charged is charged with an offence under
Chapter XV of the Penal Code or under the Law of Marriage Act, 1971;
(b) in any case where the person charged is charged in respect of an act or
omission affecting the person or property of the wife or husband, or any of
the wives of a polygamous marriage, of that person or the children of
either or any of them”
This section is to the effect that the spouse are competent and compellable witnesses in
the favour of the prosecution side in suits between married persons or in the proceedings
in which one married person is prosecuted for any crimes committed against the other. If
a husband is being prosecuted for an offence which he has committed against his wife,
the wife becomes competent and compellable witness to testify on behalf of the
prosecution.

The one clear exception to the common law rule related to criminal charges involving
personal violence by the accused against his or her spouse was established in LORD
ANDLEY’S case181 in which a wife was held competent and compellable witness to

180
115 Misc. c. 106 N.Y.S
181
(1631) 3 State Tr. 401
testify against her husband who was charged as an accessor to her rape and the decision
was based on necessity.

However, in other jurisdictions the spouses become competent and compellable witnesses
to testify on behalf of the prosecution side in three situations. These are;-

- Offences involving assault or injury to the spouse,

- Offences of similar character against children
- Sexual offences against children

Assault on spouses
At common law spouses are competent and compellable witness to testify against each
other in cases of violence against them. This position was well stated in the case of R V.
LAPWORTH182 the House of Lords held that, where one spouse has used violence
against that other as to be charged with the other victim, a spouse is competent and
compellable witness to give testimony on behalf of the prosecution side.

Assault on children
The next category of competence and compellability of a spouse under the common law
is on the offence involving assault, injury or threat of injury to children. It is felt under
the common law that the basic reason for enacting compellability in such cases is to try to
secure the availability of some evidence where otherwise there might be none and some
cases, for example cruelty to children too young to testify, might otherwise have to go
unpunished. The common law has, it is submitted rightly, adopted the more expensive
policy of protecting children generally.

Sexual offences against children.

Again under the common law the accused’s wife is competent and compellable to testify
against her husband if he commits sexual offences to a child of household.
It is interesting to not that the above policy has been adopted in some Australian states
and it is recommended by the Australian law Reform Commission, according to which
the spouse is prima facie compellable for the prosecution in matters relating to the sexual
offences against the children.

2.1 COMPETENCE AND COMPELLABILITY OF A SPOUSE OF CO-

ACCUSED.
It should be noted that the TEA is silent on the issue of competence and compellability of
a spouse of co-accused. But this position is well founded for under the common law. At
common law it is stated in R V. BOAL183 that one spouse is a competent witness for the
other but not compellable in cases where both spouses are being tried jointly. The rule of
common law provides that a spouse is always a competent witness for the other’s co-
accused but compellable for such a person only in circumstances in which the spouse

182
(1931) KB 117
183
(1965) 1 QB 402
would have been compellable for the prosecution against the other spouse. This is the
trite principle in R V WOOLGAR184.

2.2 COMPETENCE AND COMPELLABILITY OF EX-SPOUSES

Again the TEA is silent on the issue of competence and compellability of ex-spouses in
giving his or her testimony against the other. Section 130(1) of the TEA states that where
a person charged with an offence is the husband or the wife of another person, the other
person shall be a competent and compellable witness on behalf of the prosecution …
therefore the wording of the said section does emphasize on subsistence of the marriage
and it does not state on broken down of the marriage hence makes the law to be silent on
the issue of ex-spouses and that weight of their evidence.

However, the issue of competence and compellability of ex-spouses is provided for under
the common law position. At common law ex-spouse are competent and compellable
witnesses to testify on behalf of the prosecution side. In MOSS V. MOSS185 the court
held that in any proceeding, a person who has been but is no longer married to the
accused shall be competent and compellable to give evidence as if that person and the
accused had never been married.

2.3 POSITION OF THE SPOUSE IN DEFENCE CASE.

Spouse is a competent witness for the defence if the other spouse is charged jointly or
solely with other accused persons but this is only on the application of the spouse
charged. This is well provided for under section 130(4) of the TEA and also in the case of
MTOAKODI V. REPUBLIC186. In this case it was held that the appellant suffered an
injustice in being deprived of the right to call his wife as the assessors in the Primary
Court had based their opinion as to the appellant’s guilty, at least in part, on his
neglecting to call his wives as witnesses. Also in literal interpretation section 130(5) of
the TEA is in line with sub-section 4 of the same section since it shows that a spouse
upon the application of the other person becomes competent but not compellable to
testify in the defence. That is for the reason that had to spouse been compellable upon
application made by the other spouse, the court under section 130(5) of the TEA may not
comment upon the failure or refusal to give evidence for other spouse of rather the court
may treat him or her as a refractory witness as provided for under section 199 of the
Criminal Procedure Act, 1985.

3.0 COMPETENCE AND COMPELLABILITY OF SPOUSE IN CIVIL

PROCEEDINGS.
Having looked at the competence and compellability of spouse in criminal trial, we now
turn to the second part of the question which deals with competence and compellability of
spouse in civil proceedings.

184
(1991) Crim. LR 545
185
(1963) 2 QB 799
186
(1969) E.A 422
In civil proceedings, unlike in criminal proceedings the spouses are automatically
competent and compellable to testify against each other. The TEA enshrines within it the
provision of the law to compel the spouse to testify against each other. This is as per
section 131 of the TEA which states that;
“In all civil proceedings the parties to the suit, and the husband and wife or wives
of any party to the suit, shall be competent and compellable witnesses.”

4.0 CONCLUSION

In conclusion, we agree that the spouses are competent witnesses in both civil and
criminal matters. But when it comes to compellability, they are only compellable in civil
matters whereas in criminal matters the general rule is that they are not compellable but
this is subject to some exceptions as are discussed hereinabove.

ALTERNATIVE ANSWER

1.0 INTRODUCTION
Witness plays a vital role in the administration of civil and criminal justice. It is an
established principle that a person cannot give evidence in court as a witness unless he or
she is competent to testify. Incompetent people are not allowed to testify in court. In
some circumstances a competent person may be compelled to give evidence but in other
circumstances the same cannot be possible.

The competency of a person to testify as a witness is a condition precedent to the

administration to him of an oath or affirmation and is a question distinct from that of his
credibility when he has sworn has affirmed. In determining the question of competency,
the court has to ascertain in the best way it can, wheather from the extent of his
intellectual capacity and understanding, he is able to give a rational and intelligent
account of what he has seen or heard or done on a particular occasion.187

1.1 UNDERSTANDING OF THE CONCEPTS.

Witness; According to Black’s Law Dictionary the term witness in its strict legal sense
means one who gives evidence in a cause before court and in its general sense includes
all persons from whose lips testimony is extracted to be used in any judicial proceedings
and so includes deponent and affiants as well as persons delivering oral testimony before
a court or a jury188. The term witness here includes also parties to proceedings.
Competence of witness; Competence is a classic or minimal ability to do something,
qualification especially to testify189. A witness is competent if he may lawfully be called
to give evidence. This means those who can testify. Such person is expected to be

187
Ratanlal. R and K. Dhirajlal, The Law of Evidence 21st Edn.Wadhwa and Company Nagpur.Delhi p
675.See also S.127 of The Tanzania Evidence Act, 1967.
188
Black’s Law Dictionary p.1633
189
Ibid p 302
conversant with the facts of the case. More precisely a witness is competent to give
evidence if his testimony is admissible.
The competency of a person to testify is a condition precedent to the taking of a
witnesses’ testimony. Competency being a condition precedent to the administration of
an oath or affirmation, a determination of competency must be made before the oath or
affirmation is administered.
The responsibility for determining competency lies with the court. Where the court for
some reasons, suspects that a potential witness may not be able to understand questions
posed and give rational answers to the same it should ascertain whether or not the witness
is in fact competent.
Compellability of witness; means capable or subject to being compelled especially to
testify190.A witness is compellable if being competent, he can lawfully be compelled to
give evidence. In other words a witness is compellable if he can be obliged to go into a
witness box and to answer questions put to him or else sanctioned for contempt of court if
he refuses to do so.191
Spouse; means husband or wife by lawful marriage. Section 4 of the Tanzania Evidence
Act here in referred as T.E.A describe spouse as husband or wife of a marriage which is
valid according to statutory or customary laws of the United Republic.
Phrase ‘’During marriage’’ with regard to privileged communication under S.130 of
T.E.A;If a man and a woman are not legally married as defined under S. 4 the one may be
compelled to disclose communications and is competent witness under the general rules
of competency since the privilege of non disclosure extends only to the parties in a valid
marriage.
If there is a valid marriage any communications between the parties are privileged if
made during the marriage, even though the marriage has been dissolved before the former
spouse is called upon to disclose a communication.
A communication made between the parties to the marriage before marriage took place is
not privileged, and a witness-spouse may be compelled to to disclose it even though there
is a valid marriage subsisting at the time of trial192.

2.0 MAIN BODY

The question requires discussion on the quotation ‘’all witnesses in order to give
evidence or testimony must be competent but not all competent witness are compellable’’
with particular reference to spouse in both civil and criminal cases. This work after
giving understanding of concepts in the introductory part it will discuss the categories of
witnesses, competence and compellability of spouse in civil cases, competence and non
compellability of spouse in criminal case and exceptions thereof, effects of non
compliance with S.130 (4) of T.E.A, position of other jurisdictions concerning
competency and compellability of spouse, criticism and recommendations.

2.1 CATEGORIES OF WITNESSES.

190
Ibid p 300
191
Note;questions must be relevant and with connection to the matter in issue.
192
KENYA INSTITUTE OF ADMINSTRTION, EVIDENCE FOR MAGISTRATES,PART I.Pp 106-
107
Witnesses generally can be categorized into three groups, first witness who are competent
and compellable to testify secondly witnesses who are competent but not compellable and
thirdly witnesses who are competent but for some reasons or another court will not allow
them to testify. This brings three important notions used in the law relating to witness
namely competency, compellability and privilege.

A witness is competent if he may lawfully be called to give evidence, such a witness is

expected to be conversant with the facts of the case. The competency of a person to
testify is a condition precedent to the taking of a witnesses’testimony. Competency being
a condition precedent to the administration of an oath or affirmation, a determination of
competency must be made before the oath or affirmation is administered. The
responsibility of determining competency lies with the court.

A witness is compellable if being competent he can lawfully be compelled to give

evidence. However other witnesses though competent may not be compelled to testify on
the ground of privilege.T.E.A has provided certain privileges to certain classes of
witnesses. These classes have been laid down under S.130 to S.140 it includes judges and
magistrates, communication during marriage evidence as to the affairs of the state etc.The
principle of ‘privilege of witness’ is based on the ground of convenience and public
policy.

The last categories of witnesses are those who are competent but incapable of giving
evidence for one reason or another. These are incompetent witnesses. Their
Incompetence is subject to consideration of the court as provided for under S.127(1) of
T.E.A,these include people of tender years, people of extreme old age people with
disease whether of body or mind or any other similar cause.

2.2 COMPEENCE AND COMPELLABILITY OF SPOUSE

In civil cases.
In civil proceedings parties to the suit and the husband or wife or wives of any party to
the suit, shall be competent and compellable witnesses as provided under S.131 of T.E.A,
that,
In all civil proceedings the parties to the suit and the husband and wife or wives
Of any party to the suit, shall be competent and compellable witness.
Husbands and wives are competent and compellable witness for or against each other in
civil suit therefore their testimony is to be scrutinised in the same manner as that of any
other witness193.
S.130 of T.E.A can be construed in the following manner; Evidence against a spouse, if a
wife files a maintenance case or divorce194 she can give evidence against her husband
similarly where a husband files a case for restitution of conjugal rights he can give
evidence against his wife.

193
Ratanlal op.cit p686
194
In the case of SAIDI MOHAMED V. ZENA ALLY[1985] T.L.R respondent petitioned for divorce on
the ground of cruelty, as a general rule a party to suit is competent witness so she testified against her
husband so as to prove allegations she raised against him.
Evidence in favour of a spouse, if a husband files a suit for recovery of money, if his wife
happens to be one of the witnesses of the promissory note, she can give evidence in
favour of her husband.

In criminal cases.
It has been seen that husbands and wives are competent witnesses in all civil proceedings
and in criminal proceedings against an accused, his or her wife or husband is a competent
witness whether for or against, but S.130 (1) of T.E.A brings in a privilege which affects
compellability of such witnesses i.e. spouses. The provision contains a rule of privilege
protecting the disclosure of all communications between persons married to one another,
made during marriage. The provision of the section provides;
Where a person charged with an offence is the husband or wife of another
That other person shall be a competent but not a compellable witness on
On behalf of the prosecution
This position of law was reiterated in the case of KOTIA MAGOMBA v R195 where it
was held among other things that a spouse is a competent but not compellable witness on
behalf of the prosecution.

Also in the case of MATEI JOSEPH v R196 the appellant was convicted of murder and
sentenced to death. At his trial his wife was compelled to testify against him as a key
witness. He appealed against conviction and sentence. It was held that the evidence of a
spouse who has been compelled to testify against another spouse in criminal case
contrary to the provision of S.130 of T.E.A is inadmissible and of no effect.

It is important to note that the privilege operating under S. 130(1) of T.E.A refers only to
communications made during the subsistence of the marriage but not communications
made before marriage. This privilege extends to all spouses whether or not the marriage
is monogamous. The rule applies to communications of every nature.197The rule of
privilege applies equally whether or not the witness or his spouse is a party to the
proceedings. It extends to all cases i.e. cases between strangers as well as to suits or
proceedings in which the husband or wife is a party. It also extends to communications
made to spouse and not to those made by spouse. But the privilege is conferred not on the
witness (unless the witness happens to be the spouse who made the communication), but
on the spouse who made the communication; the witness cannot therefore waive it at his
or her will nor the court permit disclosure even if he or she is willing to do it. It is only
the spouse who made the communication who can consent to give up the privilege. 198

The privilege said to apply only valid marriage that being the case it of importance to
look on other relationships, which may not be considered as valid marriage particularly
where concunbinage is involved.

195
[1974]L.R.T no. 35
196
[1993] T.L.R no 152
197
Sarkar M.C,Sarkar on Evidence, Wadhwa and Co.Delhi p.1982
198
Sarkar ibid p.1982
In the case of R v SIWAJIBU KIBAYA199 a couple lived together in concubinage for
three years, begot two children and entertained the desire and hope of going through a
ceremony of marriage in the near future. The court considered whether a ‘‘spouse’’ under
such circumstances in Tanzania is under duty to testify against the other ‘’spouse’’. The
question was whether section 130(1) of T.E.A applicable to couple who have lived
together in concubinage for space of three years. The Judge said we got the rule from
England and it only applies where there is valid marriage, however, it is appropriate that
we approach the matter against the backdrop of the real Tanzania i.e. according to the
circumstances prevailing in this country, cohabitation is a notorious affair, where the line
between the valid marriage and concubinage is obscure and where the cohabitation takes
on a typical features of a durable establishment, a spouse of such cohabitation is not
under duty to testify for the prosecution.

The protection conferred by the law under S.130 (1) of T.E.A continues even after the
marriage has been dissolved by death or divorce. The bar to the admissibility in evidence
of communications made during marriage attaches at the time when the communication is
made and its admissibility will be adjudged in the light of the status at that date and not
the status at the date when the evidence is sought to be given in Court.200

Also where a person whom the court has reason to believe is the husband or wife or in
polygamous marriage, one of the wives of a person charged with an offence is called a
witness for the prosecution, the court shall ensure that person is made aware of his or her
right of not being a compellable witness on behalf of the prosecution before giving
evidence as provided under S.130 (3) of T.E.A.
The evidence of such person shall not be admissible unless the court has recorded that the
provisions of S.130(3) has been complied with.

In the case of AGUSTINE KENTE v R201 the wife was not informed of her rights under
S.130(1). The court held among other things that where the court has reason to believe
that the prosecution witness is a wife or husband of the accused unless case falls within
the statutorily defined exceptions, the said court has before such witness gives evidence
to educate him or her on the effect of S.130(1) of T.E.A and let seen to have so done by
recording in the record that the same has been complied with before the witness begins
giving evidence on the side of prosecution. The same had been held earlier in the case of
KOTIA MAGOMBA v R202 that where a spouse is a witness for prosecution the court
must ensure that the spouse is made aware of this right before admitting the his or her
evidence.

On the other hand a wife or husband of a person charged with an offence is a competent
witness for defence at any stage of proceedings, provided that he or she is called as
witness on the application of the accused spouse as provided S.130 (4) of T.E.A

199
[1989] T.L.R no 12
200
Ratanlal op.cit 351
201
[1982]T.L.R no 122
202
[1974] L.R.T no 35
In the case of MTOAKODI v R203 the appellant in the trial court was not permitted to
call his wife as defence witness. It was held that the appellant suffered injustice in being
deprived of the right to call his wife as the assessors in the primary court based their
opinion as to the appellant’s guilt at least in part, on his neglecting to call his wife as
witness. Appeal allowed.

The provision contains nothing concerning the compellability of a spouse as a witness for
defence but upon application by the accused, a spouse fails or refuses to give evidence
the court and the prosecution may comment upon such failure or refusal to give evidence
for the other spouse as provided under S.130 (5) of T.E.A.
In the case of R v MWANAHUSI204 it was held that a husband or wife upon being called
as a witness for the defence fails or refuses to give evidence as required, the prosecution
or the court, may charge him or her for contempt of court.

2.3 EXCEPTIONS TO THE GENERAL RULE; SPOUSE IS NOT

COMPELLABLE WITNESS ON BEHALF OF THE PROSECUTION IN
CRIMINAL CASES.

A wife or husband be it monogamous or polygamous marriage shall be a competent and

compellable witness for the prosecution when in any case the person charged with an
offence under Chapter XV of the Penal Code or under the Law of Marriage Act, 1971 as
provided under S.130 (2)(a) of T.E.A.

Also in any case where the person charged is charged in respect of an act or omission
affecting the person or property of the wife or husband, or any of the wives of a
polygamous marriage, of that person or the children of either of them as provided under
S.130 (2),(b) of T.E.A
In the case of R v KIHANDIKA205 the accused who was married to two wives was
charged with murder of one of them. The other wife gave evidence for the prosecution. It
was held on the charge affecting the person of one wife another wife is a competent and
compellable witness for the prosecution against her husband. Onyiuke J. was of the view
that in the society that recognizes polygamous marriage the expression ‘’the person or
property of the wife ‘’includes co-wife. Where a husband commits an offence, e.g assault
against a member of his family such as one of his wives or any of their children I can see
n reason in principle for not making any of his wives who witnessed the incident a
compellable witness.

2.4 POSITION OF THE RULE IN OTHER JURISDICTIONS

Under English law a spouse is a competent witness in the prosecution but not
compellable. He or she may be compellable to testify in prosecution side if the offence
involves assault, injury or threat of injury to the wife or husband of the accused or person
who was at the material time of the age of 16 or the offence charged is sexual offence
alleged to have been committed in respect of the other person who was at the material

203
[1969]E.A no 422
204
[1975] L.R.T no 19
205
[1974] E.A no 372
time under the age of 16 or the offence charged consist of attempting or conspiring to
commit or of aiding, abetting,counselling,procuring or inciting the commission of the
offence of sexual offence or assault or injury.

In Australia a spouse is prima-facie compellable witness for the prosecution in all cases
but the court is given discretion to excuse a spouse from testifying according to certain
guidelines as set out in the statute206.

2.5 RATIONALE FOR THE RULE THAT SPOUSE IS COMPETENT BUT NOT
COMPELLABLE WITNESS
Sarkar on Evidence says, this enactment rests on the obvious ground that admission of
such testimony would have a powerful tendency to disturb the peace of families, to
promote domestic broils (quarrel, noisy, argument) and to weaken if not destroy that
feelings of mutual confidence, which is most endearing solace of married life .It is a
public policy of each state to protect marriages.

2.6 DISTINCTION BETWEEN S.130 AND 131 OF T.E.A

The object and purpose of S.130 particularly subsection (1) subject to its exceptions
under subsection (2) is to give protection to the communications made during marriage
and thus provides domestic peace and conjugal confidence between the spouses. On the
other hand S.131 is of the effect that spouse is competent and compellable witness for or
against the other spouse in civil proceedings.

2.7 CRITICISMS AND RECOMMENDATIONS

In criminal proceedings the spouse of an accused person is competent witness for defence
at any stage of proceedings upon application by the accused person as provided for under
S.130 (4) of T.E.A. The provisions of this section does not provide for compellability of
such spouse but subsection (5) of the same provision provides that if such spouse upon
being called fails or refuses to give evidence as required the prosecution as well as the
court may comment upon such failure. In our view such failure shall not be made the
subject of any comment as long as the law itself does not provide for compellability of
such person but rather competency only.

Also the rule that spouse is competent but not compellable witness on behalf of the
prosecution said to be applicable when there is valid marriage does not favour much the
circumstances of inhabitants of this country. For example it was observed by Mapigano J.
in the case of R v SIWAJIBU KIBAYA (supra) that cohabitation is notorious affair in
Tanzania that the line between a valid marriage and concubinage is sometimes obscure
and that often such cohabitation takes on the typical features of a durable establishment.
We think it will be safe for the law to provide for such circumstances of the lives of
inhabitants of this country rather than to base solely on judicial decisions which though
good law may be subject to overruling by the Higher courts.

206
Australian Law Reform Commission Report No 38’Evidence’Para 82 as stated in the case of
AUSTRLIAN FEDERAL POLICE COMR v Mc MILLAN [1987] 70 ALR 203
3.0 CONCLUSION
It is true that all witnesses are competent but not all witnesses are compellable taking into
account the privileges given by the law to certain classes of witnesses such as spouses,
judges, magistrates and advocates, etc.With particular reference to spouses, they are
competent for and against each other in all civil proceedings as provided for under S.131
of T.E.A while in criminal proceedings spouse is competent but not compellable witness
on behalf of the prosecution as provided for under S.130(1) of T.E.A.. However, this
general rule is subject to statutory exceptions and also a spouse of a person charged is a
competent witness at any stage of proceedings for defence upon application of the person
charged.

QUESTION: 8
“…Protracted and irrelevant cross-examination not only adds to the cost of
litigation but is a waste of public time”

In the light of the above statement elucidate the law on the examination of witnesses.

TABLE OF CONTENTS
1.1: INTRODUCTION
- What is a witness
- What is examination of witnesses
- Types of examination of witnesses

2.0: MAIN BODY

2.1: What is cross-examination
2.2: How cross-examination
2.3: Limitations of cross-examination
2.4.1: Questions which allowed under cross-examination
2.4.1: The production of document in cross-examination
2.5: Power of the court in cross-examination
2.6: Effects of protracted and irrelevant questions in cross-examination
2.7: The validity of statement

3.0: CONCLUSION

4.0: BIBLIOGRAPHY
INTRODUCTION
Any trial in court is intended to get the truth of controversial facts and give rights to
the parties. In the adversarial system of justice, which Tanzania is using the court
stands as an interested umpire and the parties are required to convince the court of the
truthfulness of the facts they allege. Law determines the standards for such proof. In
most cases if not all a party in a Civil or criminal proceeding would require the
assistance of other people conversant with the material facts in convincing the court
on the truth of his/her version of the fact. It is under these circumstances that
witnesses are required. Witness is a person who appears in court to give evidence,
there are witness for defense and witness for the prosecution.

When a witness is brought to the court he/she is expected to give some information
that would assist the court to reach the decision of the case. This is done through
questioning witnesses. This process of questioning witness is known as examination
of witnesses. Examination of witnesses ordinarily done in three stages namely
examination in chief, cross-examination and re-examination. Only in exceptional
circumstances that witnesses are re-examined in chief and re-cross examined, other
author adds fourth stage known as court examination. These stages are very
important in gathering information from witnesses and show these stages are used to
get information in civil and criminal proceedings.

Civil and criminal proceedings adopted the question of calling witnesses from both
sides the order in which witnesses are produced and examined should be regulated by
the law and practice for the time being relating to civil proceedings, like Civil
Procedural Code (CPC) and criminal proceedings as criminal procedure Act
respectively and in the absence of any such laws, by the discretion of the court.

Criminal Procedure Act, 1985 S. 290 provide that the witness called for the
prosecution shall be subject to cross examination by the accused person or his
advocate and to re-examination by the advocate for prosecution. While OX of the
Civil procedure code provide examination of parties by the court for example rule 2 of
the same order provide that a person is liable to answer questions relatively to the suit
by whom such party or his examined orally by the court. Also OXVIII of the same
Code provide examination of witnesses rule 4 is provides witnesses to be examined in
open court also rule 6 of the same order examined in open court also and answer to be
taken down.

Therefore both nominal procedure Act and civil procedure code provides examination
of witness.

S.145 (1) of Tanzania Evidence Act refers as T.E.A states when either party proposes
to give evidence of any fact, the court may ask the party proposing to give the
evidence in what manner that fact, if proved would be relevant.

Therefore examination of witness behaves as a method in which the court itself

becomes sober to that evidences advanced by the witnesses are correct so as to assist
it to arrive to the decision.

71
The purpose of examination of witnesses is to exculpate or to find the truth. The
order in which witnesses are examined will be relevant provisions as it provides by s.
144 of T.E.A

Section 146 of T.E.A provides for the three stages in examination of witnesses, as
explained herein below:

1.1 Examination in chief

This is the first stage whereby examination of a witness is done by the party who calls
him. The examination must be confined to the relevant fact as per section 147 (2) of
T.EA. The object of examination in chief is to allow the witness to give all materials
facts, which helps to establish the case of the party that called witness. The witness
should be asked questions whose answers the witness knows which answer should be
valuable in the case.

1.2 Cross examination

This is done soon after examination- in- chief the adverse party gets the opportunity to
examine the witness. This will be discussed in details under part 2.1 (main body).

1.3 Re- examination

When cross-examination is over, the party who called may re-examine him again.
Unlike cross examination it has some limits, it is primarily intended to cover pit holes
or inconsistence during cross examination, therefore witness get opportunity to
reconcile the discrepancies if any. To remove any ambiguity in the deposition or
suspicion case on the evidence by cross-examination.

1.4 Court examination

In Tanzania we have adversarial system of procedure. This system is not fair because
the parties are not equally represented. So it is on the basis of these circumstances
that the court is “not” expected to fit like a referee of a football match. The court
must interfere in order to search for the truth at any time during examination in chief,
cross-examination, and re-examination. It may also order a certain witnesses to be
called if believes that such witnesses will be of importance in reaching decision.

2.1 MAIN BODY

Because the general knowledge of examination of witnesses has been given in the part
of introduction above. This part will concentrate on the statement given that:
“….Protracted and irrelevant cross-examination not only adds to the cost of

litigation but is a waste of public time”

This statement was given by Lord Chancellor, in an appeal in the House of Lord, in
the case of Viscount Sankees,L.C, in MECHANICAL ETC. CO. LTD V
AUSTINS207

207
(1936) A.C 346 at P. 359

72
The literal meaning of this statement is that questions in cross-examination which are
irrelevant that are not in fact in issue or in the scope of examination-in- chief adds
cost and waste of public time. In court especially during cross-examiner counsel or
advocate have discretion to ask different questions to the witness but sometime
advocate or cross-examiner may abuse this privilege using much time by protracting
through asking questions which are irrelevant to the scope of the case or cross-
examination or may make a several repetition of questions which may consume time
in cross-examination, length of time in cross-examination. Therefore this abuse in the
matter of cross- examination, which enormously increases the costs of litigation
without any corresponding, benefits to the parties and waste of public time. To
understand well cross examination rules and regulations of it, we have to discuss in
details cross-examination, its technique and limitations.

2.2 What is cross-examination?

Cross-examination is a powerful and valuable weapon for testing the veracity of a
witness, and the accuracy and completeness of his story. Ordinarily cross-
examination follows immediately upon examination in chief unless the court for some
reason postponed it. The essence of cross-examination is that it is the interrogation by
one party, of a witness called by his adversary with the object either to obtain from
such witness, admissions favorable to his cause or to discredit him. Cross-
examination may be compared to the testing the rope, inch-by-inch and strand-by-
strand. If the rope is really strong, it will stand the test; if it is weak it will give way at
one point or another. It follows that cross-examination ought not to be expected to
shake a story which is substantially true. Testing the evidence is therefore the
keynote of cross- examination, and it will be realized that quite apart from assisting
the party who conducts the cross-examination the subjection of evidence to such a test
enables the judge to assess its value and so serve an important public purpose in the
administration of justice.

In general detail, the aim of cross-examination is to destroy the material parts of

evidence given in examination-in- chief, to weaken the evidence given in

examination- in-chief where it cannot be destroyed, to elicit new evidence, helpful to

the part cross-examining, and to undermine the witness (or shake his credit as it is

commonly expressed) by showing that he cannot be trusted to speak the truth, or that

he is deposing (however honestly) to matters of which he has no real knowledge.

Cross-examination does not need to be confined to the evidence raised in the

examination in chief, although it is not restricted in scope it must relate to relevant
matters. Witness, therefore may be cross-examined not only as to the facts of the case
but also of the matter not material to the issue with view to impugn his credibility and
thus shake his whole testimony. The question must be relevant for the purpose of

73
impeaching credit, though not to the issue. However irrelevant it might be to the
matter in issue the question may be asked in cross-examination if the answer to it
tends to affect the witnesses credit. But even in cross-examination under garb of
shaking, credit, grossly irrelevant or vexatious question will not be allowed if they do
not really impeach the credit of witness or do not challenge the evidence given in
examination-in chief to the matter under enquiry. The failure to afford opportunity to
exercise the right to examine is a fatal error.

In the case of ISSA JAKALA V R208 the accused was convicted of cattle theft. At the
trial the magistrate did not give him an opportunity to cross-examine the prosecution
witnesses. On appeal it was held that the failure to extend to the accused the to cross-
examine was a fundamental error and the conviction cannot stand despite the apparent
strength of the prosecution case.

Any matter which is proposed to contradict the evidence in- chief given by witness
must normally be put to him so that he may have an opportunity to explain the
contradiction and failure to do so this may be held to imply acceptance of the
evidence in chief, but is not an inflexible race and it has been held to be unsuitable to
proceedings before lay justices.

In the civil case of BHANDARI V GUATANA209 the court held that the denial of the
right of appellant counsel to cross-examination to the respondent on vital issues
render the trial unsatisfactory, resulting in the appeal being allowed. In additional the
right to cross-examination under s. 146 of T.E.A is mandatory while that under s. 176
of the same Act needs an application to the court and a specific leave of the court to
do so.

All witnesses are liable to be cross-examined except the one who is called for the sole
purpose of producing a document and one who is not examined in chief because he
had been called by mistake. The testimony of a witness is not legal evidence unless it
is subjected to cross-examination. The exercise of this right (cross examination) is
justly regarded as one of the most efficacious tests, which the law has devised for the
discovery of truth.

2.3 How cross-examination done

A skilful cross –examination is the highest attainment of an advocate’s art, its
technique can be acquired only by natural instinct or by long practice. The Act has,
however, laid down some rules of guidance.

Unlike examination – in- chief, cross examination need not be confined to relevant
facts as provided under s. 147 (2) of the T.E.A that, cross-examination need not be
confined to the fact to which the witnesses testifies in his examination – in – chief.
Further it differ from both of them, leading questions are permitted in cross-
examination as per s. 152 of T.E.A, the basis of this rule is that normally a witness is
biased in favour of the party who calls him. Leading questions asked by the adverse
party would, under normal circumstances be a good instrument to get important facts
of the case from the witness. A leading question is one which suggest to the witness

208
(1968)HCD NO.100
209
[1964] E.A 606

74
 the answer which it is desired he should give. But if it merely suggests a subject
without suggest an answer or a specific this it is not leading. Apart from this
discretion of using leading questions s. 160 of T.E.A the court may forbid any
questions, which it regards as indecent or scandalous.

TEA provide discretion to the court to permit a party who calls an opponent as a
witness has no right to cross examine him, however hostile he may be without the
leave of the judge. Whether a witness is a litigant or not. It is a matter of discretion in
the judge whether he shows himself so hostile as to justify his cross examination by
the party calls him.

The rule prohibit a party to put questions to his own witness in the name of cross
examination if a witness on the ground that he is expected to have turned hostile is
permitted by the court to cross-examined by the party who called him, the whole of
the evidence of that witness does not become worthless.

It is open to the court to consider the evidence and there is no objection to a part of
that evidence being made use of in support of prosecution or in support of the
accused, but his evidence is not necessary must be corroborated by other reliable
evidence can sustain conviction.

No cross-examination can be allowed of a witness who is “summoned to produce a

document unless and until he is called as a witness to character to be cross-examined
and re-examined.

2.4 Cross examination’s limitations

In cross examination there are, besides two rules of practice, that the witness must be
cross-examined on all material facts which are disputed. Otherwise the court will take
it that his evidence is not contested. An advocate, in cross- examination, must put to
the witness the case he is going to set up, so far as it lies within the witness’s
knowledge; such cross examination is a necessary preliminary to the calling of
contradiction evidence.

2.4.1 What questions are allowed under cross examination

Not all questions are allowed under cross-examination advocates or any person
engaged in cross-examination must be selective. Before such questions are asked the
person putting them must have reasonable grounds for thinking that the imputation
was well founded. The cross examiner must have reasonable ground to believe that
the imputation made against the witness is well founded S.159 of TEA prohibit asking
question without reasonable ground.

All questions or inquiries which are indecent or scandalous, unless they relate to facts in

issue are to be avoided. This is provided under s. 160 of T.E.A together with s. 161 of

the same Act, prohibit all question which are calculated to insult or annoy or couches

in a needlessly offensive form.

75
The court has the power to forbid any question which is in tended to insult , annoy or
which is couches .

To sum up this part of limitation of cross examination is that questions are not
allowed unless either:
(1) They are relevant to the issue in the case or
(2) Though relating to collateral questions, they tend to impeach the credit
of the witness s. 158 an s. 168 of T.E.A also section 155 of the same
Act show the scope of questions to be asked during cross examination

2.4.2 The use of document in cross examination

A witness may be cross examined as to whether he made a statement contained in a
document without, in the first instance, showing it to him; but the document (or the
material part of it) must be shown to the witness if he denies that he fogged it, and if
evidence is thereafter to be called to contradict him.

Cross-examination on a part of document, it should be noted, may take the whole of it

admissible in evidence. Also witness may be asked whether he wrote or signed a
document without necessarily show it to him, he can not be asked questions as to the
contents of a document (such as what he meant by a certain phrase or why he wrote it)
until the document is properly put in a evidence.

If not that procedure used above, the alternative procedure is to put the document in
the hands of witness without proving it, reading it out or putting it in evidence and
asking him.
“Now after looking at that document do you still adhere to what you said
before?”210

This procedure is useful where the cross-examining counsel does not wish to put the
document in evidence, where it will be difficult to prove it. This point of document in
cross-examined is provided in our evidence law s. 154 of TEA also S.171 provides the
witness may testify to facts mentioned in as such document.

2.5 Power of the court in cross examination

The judge or magistrate may in all cases disallow any question put in cross
examination which may appear to him to be vexations or not relevant to any matter
proper to be required into rules and regulation given. In cross-examination some of
the witnesses at great length and width may repetitions, which drew some courteous
criticism from the judge. Viscount Mangham, in writing case of MECHANICAL
G.I CO.LTD V AUSTIN211 has expressed the opinion that where the volume of
material is considerable, it is the duty of counsel to make a selection of the points,
which are really important. A cross examination about minutiae can go on forever.
The same words was given by another Lord Chancellor, in appeal in the House of
Lords that
“…Protracted and irrelevant cross examination not only adds to the cost of
litigation but is a waste of public time”

210
Munkman, J.H(1951) The Technique of Advocacy, p.58
211
[1935] AC 346 at p.359

76
These great authorities would deny that lengths are sometimes inevitable. In the
average case, however cross examination can and should be kept within reasonable
limits. It is known that cross examination is powerful our valuable weapons for the
purpose of testing veracity accuracy of witnesses and counsel has discretion. But
where examination appears to be unduly protracted and irrelevant the court has power
to control the cross-examination apart from the evidence Act. Court have full power
to prevent any abuse of the rights of cross examination in any manner approp
riate to the circumstances of the case (BANKE V. KANHAIYA, A 1922).

2.6: Effects of protracted and irrelevant questions in cross examination

There are certain practical risks in carrying cross-examination too far.
The case will normally take long time simply because when an advocate or a person

who made cross examination will ask questions which are protracted and irrelevant in

cross examination then all these questions will need answers from that witness. By so

doing the process of cross examination becomes too long as a result there will be a

slow disposal of cases in our courts.

The unnecessary question, this is rather similar matter. When good result has been

obtained, it is always possible that, by a question intended to clinch the matter, the

whole effects may be spoilt. If a cross-examiner has got ninety percent of what he

wants, he should usually stop because further questions may produce an unexpected

explanation which tells against him.

Having protected and irrelevant question in cross-examination may lead to injustice

because witness may give false explanation (before he knows all the facts which will
involve him in contradictions)

2.7: The validity of statement above

It is true that most of advocates or cross examiners in cross examination invite
irrelevant questions or protracted one thus lead to the wastage of public time and add
costs for the parties of the suit. Also give other inconvenience in the suit as shown in
the part 2.5 of this work.

Therefore we are of the view that though cross examiners are free to ask whatever
questions during cross examination they are suppose to adhere to the limitations as
explained in part 2.3 of this work, so as to avoid protracted and irrelevant questions
during cross examination which will help in saving public time and unnecessary cost
of the case where parties to the suit become responsible for that costs.

77
3.0 CONCLUSION
Cross-examination is a powerful and valuable weapon for the purpose of testing the
veracity of a witness and the accuracy and completeness of his story. But this should
not be used arbitrary. There are limitations of cross examination which are given
under the law of evidence over which question should be asked and which one are not
allowed. If this law will be followed properly then it becomes a good method of
testing credibility and truth of the witness in cross examination while will be bad
method of testing witness and get the truth if will not be done as directed by evidence
Act and other laws.

QUESTION NO 9.
During a trial in which you’re a party you are taken by
surprise to learn the following.
(i) Your key witness is proving facts in issue and other
relevant fact, which have a negative impact on your
case contrary to your prior arrangement.
(ii) Your key witness is not desire of telling the truth.

Discuss the cause of action to remedy the situation and the legal
significance of the testimony of your key witness.

OUTLINE.

1.0 INTRODUCTION

2.0 Your key witness is proving fact in issue and other relevant fact which have

negative impact on your case contrary to your prior arrangement. (Unfavourable

Witness)

2.1 Cause of action to remedy the situation.

2.2 Legal significance of an unfavourable witness.

3.0 Your key witness is not desire of telling the truth. (Hostile Witness)

3.1 Cause of action to remedy the situation.

3.2 Legal significance of a hostile witness.

4.0 CONCLUSION.

78
5.0 BIBLIOGRAPHY.

79
1.0 Introduction

Witness is a person who being present personally sees or perceives a

thing, a beholder, spectator or eyewitness. One who testifies to what he
has been seen, heard or otherwise observed. A person whose declaration
under oath or affirmation is rescinding as evidence for any purpose
whether such declaration be made on oral examination or by deposition
or affidavit212.

While a key witness or material witness is a witness whose testimony is

crucial to either the defence or prosecution. Such a witness must be
conversant with fact in issue and other relevant fact.
“Fact” in issue means any fact from which either by itself or in connection with other
facts the existence, non- existence, nature or extent of any right, liability of disability,
asserted or denied in any suit or proceeding, necessarily follows213.

“Relevant fact” a fact is said to be relevant to another when the one is connected with
the other in any of the way referred to in the provision of the Tanzania Evidence Act
relating to the relevancy of facts.

So, it is natural to presume that a party calling a witness on his behalf has reasons for
believing that the witness knows something about the case which is in favour of such
party, for it would be useless and contrary to common sense if a party were to call as
his witness persons who are obviously going to speak against his case. 214

In almost all-criminal trial in subordinate courts, witnesses for the prosecution will
usually have made statements to police, and those statements guide the public
prosecutor in the selection and examination of his witnesses.

212
Blacks Law Dictionary, p 1105
213
Section (3) of the Evidence Act, 1967.
214
Chipeta. B.D, A Magistrate Manual, P. 103

80
But a man being an imperfect creature with many weaknesses is not
always to be relied upon to do that which others expect him to do.
From time to time witnesses do exhibit their human weaknesses. A
witness may come to court unexpectedly gives evidence which is the
very opposite of the statement he had made to police, and he insist
that what he is then telling the court is the truth or the witness
proving fact in issue which have a negative impact on your case
contrary to your prior arrangement. This lies at the root of the
distinction between unfavourable witness and a hostile witness.215

2.0 Unfavourable Witness.

An unfavourable witness is one called by a party to prove a particular fact in issue or
relevant to the issue who fails to prove such fact or proves an opposite fact 216. A
witness is not hostile merely because he gives unfavourable evidence against the party
calling him. A witness may give unfavourable evidence against the party calling him
yet be fair and truthful. Such a witness cannot properly said to be hostile but
unfavourable.

2.1 The Cause of Action to Remedy the Situation.

With a situation where a key witness is proving facts in issue and other
relevant fact, which have a negative impact on the case contrary to the
prior arrangement of the party calling him, in order to remedy such a
situation, that party will apply to the court to call for more witness so as
to contradict such an unfavourable witness.
At common law, a party was allowed to contradict his own witness by calling other
evidence if he was unfavourable, but this did not amount to the modification of the
prohibition against discrediting his witness.217 In the case of EWER V.
AMBROSE218, someone whom the defendant called to prove a partnership proved
the contrary, it was held that the defendant could rely on the testimony of other
witnesses in support of the existence of the partnership. Holroyd J:

“If a witness proves a case against a party calling him, the latter may show the

truth by other witnesses. But it is undoubtedly true, that if a party calls a witness to

prove a fact, he cannot, when he find the witness proves the contrary give general

evidence to show that the witness was not to be believed on his oath, but he may

215
Ibid
216
Tapper, C (1995), Cross and Tapper on Evidence, 8th (Edn), P 310.
217
Tapper C. (1995) Cross & Tapper on Evidence8th Ed P. 311
218
(1825) 3 B &C 746

81
 show by other evidence that he is mistaken as to the fact which he is called to

prove.”

The situation is the same in Tanzania, though the law on evidence is silent on the
matter, this presupposes the application of the common law position as per section 2
(3) of the Judicature and Application of the Laws Act219.

2.2 Legal Significance of Unfavourable Witness.

The legal effect is that, other evidence though may contradict the evidence of such an
unfavourable witness; it cannot be discredited unless he proves hostile220.

3.0 Hostile Witness.

A hostile witness is the one who is ‘unwilling, if called by a party who cannot ask him
leading questions, to tell the truth and the whole truth in answer to a non leading
questions-to tell the truth for the advancement of justice’. 221 In the case of R V.
HAYDEN222 it was stated that, a witness is hostile not merely if he contradicts a
previous statement, but also if he refuses to answer.
On the same stance, a hostile witness is the one who tells lies about what he obviously
knows or who deliberately changes his story and, from his demeanor and manner, is
clearly biased against the party calling him.223

Two conditions have to be shown so as to ascertain whether a witness is hostile or

not. First it has to be shown that there is hostile animus (Intention) and second, it has
to be shown that the witness is not desirous of telling the truth.

3.1 The Cause of Action to Remedy the Situation.

These two conditions can well be identified and proved if the party calling the
witness,
say, the public prosecutor discovers in the course of the witnesses testimony that what
the witness is telling the court is materially inconsistence with his former statement or
part of it. So in order to remedy the situation, the part calling the witness, example,
the public prosecutor, should apply to the court to be permitted to treat the witness as
a hostile witness. A party calling such a witness with the leave of the court may cross-
examine the witness; that is, he may ask the witness questions showing that the
witness is not telling the truth.

General rule is that a party who calls an opponent as a witness has no right to cross
examine him however hostile may be, without leave of the court. Whether a witness is

219
Cap 358 of 2002.
220
Heydon J.D.& Ockelton M. Evidence cases and Materials, 4th Ed. P. 472
221
Heydon. J.D, (1996) Evidence Cases and Materials, 4th Edition, P. 477
222
[1959] VLR 102-103.
223
Chipeta B.D, (1994), A Hand Book For Public Prosecutor,

82
a litigant or not, it is a matter of the discretion of the court whether he shows himself
so hostile as to justify his cross examination by the party calling him.

However the same position is provided under Section 163 of the

Evidence Act, 1967 which state as follows “the court may in its
discretion, permit the person who calls a witness to put any question to
him with might be put in cross examination by the adverse party”.

The credit of a witness may be impeached in the following ways by the adverse party,
or, with the consent of the court, by the party who calls him, by the evidence of
person who testify that they, from their knowledge of the witness, believe him to be
unworthy of credit; or by proof that the witness has received the offer of a corrupt
inducement to give his evidence; or by proof the former statements inconsistent with
any party of his evidence which is liable to be contradicted; or it can be shown that
the prosecution was generally of immoral character224. In the case of R V.
PREFAS225 it was said that hostility could be inferred from previous inconsistence
statements, including those made orally.

Before making the ruling on application, the magistrate or judge will have to be
satisfied that the contents of the former statement and what the witness has told the
court are substantially different, and that by his demeanor and bearing he is a hostile
witness. This is also well provided in the case of JUMANNE ATHMAN MKETO
V. R226 where it was stated that, before a court permit a party to put questions to his
own witness by way of cross examination it should call for the previous statement of
the witness so as to determine whether an application to declare witness hostile has
any factual basis and that the question whether a witness has in fact turned hostile is
to be determined by the court and not by the party.

3.2 The Legal Significance of the Hostile Witness.

As a general rule, when a witness has been treated as a hostile, the evidence of that
witness is hardly worthy of credit. It should also be noted that the earlier statement
which is put in to show that the witness is hostile does not thereby become
substantitive evidence in the trial. Its only purpose is to show that the witness is
hostile. In the Court of Appeal for East Africa in the case of ALOWO V
REPUBLIC227, it was stated that

‘In the first place, the basis of leave to treat a witness as a hostile is that the
conflict between the evidence which the witness is giving and some earlier
statement shows him or her to be unreliable, and this makes his or her evidence
negligible. Secondly, the earlier statement is not evidence at the trial and could not
therefore be relied on’.

224
Section 164 of the Evidence Act, 1967.
225
(1986) 86 Cr App Rep 111, CA.
226
[1977] LRT, No. 63
227
(1972) E.A 324-325.

83
Moreover, where a witness has been declared hostile his or her evidence should be
ignored. In elaborating this point, the court in the case of TEDDY LUCAS V
REPUBLIC228 it was held that, it is a fatal irregularity for the court to treat the
statement of a hostile witness as evidence and rely on to convict. A similar view was
held in the case of MABATI Bin RUADIBA v REPUBLIC229.

According to Kivuyo and Sameja in Simplified Evidence, provides that the evidence
of hostile witness is not to be rejected either in whole or in part. It is not also to be
rejected as it is in favour of the party calling the witness nor is it to be rejected so far
as it is in favour of the opposite party. The whole of the evidence must go to the
courts record. The rule of law is that it is for the court to decide, but it should always
be received with great caution.

However, under the English Law position it was accepted in the case of R V.
GOODWAY that there is now no absolute obligation to disregard such testimony in
England and that the judge has discretion in directing the jury how much may be
accepted.

Furthermore, the position in India provides to the effect that, if a witness on the
ground that he is suspected to have turn hostile is permitted by the court to be cross
examined by the party who called him the whole of the evidence of that witness does
not become worthless. It is open to the court to consider the evidence, and there is no
objection to a party of that evidence being made use of in support of prosecution or in
support of accused230. Where the party calling a witness declared him hostile and
allowed to be cross- examined it was held that he was not necessarily an unrealiable
witness and his evidence, if corroborated by other reliable evidence, can sustain
conviction231.

Another legal significance of a hostile witness is that, can cause the case to be strike
out. Example if it is a criminal case and the key witness for the prosecution turn
hostile the result is that prima facie case will not be established. Then the case will be
thrown away.

4.0 Conclusion.

From the above discussion it has been shown that unfavourable witness is that witness
who proves fact in issue and other relevant fact which have a negative impact on your
case contrary to your prior arrangement. This is because he testifies on real situation
without siding on either party; he made a fair and truthful statement. If the key

228
[1977] LRT No 33.
229
(1938) 5 EACA No 52.
230
GANGDHARAN PILLAI V STATE (1991) TC 447.
231
MEENA GOPALKRISHNA MUDILIYAR V STATE (1993) Cr LJ 3634.

84
witness become unfavourable on the party called him the only solution is to ask leave
of the court to call for other witnesses in order to contradict such unfavourable
witness. The hostile witness is the key witness who is not desire of telling the truth.
So the party called him may ask for the leave of the court to cross-examine him which
is an exception to the general rule that cross examination is done by the adverse party.
Though he testifies with hostile animus the evidence of a hostile witness must be
recorded.
QUESTION

“Burden and standard of proof of evidence required to satisfy it, are matters of
significance in any dispute and vary according to the nature of the dispute.”

Critically discuss
OUTLINE:

1.0 INTRODUCTION:

1.1 Meaning of burden of proof

1.2 Meaning of standard of proof

2.0 MAIN BODY

2.1 The Concept of Burden of Proof

2.2 Burden of proof in criminal and in civil cases

2.2.1 In criminal maters

2.2.2 In civil matters

2.3 The standard of proof required in criminal and in civil matters

2.4 Significance of the burden and standard of proof

2.5 The variation of the two concepts depending on the nature of dispute

3.0CONCLUSION

85
1.0 INTRODUCTION.

When a matter (case or suit) is taken to a court or tribunal it is assumed that the
person taking the matter to such a tribunal has evidence enough to prove the matter
before it. This obligation imposed by law is termed a burden of proof. The term
originates from a Latin maxim “onus probandi” and means the obligation to prove
allegation which are presented in a legal action.

According to F Y V Chandrachund and V R Manohar232; the term burden of proof

means sometimes that a party is required to prove an allegation before judgement can
be given in his favour; it also means on a contested issue one of the two contending
parties has to introduce evidence.

The Encarta encyclopaedia the expression burden of Proof, in law is defined as the
responsibility for proving a disputed charge or allegation. The same encyclopaedia
proceeded by adding that in criminal trials, the prosecution has the heavy burden of
proving guilt beyond a reasonable doubt. In civil trials, the burden on the plaintiff is
less rigorous.233

The aspect of burden of proof under the Evidence Act is covered by section 110
which states that whoever desires any court to give a judgement as to any legal right
or liability dependent on the existence of facts which he asserts must prove that those
facts exist. It is further given by the act that when a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that person 234.

It should be borne in mind that the aspect of burden of proof has to go hand in hand
with that of standard of proof. That though the law has imposed obligation to the party
who asserts the existence of a fact there are some standards which have been set
depending on the nature of case at hand to be reached before a party can be said to
discharge the duty/ burden.

Under the evidence law section 3 (2) provides for the standard of proof for both
criminal and civil matters that in criminal matters, except where any statute or other
law provides otherwise, the court is satisfied by the prosecution beyond reasonable
doubt that the fact exists and in civil matters, including matrimonial causes and
matters, its existence is established by a preponderance of probability.

On the premise of the statement of the question it follows therefore that both in the
burden and standard of proof there are certain requirements which have to be met and
these differ depending on the nature of the matter in dispute.

232
Y V Chandrachund and Manohar , V R (2004), Ratanlal and Dhirajlal The law of Evidence, 21st
edn page 506
233
Microsoft ® Encarta ® Reference Library 2005. © 1993-2004 Microsoft Corporation.
234
Section 110(2) of the Eviden;’ Act.

86
2.0 MAIN BODY

2.1 The Concept of Burden of Proof

Having seen the definition of the terms the focus to be given emphasis herein below is
on the types of burden and standards of proof thereafter the discussion will base on
the assertion that “Burden and standard of proof of evidence required to satisfy it,
are matters of significance in any dispute and vary according to the nature of the
dispute”. In this regard the discussion is going to dwell on the significance and
variation of the burden and standard of proof.

There are two types of burdens known in evidence which are introductory burden
which is also called the legal burden or persuasive burden and the other category is
the evidential burden.

The legal burden is the burden which is the burden of establishing the case. This
means that the party whose burden is that of establishing the case must establish it in
doing this he has to convince the court on the nature of the truth of his evidence235.
This is an obligation which remains on a single party for duration of the plea and it is
fixed and remains unchanged through out the entire trial and never shifts to the
adverse party236. The party that fails to discharge this burden will fail the case either
the whole or some parts of the trial.

The other type of burden is the evidential burden as Phipson states237 that it is the
burden of adducing evidence and it is the continuation of persuasive burden. It is the
burden of introducing evidence generally or the obligation of adducing sufficient
evidence on a particular fact to justify a finding on the fact in favour of the party.
Thus it is the obligation that shifts between the parties over the cause of the
proceeding of the litigation. Thus it shifts as soon as the party adduces evidence to
raise a presumption in his favour, which the court will consider prima-facie proof of
some state of affairs. Hence creating an evidential burden to the opposing party to
present evidence negative the presumption. The evidential burden is coved by the
examination of witnesses in court.

The above discussion on the two types of burden of proof avail us pace to direct our
discussion. On the concept of standard of proof regards being paid on the statement of
the question.

The general rule as far as the concept of the standard of proof is that “he who alleges
must prove238” as explained above then in criminal cases and in civil matters it is the
prosecution and the plaintiff respectively who have to prove. 239. This can be linked
with the constitutional requirement under Article 13(6) (b) of the constitution 240 that
every body is presumed innocent until proven guilty. It was said in the case of SONI

235
P. Kivuyo and Sameja F, Evidence Simplified Manual p 65
236
Loc cit
237
Philpson manual of evidence p 184
238
The evidence Act section 111
239
Y V Chandrachund and Manohar , V R (1997), Ratanlal and Dhirajlal The law of Evidence,
page 508
240
The Constitution of The United Republic of Tanzania

87
V STATE OF GUJARAT241 that it is for the prosecution to bring guilty home to the
accused

2.2 Burden of proof in criminal and in civil cases

The burden of proof in criminal and civil cases do differ; while in criminal cases the
general rule is that the burden is on the prosecution in civil cases the burden lies on
the plaintiff. However this general rule has exception as is goin to be seen in the
following discussion.

2.2.1 In criminal maters

Burden of proof is one of the most important issues in litigation, and in criminal
cases it is closely linked with the presumption of innocence - the principle in most
modern legal systems that an accused person is "innocent until proven guilty.

In criminal cases, the burden of proof is often on the prosecutor. The principle
that it should be is known as the presumption of innocence, but is not upheld
in all legal systems or jurisdictions. Where it is upheld, the accused will be
found innocent if a valid case is not presented.
For example, if the defendant is charged murder, the prosecutor bears the
burden of proof to show the jury that defendant did murder someone
The position reiterating the application of the burden of proof in criminal matters is
well stipulated by the case of WOOLMINGTON V DPP that;

“Throughout the web of the English criminal law, one golden thread, is
always to be seen, that it is the duty of the prosecution to prove the
prisoner's guilt ... No matter what the charge, or where the trial, the
principle that the prosecution must prove the guilt of the prisoner is part of
the common law of English, and no attempt to whittle it down can be
entertained.”

It was further said that the prosecution must prove the guilt of the prisoner, there is no
such burden laid on the prisoner to prove his innocence, and it is sufficient for him to
raise a doubt, as to his guilt; he is not bound to satisfy the jury of his innocence.

So what can be observed hare is that the prosecution being the party alleging is
obliged to prove the case against the accused when it has discharged the duty the
obligation shifts to the accused to raise reasonable doubts on the evidence given by
the prosecution. In this regard the court is supposed to base not on the weakness of the
accused evidence but on the burden by the prosecution as was stated in the case of
MOSHI D/O RAJABU V REPUBLIC242 that;

“The burden of proving the charge against the accused is on the prosecution
so that the trial Magistrate, to say he cannot depend on the prosecution
evidence, is to read the upside down the authorities - and if it is by design,
then it is strange and unjudicial behaviour.”

241
AIR 1991 SC 755
242
[1967] H.C.D. No. 384

88
Therefore here we can see the importance of the aspect of burden of poof that by
imposing it on the party alleging we are avoiding fabrication of a case or evidence
which could result into injustice in case it was otherwise( if the accused was to prove
innocence beyond reasonable doubts)

Also it prevents injustice to the accused in that penalty in criminal maters may lead
into restraining persons liberty and so for a person to be convicted of the offence the
person alleging is the one who has to the burden to prove on the existence of the fact
in issue.

2.2.2 In civil matters

In civil matters the burden of proof is imposed on the plaintiff. This is what is found
in section 111 of the Evidence Act. It is presumed that in civil cases when a person
claims for his right and when he is running in the adversarial system of dispute
settlement as we do the party alleging is expected to know all the facts of the case
hence he has burden to prove it.

The significance of this fact is that it prevents injustice because if the case has been
fabricated then the party may fail to discharge his burden.

2.3 The standard of proof required in criminal and in civil matters.

Starting with the criminal matters, where it is said the standard of proof is that the
prosecution has to prove beyond reasonable doubt and in failure it can not fall back
upon the evidence adduced by the accused in support of his defence to rest its case
solely thereon. In the case of JONAS NKIZE v REPUBLIC243 the court stated that;

“the general rule in criminal prosecution, is that, the onus of proving the
charge against the accused, beyond reasonable doubt lies on the
prosecution, is part of our law, and forgetting or ignoring it is unforgivable,
and is a peril not worth taking.”

On the other side as it is known the party after discharging the burden of proof on its
side such obligation shifts to the other party to prove other wise. The standard of
proof also varies according to the type of dispute at hand.

In criminal matters after the prosecution has discharged its burden and the burden
shifted to the accused, the accused has to raise reasonable doubts in the prosecution
case. So it can be said that the duty of proving put to the defence is lighter than that
imposed on the prosecution it was stated in the case of MUSOKE V R244 that in
criminal cases the accused person is in much more better or favourable side because
he is not called upon to prove the case beyond all reasonable doubts for it is sufficient
if he succeeds to establish a doubt of his guilty.

However basing on the adversarial system which is followed in Tanzania it is the duty
of the prosecution to prove beyond reasonable doubts that the crime has been

243
[1992] TLR 213
244
(1959) E.A 715

89
committed. Thus it is the evidence given by the prosecution which will enable it to
discharge its burden and not that of the accused as it was stated in the cases of
KOYAMA VR245 and MUSOKE V R (supra) that; where the evidence against the
accused is circumstantial the inference of irresistible and incompatible with the
innocence of the accused such that it may not be subject for explanation or hypothesis
except that of guilty. Simon LC, added in the case of MANCINI V DPP246 stating
that;
“I would formulate the following propositions: Woolmington's case, is
concerned with explaining, and reinforcing the rule, that the prosecution
must prove the charge it makes, beyond reasonable doubt, and consequently,
that if, on the material before the jury, there is a reasonable doubt, the
prisoner should have the benefit of it. The rule is general application, in all
charges, under the criminal law.”

In criminal maters therefore it can be concluded that when the burden shifts to the
accused then the accused only has to prove the case on balance of probabilities and
not beyond reasonable doubts.

2.4 Significance of the burden and standard of proof

Moreover, the burden of proof is of importance where by reason of not

discharging the burden which was put upon it, a party must eventually fail.
As discussed earlier, one significance of imposing a burden of proof to a
certain required standard is that it prevents injustice because if the case has
been fabricated then the party may fail to discharge his burden.
In criminal matters, Burden of proof is one of the most important issues in
litigation, and in criminal cases as shown earlier, it is closely linked with the
presumption of innocence - the principle in most modern legal systems that an
accused person is "innocent until proven guilty. The burden of proof is the
concept of holding one party to a dispute or one side of a debate responsible
for producing a prima facie case. If this party fails to produce a valid case, the
decision will go against them, without requiring any further evidence or
discussion.
However, where both parties have already produced whatever evidence they
had, the question of burden of proof ceased to be of any importance.247
Where the motion is at the discretion of the court and both of the parties have
laid evidence, the question of burden of proof would become relegated to the
position of secondary importance.248

245
(1971) H.C.D 278
246
[1941] 3 All E.R. [1941] 3 All ER 272
247
Chandrachund and Manohar, op cit p. 513
248
Ramji Dayawala & Sons P. Ltd v Invest Import, AIR 1981 SC 2085.

90
2.5 The variation of the two concepts depending on the nature of dispute

Generally in evidence, burden of proof rests upon a person who calls attention of the
court. It is thus, the burden of prosecution to prove their allegations and of the
plaintiff in civil matters to prove his/ her allegations.
This burden is however tend to shift to the other party where the party advances
claims prove its case to the satisfactory, that is, beyond reasonable doubt on criminal
matters and on balance of probabilities on civil matters and matrimonial causes. It is
thus in criminal case the burden of proving the matter, which was originally fixed to
the prosecution shifted to the accused person to prove the opposite, when the
prosecution establish the prima facie case. Some cases are illustrative. In HAMISI V
R249, the court held;

`Once the accused has been found in possession of property which may
reasonably be suspected of having been stolen or unlawfully obtained, then
the burden shifts on him of satisfying the Court as to how he came by the
same. But the burden is not a heavy one.'

The same was observed in the case of SAID HEMED V R250 where it was the
holding of the court that in criminal cases the standard of proof is beyond reasonable
doubt. Where the onus shifts to the accused it is on a balance or probabilities.
In civil matters when the plaintiff prove his case on balance of probabilities, the
burden shifted to the defendant to raise doubt, that is, he has to prove some
circumstances which will dis-entitle the plaintiff to relief claimed.
.
Another aspect to be reflected when talking of these variation is on the provisions of
section 114(1) of the Evidence Act that; where the person is accused of an offence
and he wants to prove the existence of the circumstances bringing his case within any
of the general exceptions provided under any law which establishes the offence. For
example general defences provided under chapter four of the Penal Code251. Thus
under these instances the burden of proof is upon him and the court shall presume the
absence of such circumstances.

In addition where the accused pleads alibi, the burden lies on him to substantiate that
fact at least to the extent of reasonable probability. Even if the evidence produced is
capable of creating a doubt whether the accused was there at time of the decision of
the happening, he becomes entitled to benefit of doubt252.

There are however circumstances where the whole principles of burden of proof are
varying, that is it is an accused who need prove the case in criminal matters and it is
the defendant who is to prove allegations in civil matters.

With the burden of proof in criminal matters there are instances whereby the
operating principle is that the accused is the one which is obliged to prove the case
and not the prosecution. Most of these instances are statutory. That is some statutes

249
[1963] EA 211
250
[1987] TLR 117 (CA)
251
Cap 16 [R.E 2002]
252
Y V Chandrachund and Manohar , V R (2001), Ratanlal and Dhirajlal The law of Evidence, 19th
edn page307

91
tend to put the legal burden on the accused. Some examples are; Tanzania Wildlife
Conservation Act, Prevention of Corruption Act, Prevention of Terrorism Act and
Immigration Act.

In matters of prevention of corruption for example, the burden of proving corruption

is laid in law, by the accused. This burden is however not so onerous as that which
lies on the prosecution and is discharged by a proof of balance of probabilities.
Section 23 of The Prevention of Corruption Act is to the effect that when the case
involves the receiving of corruption the burden is upon the accused to discharge it
hence different from the general rule which is to the effect that the burden of proof
lies on the prosecution.

Despite the fact that the law in this piece of legislation places the duty to discharge the
burden on the accused the court of appeal in the case of BEN ZUBERI MWAMBA v
R253 was to the view that before the burden of proof shifts to the defence in offences
involving being in possession of property corruptly acquired there must be reasonable
suspicion of corruption or unlawful acquisition. In this effect therefore though the
burden shifts to the defence the prosecution duty is just to raise reasonable suspicion
and not reasonable doubt.

Another variation to the general rule on burden of proof can be seen when dealing
with the aspect of Res Ipsa Loquitor which falls on the negligence cases in which the
plaintiff is to prove the fact of negligence however if from the face there of it appears
that the negligent act would no have happened had the defendant taken proper
measures to prevent it, the burden of proof lies on the defendant to prove that he was
not negligent. Here we can see the diversion from the general rule of burden of proof
in which now the plaintiff alleges but the defendant is the one who has to prove
innocence.

Further another variation can be seen when dealing with proof of execution of
document, in which the burden of proof lies on the part which wants to rely on it.
Illustration
When a document is proved to bear a certain signature and that it was signed with the
intention of execution, if a person wants to show the contrary the burden lies on him.
Another variation to be noted can be seen on the aspect of standard of proof when the
burden is imposed on the accused to prove a case due to the requirements of the
statutes is that though the law imposes the obligation on the accused to prove the
standard of proof required is that of balance of probability and not beyond reasonable
doubt

Further more it can be said that the burden of proof differs according to the
nature of the dispute in that in criminal trials the burden of proof is higher than
in civil cases. In criminal cases the standard of proof should be beyond
reasonable doubts while in civil cases is on the balance of probabilities. This
means in civil cases the party have duty to prove up to 50%.

253
[1984] TLR 172

92
However with these variation on the standard of proof on the two aspects of
the balance or preponderance of probability and beyond reasonable doubt
there are situation where an accused may be sued in both criminal and civil
case. The position is somehow complex in this aspect as defendant may win
in the criminal case but in the civil case the same defendant may be defeated,
the opposite is also the case.
It is the position of our jurisprudence that the conviction on criminal case does
not dispense with proof in civil case. This was the position of the court in the
case of MAKWARUZI V MULEMELA254.
3.0 CONCLUSION.
Taken more generally, the standard of proof demanded to establish any
particular conclusion varies with the subject under discussion. Just as there is
a difference between the standard required for a criminal conviction and in a
civil case, so there are different standards of proof applied in many other
areas of life. Therefore it follows from this discussion that there are the
significance of the court to cast the burden on the prosecution and the plaintiff
in both criminal and civil cases respectively. Though this has been the general
rule there have been several variation which ultimately changed the position
of the general rule as has been discussed above. All in all the presence of
burden and standard of proof in cases either criminal or civil is of paramount
importance.

254
[1971] HCD 181. in the case of PHILIP AND OTHERS V MKAMA [1970] HCD 93 the court
said;
“The burden and standard of proof in criminal and civil cases being different acquittal in the
former does not affect the claim on the latter”.
Likewise in the famous American case the court in the USA raised the difference between the
criminal and civil standards of proof in the interesting case of O.J. Simpson. Cleared by the criminal
trial of murder, the civil trial later ordered substantial damages against him due to the lower standard
of proof

93
BIBLIOGRAPHY.

STATUTE.

Tanzania Government of, The Evidence Act No 6 [Cap 6 R. E. 2002], The

Government Printers, Dar es Salaam.

BOOKS.

Black, H. C (1991), Blacks Law Dictionary, West Publishing Co. USA.

Chandrachund Y. V and V. RManohar , V R (1997), Ratanlal and Dhirajlal The

Law of Evidence, 19th Edn Wadhwa and Co. Nagpur,
New Delhi.

Chandrachund Y. V and V. R Manohar, V R (2004), 21st Edn, Ratanlal and

Dhirajlal The Law of Evidence, Wadhwa and Co.
Nagpur, New Delhi.

Howard, M. N, et al (1990) Phipson on Evidence, 14th Edition, Sweet & Maxwell,

London

Reddy, G.V. (2004) Sujatha Law Series: The Indian Evidence Act, 1872, Sujatha
Law Books PVT. Ltd, Hyderabad.

MANUAL.

Elliot, D. W, (1980), Phipson and Elliot Manual of The Law of Evidence, 11th Edn,
Sweet & Maxwell, London.

P. Kivuyo and Sameja F, Evidence Simplified Manual.

94
LEGAL SKILLS QUESTIONS AND ANSWERS

Qn: “…Law is the profession and not business. The member of a legal profession
is an officer of the court, whose main purpose is to assist the court in
administering justice according to the law”
Discuss this assertion in relation to the characteristics of the legal
profession distinguishing the same from business.

1.0 INTRODUCTION

The fact that lawyers form a profession seems to be accepted as a truism. It is one of
the few occupations which for centuries have enjoyed the status of a profession. Even
after the field was narrowed in the past two centuries, the profession of the law has
continued to occupy a place among professions, and to enjoy the status of
professionalism.

According to Black’s Law Dictionary a profession is a vocation, occupation requiring

advanced education or training. A profession is further defined as an especially
desirable and dignified occupation. It implies intellectual training and an expertise
which is largely mental in character255.

The 1980 Report of the British Royal Commission on legal services described
“profession” as follows:
When a profession is fully developed it may be described as a body of men and
women (a) identifiable by reference with some register or record; (b)
recognized as having a special skill and learning in some field of activity in
which the public needs protection against incompetence, the standards of skill
and learning being prescribed by profession itself; (c) holding themselves out
as being willing to serve the public; (d) voluntarily submitting themselves to
standards of ethical conduct beyond those required of the ordinary citizen by
law; (e) undertaking to accept personal responsibility to those whom they
serve for their actions and to their professions for maintaining public
competence256.

A legal profession is, therefore, an occupation calling or vocation of those people who
have attained advance specialized education and training in the field of law and are
qualified and licensed to practice law. These people are called Legal Practitioners or
advocates.

The legal profession is governed by various legislations, in order to make them not go
outside the ethical and other obligations of legal practitioners. Among the legislations
in Tanzania are the Advocates Act257 and subsidiary legislations made thereunder, the
Tanganyika law society Act258, and The Rules of professional conduct and Etiquette

255
Perkin, H. (1980) “profession and the Game of life”, Davis Centre, Princeton University, Spring
Semester,(mimeo) at pp 2-3
256
As quoted in Alexander, Lord of Weedon (1922): “The Role of the Advocate in Society” Newzland
Law Journal , July 1992, at p 236
257
Cap. 341 R.E. 2002
258
Cap. 307 R.E. 2002

95
of the Tanganyika Law Society. The latter is the one in which we can find the
characteristics of a legal profession.

This work shall be confined into differences between legal profession and business
while discussing in details the main characteristics of the legal profession.

2.0 DIFFERENCES BETWEEN LEGAL PROFESSION AND BUSINESS

Having seen the meaning and the law governing legal profession in Tanzania, it is
now the turn to look at the differences between it and business basing on the
characteristics of a legal profession.

2.1 Advertisement
The first characteristic which distinguishes legal profession from business is the rule
against advertisement. The advocates Act and the Rules of Professional Conduct and
Etiquette of the Tanganyika Law Society (hereinafter referred to as the Rules of
Professional Conduct and Etiquette) prohibit the employment of any kind of
advertisement through the media or such other means which are regarded as
amounting to advertisement.

The provisions of rule 5 of the Rules of Professional Conduct and Etiquette, provides
among other things, the following;
No advocate may directly on indirectly apply for or seek instruction for
professional business, or do or permit in the carrying on of his practice any
act or thing which can reasonably as…advertising or as calculated to attract
business unfairly.
In its scope, the rule against advertisement is wide under the law; it embraces not only
self-promotion in newspapers, magazines and so forth, as is ordinarily understood in
business. In respect of an advocate or firm of advocates it covers a considerably wider
area. It includes such acts as an over description of oneself on a nameplate, the use of
an ostentatious nameplate, or displaying a nameplate elsewhere than at one’s place of
business. It also includes the taking of photographs which are intended for publication
while wearing his gown259.

2.2 The rule against Touting

The other difference between the two is the rule against touting. This rule is covered
by section 47 of the Advocates Act and rule 5 of the Rule of Profession Conduct and
Etiquette. Touting is the use of intermediaries (touts) to bring or attract clients to one-
self. Although this is prohibited in law it is a very common, important and legal
practice in business transactions.

Touting is not only professional offence but also criminal. In fact, tout are regarded
with such aversion among legal circle that the law gives to the Chief Justice powers to
exclude them from the precincts of the Court. In a certain case an aspiring Advocate

259
Twaib, (1997) THE LEGAL PROFESSION IN TANZANIA: The Law and Practice, p. 254

96
was removed from the list of applicants for enrollment after allegations of touting
were leveled against him. He had to wait for an entire year before being admitted260.

2.3 Exclusion of non lawyers.

Another difference is that, for a person to act as a lawyer he/she should have obtained
some special qualifications, whereas in business, so long as a person has got capital
there are no any prior qualifications for him to be a businessman. In our country,
before a person can practice as a lawyer he should, first, be enrolled as an advocate as
per the provisions of the Advocates Act261. Or a person may be entitle to practice as
an Advocate if he is solicitor of the supreme Court in England, Northern Ireland or the
Republic of Ireland, or if he hold some qualifications as are provided under the
Advocates Act262 or if he is the holder of any similar qualification which is accepted
by the council of legal education as a professional qualification.

Section 41 of the Advocates Act provides for the restriction of unqualified persons not
to act as Advocates. Sub section (2) of this section makes the contravention of this
section an offence and contempt of the Court which may result to penalty or
incapacitation of maintaining action for any costs in relation to the suit, forfeiture and
fine. In addition to section 41, section 42 of the Advocates Act provides for penalty
for pretending to be an Advocate.

However there are some circumstances in which non lawyers are allowed in some
restricted sense to represent others before the Court. A party may be represented in
civil suit, if he is a minor or, for any sufficient cause, he cannot adequately put his
case or defend himself. The court should not allow a representative of a party to act
on his behalf merely because he would like the representative to speak for him, or he
thinks that the representative is cleverer than he is.263 But this practice of finding for
the sole reason of his competence is very common in business transactions.

The above point was illustrated in the case of N.K.J. ZABRON V.NAIMAN
MOIRO264. In that case, a non lawyer named Rangia was seeking to represent a
person who was a party to the case on the basis of a power of attorney in which the
party purported to grant him the right to represent him before the Court. In denying
audience to him, Nyalali, C.J., said;
I am not aware of any provision of law permitting the conduct of case by a
person holding a power of attorney where the party concerned is also present
in Court. The learned trial judge undoubtedly was wrong to permit the said
C.J. Rangia to appear in the case.

2.4 Remuneration
The remuneration rules also mark the distinction between the two. In normal business
transactions remuneration is subject to contractual agreement between the parties

260
Ibid, p. 257
261
Section 8 of the Advocates Act.
262
Ibid
263
Twaib, F, The Legal Profession in Tanzania: the law and practice, p. 150
264
Civil Appeal No. 13 of 1979, H.C.T., Mwanza

97
transacting, whereas in legal profession remuneration of Advocates are governed by
the orders made by the Remuneration committee. According to section 49(2) of the
Act, the Chief Justice or the remuneration committee may make orders prescribing
and regulating the remuneration of advocates in regard to both contentious and non
contentious business.

Advocates are not allowed to agree or accept remunerations above that which is
provided by the remuneration rules. However this rule is somewhat watered down by
other rules, for instance, rule 13 and 14 of the Advocates Remuneration and Taxation
of costs Rules265, under which as between client and advocate, additional
remuneration may be allowed where a job requires and receives exceptional dispatch.
However, despite the fact the fact that the Advocate may agree with his on the amount
he is going to charge him, he cannot charge him below the minimum amount set by
the Remuneration rules266.

2.5 The prohibition of the sharing of profit with non legal personnel.

According to Rule 6(f) of the Rule of professional conduct and etiquette of the
Tanganyika Law society, an Advocate is not allowed in any way to share his profit
with a person who is not a legal professional. This is different from normal business
transactions, where a businessman can share his profits with whoever he wishes.

2.6 A lawyer should not be used as a tool by his client.

Though a lawyer is an agent or representative of his client, he cannot afford to be tool

in hand of the client. No member of the legal profession should accept such work
which make him disloyal to the court or place him in a compromising position. In
normal business transactions however, the businessman is allowed to undertake any
type of business provided that it legal and it is not contrary to any public policy.

2.7 Fiduciary duty to the client.

Despite the fact that a lawyer is not a tool in the hands of his client, yet he is in a
position of trust, and he must do every thing to protect the interests of his client
according to law. Whenever it appears that a lawyer gives out the secret of his or her
client that means he break the fiduciary duty that he or she owes to his or her client.
Whereas in business transaction the relationship between the businessman and his
client is based upon contract, a business man is not a trustee of his client (subject to
various exceptions, like banking business).

2.8 Competition
No member of legal profession should compete with the other members of the
profession. Allowing competition among advocates will amount to defeating the
purposes for the enactment of provisions which prohibits advertisement and touting.
However competition is the key feature in normal business transactions, since
businessmen have to compete with each other in order to establish themselves in their
respective businesses.
265
1991, G.N. No. 515 of 6th December, 1991
266
Rule 5, Rule of Professional Conduct and Etiquette of The Tanganyika Law Society, and Rule 12 of
the Advocates Remuneration and Taxation of Costs Rules, 1991.

98
2.9 Conflict between duty and personal interests

Whenever there is conflict between his interests and duty, his duty must prevail,
whereas in normal business transactions the businessman’s interests prevail. In an
application before the Advocates Committee at Dar es Salaam267, the Mr. Benard
Mrema complained against Dr. Lamwai for not represented. The reason given for non
representation is that the advocate (Dr. Lamwai) was a member of parliament hence
too busy to attend the case. The committee ruled for the complainant stating that the
complainant had lost the case due to Dr. Lamwai’s negligence. Being a member of
parliament was Dr. Lamwai’s personal interest in relation to his duty as an advocate.

3.0 CONCLUSION

The discussion above reveals the differences between the legal profession and
business basing on the former characteristics. In our opinion, we think these
differences should be kept, but with some minor modifications on the rules governing
the conducts of advocates. Among the areas to be modified is the rule against
advertisement, the law on contingency fees and so forth.

Qn:“In the discharge of his office, the advocate has a duty to his client, duty to
his opponent, a duty to court a duty to the state and a duty to himself.”

Discuss how an advocate can successful discharge all these duties and explain
what he should do in event that two or more of these duties conflict each
other within the context of conflict of interests.

OUTLINE

1.0 INTRODUCTION
The concept of advocate and roll

2.0 MAIN BODY

- Advocate’s Duties and the way can be discharged successfully
-The advocates duties and conflict of interests

3.0 CONCLUSION

4.0 BIBLIOGRAPHY

1.0 INTRODUCTION
An advocate for an ordinary person is known to be a person with LLB qualification.
The scope of the minds of people goes as far as representation of the clients to the

267
In the matter of Advocates Ordinance Cap. 341 and in the matter of an Application by Benard R.
Mrema and in the Application to remove from the roll, Dr. Masumbuko R. M. Lamwai, Advocate
Application No. 19 of 2000,

99
court of law. Somehow explicit definition states that an advocate is a person involved
in advising clients and drafting legal documents as well as appearing in the court of
law to defend their clients.

The law defines an advocate as any person whose name is duly entered upon the
Roll268. Thus the “Roll” means the list of Advocates kept by the register of the High
Court269 certain qualification are of vital importance for a person to be eligible to
qualify as an advocate, these qualification bear academic and professional one and the
said person has to go through certain oral examinations conducted by the Council of
Legal Education270 and subsequently be interviewed by the chief justice271.In
Tanzania the roles of advocates are wider as they are the only persons who can
practice law in all regular courts.272

2.0 MAIN BODY

The duties of the advocate are classified as five-folds. As Fauzi Twaib 273on lord
MACMILLAN classification the Advocate has a duty to his clients, a duty to his
opponent ,a duty to the court, a duty to himself and the duty to state .
For MWALUSANYA J (as he then was), these duties are not exhaustive thus in the
case of KHASSIM MANYWELE V R274added that the good advocate must be
histrionic, crafty, courageous, eloquent, quick minded, charming, and great hearted.
However for the discharge of his duties as provided for by Lord Macmillan it needs
talents as there are conflicting interest against each duty which is the offspring of the
conflict of interest.

2.1 DUTIES OF AN ADVOCATE AND THE WAY THEY CAN BE

DISCHARGED SUCCESSFULLY.

To start with the duty of an advocate to the client; this starts at the time of taking
instructions from the client. In giving instructions, an advocate should be patient as he
is not supposed to disturb a client when narrating the story. After the completion of
narratives an advocate has to fill the gaps by asking questions. The advocate has to
advice his client and if the case is to be taken to court of law, and his client is the
plaintiff an advocate has to draft documents mainly the demand letter, plaint and other
subsequent documents for civil suit in case the client is the defendant the advocate has
the duty to read the documents from the other side namely the plaint later writes the
written statement of defence. Thus he has to abide to the rules of pleadings.

Also an advocate owes duty to his client not to divulge confidential communication
with the client. The duty not to represent conflicting interests was well stated in the
case of R V RAJANI275 as amongst the advocate duties to the client, where the court

268
S. 2 of The Advocates Act(cap 341 R.E 2002)
269
Ibid S .2
270
This is established under section 5A of the Advocates Act, its function are provided for under
section 5B of the said Act
271
Section 8 of the Advocates Act
272
Section 33(1)of The Magistrates Courts Act 1984 Advocate may not appear or act for any party in
the primary court
273
F. Twaib, The Legal Profession in Tanzania: The Law and Practice, p 76
274
Criminal Application No 39 of 1990 (H.C.T at Dodoma) Unreported
275
( 37 C.I.J 48)

100
held that a lawyer appearing for the prosecution and who also prepared a draft of a
written statement for the accused was guilty of having committed breach of the rule of
professional conduct.
Furthermore in this aspect an advocate has to give his opinion to his client in regard to
the nature of the case. The advocate has to tell the client the weakness in his case In
WILLIAMS V FANSHAW PORTER & HAZELHURST (A FIRM)276 however;
Mance LJ said that a solicitor owed his client a duty to keep him informed about any
error in the handling of the client’s affairs which might give the client cause for
complaint against the solicitor. The decision of the House of Lords in CAVE V
ROBINSON JARVIS & ROLF277 does not directly address the duty of a lawyer to
discover or disclose his mistakes. It was stated; it is only where the defendant is aware
of his own deliberate wrongdoing that it is appropriate to penalise him for failing to
disclose it.
. In addition to that the advocate is duty bound to inform his client the general conduct
of the case. This duty was well stated in the case of WILLIAMS V FANSHAW
PORTER & HAZELHURST (A FIRM) (supra) Mance LJ at p 29 said that;
"there is no doubt that a solicitor owes a duty to keep his client informed
about the general conduct of the matter he is handling as well as about any
error in the handling of the client's affairs which may give the client cause for
complaint against the solicitor".
The duty to keep the client informed is a general or "running" duty. On top of this
duty an advocate has to appear before the court to defend his client after agreeing the
instruction from the client and instituted the case for his client. This duty was
reiterated in the cases before the Advocate Committee278, for instance IN THE
MATTER OF THE ADVOCATES ORDINANCE CAP 341 AND IN THE
MATTER OF AN APPLICATION OF BERNARD R. MREMA AND IN THE
APPLICATION TO THE REMOVAL FROM THE ROLL DR. MASUMBUKO
R.M. LAMWAI, ADVOCATE279, where Dr. Lamwai did not appear to represent
the complainant as instructed hence the dismissal of the complainant case made the
Committee to come up with the decision that failure to render legal services by
representing the complainant was equated to misconduct
For the case which is to be taken to the court of law the duty of advocate to the client
was stated in the case of PETT V GREYHOUND RACING ASSOCIATION
LTD280 Lord Denning stated that for justice to be done every one ought to have the
help of someone to speak for him adding that the person for such task is an advocate.
In this case therefore the advocate has the duty to his client to speak for him.

In addition, an advocate has duties to his opponents. The advocate has to use his best
efforts to restrain and prevent his client or himself from resorting into sharp and unfair
practise to his opponent in court. Further his duty to his opponent extends to the
supply of documents before institution of the case. For instance an advocate has to
write demand notice to his opponent before instituting the case otherwise there will be

276
(2004) UKHL 18, (2004) WLR 3185
277
[2002] UKHL 18, [2002] 2 WLR 1107
278
This Committee is established under section 4 of the Advocates Act.
279
Application No19 of 2000
280
(1969) 1 QB 125 at P 132

101
no litis contestatio. Again the plaint has to be served to the opponent and if the
advocate is in the defence side has the duty to reply to the plaint.

In the mean time as the statement of the question states an advocate has the duty to
serve his client “to the exclusion of others” is not absolute .It is tempered by his duty
to the court281.Thus the duty of an advocate to the court is an overriding duty which
in appropriate cases, must be observed even at the expense of his clients interest .The
duty obligates the advocate never to mislead or misguide the court .The advocate duty
to the court extends to the fact that the court is made aware of the cases decided on the
mater before the court disregarding as to whether they are in favour of the advocates
case. This will involve the thorough knowledge of the law and grasp of relevant laws,
both substantive and procedural; hence an advocate is duty to equip himself.

This duty brings the idea that before appearing in the court of law an advocate has to
make a research. In Tanzania the landmark case of ABUALLY ALI BHAI AZIZ V
BHATIA BROTHERS LTD282 the Court of Appeal commended the work done by
the counsels in both sides and amicus curiae which ultimately drove the court to
come up with the brilliant decision on the matter. The court in this case in
appreciation of the role played by the advocate observed that;
“…We must at this stage express our profound appreciation for the industrious
research made by all advocates in general, and by Mr Jadeja and Professor
Fimbo in particular. As it will presently be apparent, this extensive research
has had a direct impact on the quality of our decision”283
In this case therefore the duty of advocate to the court as far as research was
concerned was commendable. The courts in Tanzania likewise compile the advocates
to comply with the duty of advocate to research as was stated in the case of DR
MASUMBUKO LAMWAI V VENANCE NGUHA AND THE ATTORNEY
GENERAL284.where the court stated that the counsels of both sides could not recover
the costs of the case as they did not conduct research .therefore the duty to the court is
the inherent one. In this case the court observed that;
“…both advocates therefore have more than ten years of legal practice and are
expected to know that where a legal issue is raised in the highest court in the
land well in advance of the hearing date, appropriate legal research is required
by advocates of both sides to assist the court to make the decision which is
correct in law. We are compelled to express our disappointments at the
conduct of learned advocates both whom we know are capable of doing better
than they did.”285

Other duties of an advocate to the court are that the advocate has duty as far as his
personal relations with the judge; marked attention and unusual hospitality on the part
of the lawyer to the judge, which is likely to lead to misconstruction of motives
should be avoided. Further an advocate being the officer of the court is not supposed
to waste the time of the court by trying to obtain adjournment without proper reasons.
If that is done by an advocate it will substantiate the maxim justice delayed justice

281
Twaib op cit p. 87
282
Misc civil Appeal No 1 of 1999 (CA) Unreported
283
P. 3 of the unreported case.( ABUALLY ALI BHAI AZIZI’s case ) Also found in the book of C.S,
Binamungu and M.C Mukoyogo, (2005) Studying Law Skills: A Guide for Beginners in Law, p27
284
Civil Appeal No 56 of 1997 CA at Dar es salaam (Unreported)
285
P.3 of the unreported case, See also Binamungu & Mukoyogo op.cit p 29

102
denied. Thus therefore an advocate is obliged not to cause unnecessary delay of cases
in court.

Meanwhile an advocate has a duty to himself. An advocate must be presentable in all

occasions and must appear in the court only in the prescribed attire. Further an
advocate has to be sportive that is accepts any result of the cases. Apart from these
duties adherence to the law especially the Advocate Act and the Regulations
established thereunder will make the advocate in better position. That an advocate is
not supposed to contravene sections 46, 47 and 48 of the advocates Act286.

The duty of an advocate to the state is that, when in the course of perfoming his duties
an advocate has to make sure that he acts within the laws of the land that he is not
supposed to contravene public policy. However the balance of interest between
lawyers and the state suffered set backs after independence until 1990’s in Tanzania.
The legacy had been that most states have negative attitudes towards lawyers.
Napoleon Bonaparte wishes to ‘cut the tongue’ of advocates. Likewise
Shakespeare287 preferred the’ regime without lawyers’ stating that, lawyers have to be
killed.

As it has been noted, soon after independence, the relationship between the state and
the lawyers was not settled; the rationale was failure to enshrine the Bill of Rights in
the Constitution288. It should, however be known that the right to legal representation
is provided under the Constitution basically under the articles providing for the basic
rights of individuals289 and without the bill of rights being enshrined in the
Constitution we do not have this right. The intrusions of legal technicalities so
beloved by lawyers were taken as obstacles towards the policy of developmentalism.

However after the enshrinement of the bill of rights in the Constitution in 1984 the
then Deputy Prime Minister and Minister of Home Affairs 290 had on number of
occasions while in power found in confrontation with lawyers291. However most of
286
These provisions prohibit the acts of touting by advocates and the exclusion of touts from the court
precincts and further prohibit acts of inducement to the clients by the advocates.
287
Shakespeare, William, Henry, VI, part II Act 4 Scene 2
288
In the Interim Constitution of 1965 the schedule of TANU Constitution was appended in the
Constitution. At the very beginning the 1977 Constitution of the United Republic of Tanzania did not
incorporate the Bills of Rights but the Constitutional Fifth Amendment Act 1984(Act No 15 of
1984) incorporated the Bills of Rights which however was suspended for three years by the
Constitutional (Consequential Transitional and Temporal Provision Act,1984 (Act No 16 of 1984)
289
Article 13(6) (a) of The Constitution of the United Republic of Tanzania 1977 as amended. Section
310 of Criminal Procedure Act No.9 of 1985 provides for the right of legal representation. Likewise
under the Legal Aid (Criminal Proceeding) Act, 1969 Cap 21provides for representation of indigent
persons under sections 3 and 4 of the Act.
290
Fauzi analyses him as the person fond of instant justice he paid no respect to legal procedure
several times his troubles with lawyers was result of off-handed matters of legal character.
Sometimes he even thought to interfere in cases which were sub judice in court
291
The Minister Mr Augustine Lyatonga Mrema by that time was also the Member of Parliament for
Moshi Rural Constituency. In the 1995 General Election he contested for the Presidential Post
through the main opposition Party by then NCCR-Mageuzi whereby he got twenty seven percent. In
the 2000 and 2005 General Elections he contested for the presidential post as the candidate of
Tanzania Labour Party. In the 2000 election results he got seven percent of all votes while in the
2005 election he did not get even one percent.

103
the advocates have decided to have the balancing approach to find as to whether the
member of executive in dispute with the members of the Bar is acting on his own
capacity or is acting within the four corners of the executive292.

Despite all confrontation by some members of executive to the lawyers, the duty of
advocate towards the state in that time was maintained. Constitutionalism and
democracy has awakened the state to respect this profession especially during this
period of market-oriented economic system which has expanded the private sector
and internationalisation of the economy.

Having seen the above, duties of an advocate, it has to be borne in our mind that the
function of advocates are not confined towards the court room only. Advocates have
many functions as their duties starts even before the matter is taken before the court
room. Lawyers apart from rendering advice to the clients to take their maters to the
court of law it is evident that litigation is not the primary or basic expression of law
and justice. The lawyer has equally important roles to play apart from litigation. The
advocate will start by conducting investigation of the case of his client, making
research and giving opinions as well as rendering advice to the public these duties are
not confined within the court of law. In short the advocate can opt that instead of
taking the matters before the court negotiation is taken as preferable.

2.2 THE ADVOCATE DUTIES AND THE CONFLICT OF INTEREST.

As the statement of the question states, an advocate duties are to the court, to his
opponent, states the client and to himself. In Tanzania independence of judiciary is an
important element in the administration of justice. This principle has further been
extended to include the doctrine of independence of the Bar293 therefore in the
performance of his daily activities an advocate can balance the interests of conflicts
either the interests of the state or the interests of his client or the interests of the court.
As observed when dealing with the duties of the advocate to the court the interests of
the clients can be sacrificed to make sure that the interests of the court are put
forward.
In addition Arden LJ in GEVERAN TRADING CO LTD V SKJEVESLAND294
said; Under the Civil Procedure Rules it is the express duty of the parties and hence
their legal advisers, including advocates to help the court to further the overriding
objective. (The Lord Justice was referring the English Laws which can also be applied
in our country by virtual of section 3(2) of the Judicature and Application of Laws
Act295 in case there is a lacuna in our laws.)
A conflict of interest can arise between an advocate and a client on matters of
assertion of false evidence by client. Thus when false evidence is offered by the
client, however, a conflict may arise between the lawyer's duty to keep the client's

292
In the confrontation between the then Deputy Prime Minister and the Minister of Home Affairs and
partners of the Law Firm Arusha, Mr Ngalo one of the partner was of the opinion that, the matter
presented in Civil Application Number 24 of 1992 H.C.T At Arusha represented not the direct
conflict between them and the Government but rather the conflict between them as the member of
Legal profession and one man who has gone beyond anybody’s control and who had been allowed to
put into operation his own model of Kangaroo courts.
293
Ibid p 102
294
[2002] EWCA Civ 1567, [2003] 1 WLR 912
295
Cap 358 R.E 2002.

104
revelations confidential and the duty of candour to the court. If perjured testimony or
false evidence has been offered, the advocate's proper course ordinarily is to
remonstrate with the client confidentially. If that fails, the advocate should seek to
withdraw if that will remedy the situation. If withdrawal will not remedy the situation
or is impossible, the advocate should make disclosure to the court.296

Where there are the conflict of interests such that an advocate appears to represent
both the prosecution and the accused the position was stated in the case of R V
RAJANI (supra) that the advocate is obliged to side with only one side of the case
either prosecution side or the side of the accused. Thus if an advocate has previously
represented the client and acquired the knowledge of the case he is not supposed to
act as the counsel of the opponent in the case where the interest of his former client is
involved297. Failure to do so therefore an advocate will be held liable for misconduct.

Though an advocate has duty to advice his clients in several matters it is the duty of
an advocate not to engage himself to the case which he has interest. He should not act
or plead in the matter which he is pecuniarly interested for instance an advocate
should not act in the matter of bankruptcy when he is the creditor to the bankrupt or
he should not accept the brief from the company in which he is the director. By so
doing the conflict of interest towards his client will not exist.

It is also for the avoidance of conflict of interests that an advocate should disclose to
the client any interest that he may have in the matter. This will make the advocate to
have exercised the duty to himself properly and the duty to the client. It is upon the
advocate to make sure that if the conflicting interest on these duties will be prejudicial
to either side to advice the client to find for another advocate.

3.0 CONCLUSION

To conclude, generally, an advocate duties are so extended to the extent that in the
course of performing his duties due diligence has to be the key factor for the
achievement of the intended goals as the professional. Having been equipped with
such extended duties the likelihood for the occurrence of the conflict of interests is
possible. The general principle has been that the advocate’s duty to the court is the
overriding one over the duty to the client thus the interests of the client can be
sacrificed. As was discussed above whenever an advocate has either pecuniary
interest on the case and that if he takes the instruction to act for the case either his
interests or the interests of his client can be prejudiced it is advised that, the said

296
http://www.alabar.org/ogc/ropc/rule3-4.htm
297
If an advocate has acquired relevant knowledge concerning a former client during the course of
acting for that client, the advocate must not accept instructions to act against the client. See
Commission for the Administration of Justice: CODE OF ETHICS AND CONDUCT OF
ADVOCATES. THE PALACE VALLETTA, in
http://www.mifsudbonnici.com/lexnet/articles/index.htmlI

105
advocate is not supposed to take the brief. All in all for the duties of advocates in
Tanzania the law i.e. the Advocates Act and the subsidiary legislation thereunder had
been used to maintain the profession of the lawyers in the country. Likewise the
Committees established under such law are working for the purpose of maintaining
the standards of lawyers in the country.

Qn: “Every person is entitled to call upon an assistance of a lawyer of his or her
choice to protect and establish his or her legal rights and to defend him or
her in all stages of criminal proceedings.
Supported with relevant authorities, write a critique on the above
statement.

1.0 INTRODUCTION.

Legal representation is an important legal right which is almost universally

recognized. It refers to the right given to any party in a trial to be guided or get
assistance of a legal counsel. According Duff, A.G, J; “it is elementary principle of
justice that accused person should be given every reasonable facility for defending
himself against a criminal charge”. It is true that not every man has ability to defend
himself on his own, even the most intelligent members of the society find themselves
out of place in the Courts of law and the situation is worse for the illiterate because
they are not trained in this discipline.

An accused person can be represented before the court of law by either an Advocate,
Para legal (non lawyer). An Advocate is defined under section 2 of the Advocates
Act298 to mean any person whose name is duly entered as an Advocate upon the roll.
However in order for one to be eligible for enrollment, he needs to possess certain
qualifications both academic and professional and pass certain interviews conducted
pursuant to section 8 (1) and (3) of the Advocates Act299.

The right to legal representation does not necessarily mean that the person in Court
should be represented by an Advocate or a lawyer. What is important is to have a
trusted person- a person in whom one can rely on for the purposes of representing his
interests. These are persons who accepted and have long history of working in the
Courts helping litigants. Unlike a registered Advocate, the Para legal cannot address
the Court, conduct examination in chief nor cross examine witness. He is a Mackenzie
friend300 of the litigant, just there to guide him.

For the purpose of this question we are going to have a look on the right to legal
representation and specifically on its legal basis, and legal representation in practice.
Thereafter we are going to look on the criticisms behind legal representation and
finally we will put our work to an end.

298
Cap. 341 R.E 2002
299
Ibid.
300
According to the case of McKenzie v McKenzie [1971] probate 33, a McKenzie friend or McKenzie
man or a McKenzie lawyer is a person who is allowed to assist or prompt a litigant in person. This is
because every litigant is entitled to be accompanied to court by a friend to assist him on case.

106
2.0 THE RIGHT TO LEGAL REPRESENTATION.

Legal representation is a Statutory right in some jurisdictions, but in Tanzania it is

both a Statutory and Constitutional right. That right is so jealously guided by the law
that if an accused is deprived of it through no fault of his own and through no fault of
his advocate and he is in the end convicted, that conviction cannot be allowed to
stand, on appeal it must be quashed301.

The right to legal representation is closely related to two other rights, that are, the
right to be heard and the right to personal freedom and liberty302. However, it is not
every man who has the ability to defend himself on his own. He may be tongue tied or
nervous, confused or wanting in intelligence. Lord Justice Denning303 stated that;

“… if justice is to be done, (everyone) ought to have the help of someone to

speak for him. And who better than a lawyer who is trained for the task? I
should have thought therefore that when a man’s reputation or livelihood is at
stake, he not only has a right to speak by his own mouth. He also has a right
to speak by a council or solicitor.”

For a hearing in a Court of law to be said to be fair, the parties thereto must be able to
understand what is transpiring. This is not always easy because of the legal
technicalities involved. Even the most intelligent members of our societies always
find themselves out of place in the Courts of law 304. At the same time it is the duty of
the accused person to take the opportunity given in the Court seriously and engage a
counsel to represent him. Where the accused does not take his defence seriously he
should not expect perpetual sympathy from the Courts of law. For instance, in the
case of MICHAEL MPEMBELA V. R305. The appellant was out on bail for almost
half a year. However he made no effort to look for and engage a counsel to defend
him. His application for further adjournment on the hearing date to enable him to look
for a counsel was rightly rejected by Maina, J. His Lordship noted with regret that the
accused had neglected his duty to look for and engage a lawyer to represent him.

2.1The Legal Basis

As stated above, the right to legal representation in Tanzania is constitutionally

provided. It is incorporated in the right to a fair hearing provided for in article 13 (6)
(a) of the Constitution of the United Republic of Tanzania, 1977, as amended from
time to time (hereinafter referred to as the Constitution) which provides that,

“For the purpose of ensuring equality before the law, the state shall make
provisions that every person shall, when his rights and obligations are being
determined, be entitled to a fair hearing by the Court of law”.

Without legal representation an accused person cannot be said to have been properly
heard. This was discussed in a persuasive authority of the U.S Supreme Court in

301
Samatta, J, in the case of ALIMAS KALUMBETA V. R (1982) TLR 329.
302
Bisimba and Maina, Justice and Rule of Law in Tanzania, (2005), p. 468.
303
PETT V. GREY HOUND RACING ASSOCIATION LTD. [1969] 1 Q.B 125
304
C.P. Maina, Human Rights in Tanzania, (1997), p. 334
305
[1980] TLR 322

107
POWELL V. ALABAMA306. Where Mr. Justice Sutherland said that without
assistance of a counsel, the hearing would have little meaning or importance. He
further stated;

“The right to be heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel. Even the intelligent and
educated layman has small and sometimes no skill in the science of law. If
charged with crime, he is incapable, generally of determining for himself
whether the indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel he may be put on trial without a
proper charge and convicted upon incompetent evidence or evidence
irrelevant to the issue or otherwise in admissible.

He lacks both the skill and knowledge adequately to prepare his defense, even
though he has a perfect one. He requires the guiding hand of counsel at every
step in the proceedings against him. Without it, though he be not guilty, he
faces the danger of conviction because he does not know how to establish his
innocence. If that be true of man of intelligence, how much more true is it of
the ignorant and illiterate or those of feeble intellect?”

The right to legal representation is also statutorily provided. In Tanzania section 310
of the criminal procedure Act of 1985, provides that;

“Any person accused before any criminal court, other than a primary court
may of right be defended by an advocate of the High court…”

Moreover section 3 of the Legal Aid (criminal proceedings) Act, 1969 provides for
free legal Aid paid for by the state. This section provides that;

“where in any proceeding it appears to the certifying authority that it is

desirable, in the interest of justice that an accused should have legal aid in the
preparation and conduct of his defence or appeal and that these means are
insufficient to enable him to obtain such aid, the certifying authority may
certify that an accused ought to have free legal aid. For proceedings in the
High Court the certifying authority is the Chief Justice or the Judge of the
High Court conducting such proceedings and in the case of proceedings
before a District Court or Resident Magistrate Court the certifying authority
is the Chief Justice”.

Apart from local legislations, Tanzania has ratified the international covenant on civil
and political rights. This covenant provides for the rights to legal representation.
Under article 14(3) (d) it requires that every accused person should have the right to
legal assistance at the expense of the state. The High Court in the case of KHASSIM
HAMISI MANYWELE V R.307 ruled that every Tanzanian accused person is
entitled to legal representation, that the right extends to non capital offences, and

306
[1932] 287 U.S 45.
307
High Court of Tanzania at Dodoma , Criminal Appeal no 39 of 1990, (Unreported)

108
where the accused can not himself afford the lawyer’s costs, the state must pay for
him.

2.2 Legal Representation in Practice.

In practice those accused persons who are worth enough to hire advocate do hire them
at their own expenses, if that is the case they have the right to choose the advocate of
their choice. For this reasons the rich people are at a better position to exercise their
constitutional and statutory right to legal representation.

On the other hand, the indigent or the poor cannot afford the service of advocates, and
for this reason the notion of legal aid comes in. The legal aid presupposes services of
lawyer free of charge. In Tanzania we have a number of legal aid schemes which are
famous in providing legal assistance for Tanzania indigent. This includes Tanganyika
law society, University of Dar es Salaam and State Legal Aid Schemes. Normally
these legal aid schemes provide assistance to the indigent in free of charge system.
The State legal aid scheme much concentrating in providing services in criminal cases
by so doing it implement Article 14(3) (d) of international covenant on civil and
political right which require that every accused person should have the right to legal
assistance at the expenses of the state.

However, the right to choose the counsel of his choice is not plainly available to every
accused person in Tanzania. This is due to the fact that section 3 of the Legal Aid
(Criminal Proceedings) Act restricts this right only to poor and under circumstances
of the case which require legal representation, as it can be determined by Chief Justice
or the High Court. In practice the legal aid is available to the indigent accused of
offences attracting capital sentence or long term imprisonment. Examples murder
cases and treasons.

The accused person can also exercise his right to legal representation trough the
services of a Para legal officer. However the legal representation by Para legal officer
is limited. A Para legal cannot address the court by way of making submission or
asking the question and cannot cross examine. All he can do is to sit beside the
accused friend in court, to take notes, to quietly make suggestion to the litigant and
give advice, to propose questions and submission to the litigant or accused person,
who may put the same308. Therefore it would seem that at High Court level (in
Tanzania) a lay person, holding a valid power of attorney, can represent a party to the
proceeding while the party himself is present in court.

3.0 CRITICISMS ON THE RIGHT TO LEGAL REPRESENTATION

There is no right to legal representation in the Primary courts; in fact the advocates
are prohibited to appear there, as provided under section 33(1) of the Magistrate’s
Court Act309 that “No advocate or public prosecutor as such may appear or act for any
party in a primary court”, while there are bulk of case in primary court and some are
serious offences like robbery with violence, house-breaking, burglary, and theft which
are provided under the First Schedule of this Act.

308
This is discussed in the case of MIHAKA V POLICE [1991] 1 NZLR 54.
309
No 2/ 1984

109
People awareness is one of the criticism in the legal aid because majority of the
Tanzanians are not aware of their right to be represented in the courts though such
right has been guaranteed in the constitution of the United Republic of Tanzania of
1977 and other statutes (Reference to section 310 of Criminal Procedure Act and
section 3 of legal aid (Criminal Proceeding) Act, 1969). Apart from not being aware
also majority of Tanzanians do not know the existence of legal aid scheme like
Tanganyika Law society, University of Dar es Salaam Legal Aid.

Another criticism is that the right to legal representation is absolute given when the
accused is charged with capital offence but this creates discrimination to non capital
offences. The law requires such rights must be for the indigent ( Ref: Legal Aid
(Criminal Proceeding) Act 1969, this implies that the worthy persons are not entitled
to legal representation this is contrary to the rights granted to the Constitution, that all
person are equal and entitled without any discrimination to protection and equality
before the law. In DPP v ARBOGAST RUGAIKAMU310 it was held that an accused
person should not be deprived of his right to legal representation unless very cogent
and exceptional reasons exist which warrant the taking of such a drastic measure since
the accused person pray for that of representation on the reasonable time as was stated
in the case of JOSHUA NKONOK V R311.

Another criticism is on the party of economic barriers to an accused person. The

practice of hiring a lawyer involves expenses. Advocate expenses have been central in
any criticism of the legal representation. It is proposed that this service should be
offered to any body irrespective of whom or what he is, so long has is willing and able
to pay the appropriate fee. This is the position, despite claim that justice is not for
sale. However failure to pay the fee we mean withdrawal of legal services. This has
been shown in the case of R. v. LEMBA KISIWA AND OTHERS312, in this case
the advocate for the accused withdrew from the case because the accused who were
facing charges of robbery an offence punishable with imprisonment of between 30
years and life, did not pay his fees. From this position of the case we are of the view
that not everybody who needs legal services can afford to pay for them, in Tanzania,
majority of people will be eligible for legal representation if there is no strong control
of eligibility criterion in terms of income level and assets.

Another criticism is that, Legal Aid scheme seems to be bias. It is provided under
section 3 of the Legal Aid (Criminal Proceeding) Act of 1969 that legal aid is
provided to indigent accused person for all serious offences. This section is also
supported by the case of KHASSIM HAMISI MANYWELE V R313 where it was
held that “ in my judgment I said the right to counsel extends to all poor accused
persons for all offences which might attract a sentence of over five years
imprisonment”. Though the statute and case law show that the right to legal
representation is provided to indigent accused person for all serious offences but in
practice it is limited to murder and treasons while other offences like robbery with
violence , theft and forgery are excluded.

310
[1982] TLR 139.
311
[1978] LRT No 24.
312
Criminal Case No 387 of 1983, Arusha District Court.
313
Supra.

110
Moreover there is no sufficient number of lawyers to facilitate the service of legal
representation. Like wise most of the advocates are found in urban area and left the
rural or remoteness areas suffer the consequences.
4.0 CONCLUSION.

The right to legal representation has been guaranteed, and thus ought to be protected
in Tanzania and that provisions of section 310 of the Criminal Procedure Act and
Section 3 of the Legal Aid (Criminal Proceeding) Act ought to be Interpreted together
and in the light of the right to a fair hearing and right to personal liberty as provided
under Article 13(6) (a) of the constitution of the United Republic of Tanzania(as
amended from time to time) and Article 15(2) to mean that the right to legal
representation has been guaranteed both to those who can afford to hire an advocate
and those who cannot to hire an advocate and in the case of the latter their service be
paid for by the state. Moreover the lack of legal representation is enough to render the
decision of the case a nullity. This was the position in the case of MANYIMBA v
UGANDA314.

Though the right to legal representation is statutorily acknowledged as well as to case

law but in practice the right to legal representation is not absolute as it is not available
to all.

ALTERNATIVE ANSWER

OUTLINE;

1.0 INTRODUCTION.

2.0 THE LAW RELATING TO LEGAL REPRESENTATION.

3.0 CRITIQUE ANALYSIS OF THE RIGHT TO LEGAL REPRESENTATION IN

TANZANIA.

4.0 CONCLUSION.

5.0 BIBLIOGRAPHY.

1.0 INTRODUCTION.

The right to legal representation in Tanzania is recognized not only in various statutes
but also in the law of the land, the constitution of the United Republic of Tanzania,
1977, as amended from time to time (herein after referred to us the constitution). This
right has been ‘sine qua non’ in any society that uphold rule of law and guarantee
access to justice to each and every individual. It is upon this basis that it has been

314
[1969] E.A 433.

111
asserted that every person is entitled to call upon the assistance of a lawyer of his/her
choice to protect and establish his/her rights or defend him/her in all stages of
criminal proceedings.
This paper after its introductory part is going to analyze the laws relating to legal
representation in Tanzania, part III will involve the critical analysis on how the laws
relating to legal representation are implemented and whether legal representation is
achieved as provided for under the constitution and other laws, part IV will be the
conclusion and part V is the bibliography.

2.0 THE LAW RELATING TO LEGAL REPRESENTATION IN TANZANIA.

Every person has a right to be represented before the court of law. The right to
315
legal representation is a constitutional right , the denial of which is the denial of
justice. It is increasingly acceptable principle of fair justice that a fair trial or hearing
may imply having the service of, including representation by lawyer/advocate.

Statutes also provide for the right to legal representation. Section 310 of the Criminal
Procedure Act, 1985 which provides that;
‘Any person accused before any criminal court, other than a primary
Court, may of right be defended by an advocate of the high court…’.

This right is also provided in The Legal Aid (Criminal Proceedings) Act, 1969.
Section 3 of the act require an advocate to represent an accused person who has been
charged with capital offences such as murder, manslaughter, armed robbery and
treason. The costs are born by the government after certification by an authorized
person(s).

The Civil Procedure Code, 1966, also recognizes the right to legal representation.
Order III rule 1 of the code provides for the party to a civil suit to appear in court
either in person, by recognized agent or by an advocate.

It is thus concluded from this observation that in Tanzania, the right to legal
representation is recognized by law, denial of which will be the breach of law and
denial of justice.

3.0 CRITIQUE ANALYSIS ON THE RIGHT TO LEGAL REPRESENTATION IN

TANZANIA.

The right to legal representation, in Tanzania and in many jurisdictions a public right
aimed to be exercised to all subjects regardless their socio, economic or personal
status. It is an acceptable principle of fair justice that every person has the right to be
represented by counsel whenever he needs such representation.
To make possible the application of the right, the government shows efforts on
implementation of this important rule of fair justice. Being a statutory right, a person
is guaranteed to have the right short of which he/she can claim for the breach of

315
Article 13 (6) (a) and (d).

112
his/her right. The remarkable example is the provision of free legal aid to those facing
capital offences316, the government bearing the cost of the same.
Our courts have also recognized the right to legal representation. In the case of
Khassim Manywele v. R317, the High Court gave the status of the legal representation
by an advocate the status of human right under the constitution. The court inferred the
right from the provision of article 13(6)(a) of the 1977 union constitution.

In Almas Kalumbeta v. R318, it was the court’s conclusion that legal representation is
a universally recognized right provided by the law, citing section 190 of the Criminal
Procedure Code319.

It has been the court position that in appropriate case, the effect of lack of legal
representation is the nullification of the trial altogether. Mr. Justice Russel in the case
of Manyimba v. Uganda320 put the position clear that the mere fact that the accused
was denied legal representation was enough to render the trial nullity.
The case of Yusuph Gita v. R321 the court held that every accused has the right to be
defended by counsel, and quoting the cases of Kingston v. R322 and Galos Hired and
Anor v. R323 as authorities, that if an accused id deprived of that right through no fault
of his counsel and a conviction follows, the conviction will be quashed on appeal.

Supporting the State and courts, there are organizations and institutions, which
establish programs aimed at providing legal aid to indigent people. These includes the
Tanganyika Law Society, Shirika la Uchumi la Umoja wa Wanawake wa Tanzania
(SUWATA), Tanzania Women Association (TAMWA), The Legal Aid Committee of
the Faculty of Law (UDSM), Tanzania Women Lawyers’ Association (TAWLA), and
The Legal and Human Right Centre (LHRC).

Having all these efforts in support of the right to legal representation, we turn to the
question, whether on provisions of these the majority of people, especially those
having no means are likely to access the right to legal representation. There come
restrictions on provision of the right. It is not always possible to say that every person
is in a position to call upon the assistance of a lawyer of his choice of his protection
and establishment of legal rights.

 The majority of those in need for representation are poor. It is hard for many
to seek representation from the legal practitioners. They are so expensive
regarding the economic conditions of the majority. To cover this, legal aid
schemes were introduced. These schemes however have restrictions. Initially,
to be entitled to legal aid, there are three tests, means test, merit and interest of
the case. The government aid under section 344 of the Legal Aid (Criminal
Proceedings) Act, 1969 is limited to those accused with capital offences.

316
Section 3 of The Legal Aid (Criminal Proceedings) Act, 1969.
317
(1985) TLR
318
(1982) TLR 329.
319
Now repealed and replaced by the Criminal Procedure Act, No of 1985, section 310.
320
(1969) E.A (U) 433 at p. 439.
321
(1959) E.A. 211.
322
32 Cr. App. R. 183.
323
(1944) A.C 149.

113
 Under this law, it is upon the satisfaction of the certifying authority as to the
economic capabilities of an accused person.
In some instances, persons accused with capital offences were refused legal
aid on the ground that they have means to find representatives on their own. In
Mohamed s/o Salim v. R324, appellant was convicted of murder by the High
Court. The committing court after examining the accused as to his means,
stated that as the appellant had ten head of cattle, he should not have legal aid.
Neither the Registrar nor the judge made an independent judgement on the
matter as certifying authority.

 There is still another limitation, even if the aid will be open to all. The state is
not capable to undertake the burden. The economic situation in most of the
developing countries makes the exercise a impossible. Maina325has this to say
on this;
‘Developing countries are moving are moving in a vicious circle. On the
other hand there is immense poverty. People cannot make ends meet and their very
existence as human beings is totally threatened. Hence some turn to petty and even
serious crimes. The unlucky ones are caught by the long arm of the law. They cannot
afford to hire legal counsel to represent them and hence they turn to the state, which
is obliged under the constitution to provide these poor accused persons with legal
assistance. This circle is not easy to get out of.’

It cannot be contended that the right is available to all, and much impossible that
everybody can choose the representative of his/her choice. In a legal aid, one is not
given an opportunity to challenge the competence of a practitioner he/she is given
since the opportunity is not a choice but a grant.

 Apart from the lack of adequate financial resources, there is also the issue of
availability of trained legal personnel. Even if the state will be able to provide
legal aid to all the poor accused persons, it is not easy to find lawyers for all of
them. The number of lawyers and people capable of giving legal advice is very
low, being among the factors resulting in unaffordable costs in provision of
legal services. Having limited number of practitioners, it is openly untrue to
contend that everybody can have the lawyer of his/her choice.

 Location of law offices/ distribution of lawyers/advocates is yet another

problem. Many practitioners centred themselves in cities, and as a study in
Tanzania, many are located in Dar es salaam (85%). In 1997, as Dr.Fauzi
observed, in a country with an estimated population of more than 2.7 Million
people, there were only 193 advocates in full-time practice, besides their
distribution among the country’s population is so misbalanced that Dar es
salaam had 127 full-time practitioners, whereas in some regions there is not a
single advocate available.326

 Other restrictions are imposed by courts. Its through decisions of the courts
that an accused person in need for representation can only be protected if he
has himself acted reasonably.
324
(1958) E.A.202.
325
C.P Maina, p.341.
326
Dr. F. Twalib, p.7.

114
 The case of Yusuph Gitta v. R327 is a good example. In the case, the accused, who
was on bail, was notified of the hearing date about a month earlier. When the case
came up for hearing, the accused produced a letter from an advocate in which the
advocate requested an adjournment because he was engaged in another court in
that day. The magistrate refused an adjournment and the case proceeded to
hearing. On appeal, it was argued that miscarriage of justice was occasioned on
the magistrate’s refusal to adjourn so as to enable the appellant to be legally
represented. On the issue the appellate court held that in the case, it cannot be said
that the appellant was deprived of the right to be represented by the counsel
through no fault of his own. The court saw it as appellant’s failure to instruct an
advocate and a contributory cause being the advocate’s failure to do his duty to his
client.
In another case of Joshwa Nkonoki v. R328, which quoted Gitta’s case with
approval, the accused was released on bail and the hearing dare was fixed and
when the trial started, the appellant did not indicate to the court that he intended to
have an advocate till after the first prosecution witness had given evidence. The
appellant’s application was refused and the hearing proceeded. Mzava J stated;
‘His application for adjournment of the case so that he could employ an
advocate was clearly unreasonable taking into account the fact that the Republic
had already incurred a lot of expenses in calling witnesses from distant areas and
the State Attorney had traveled all the way from Dodoma to prosecute the case…’.

Where an accused person has expressed an intention to engage an advocate to defend

him and there is no reason to suppose that he is acting mala fide, the court must give
him every opportunity to do so and may, adjourn the trial to another date. There it can
be said that accused has been given the right to be represented by the one he choose.

 It was also an observation and the fact that majority of individuals are
illiterate. Many people are not educated, leave away having legal education.
Even if the right is there, people do not know their rights, thus even if
provided, it is of no meaning. Many people especially in rural areas do not
know the provisions of legal aid and many afraid to be involved in court
actions for they view it as having ‘owners’.

4.0 CONCLUSION.

The right to counsel is not an entirely new phenomenon. It is part of what is perceived
by various societies as justice. Over time, it has spread all over the globe as part of
welfare and also as an essential part of access to justice. This right is not limited to the
well, who can afford to hire the services of a lawyer, it extends to the poor too.
Although it is not easy to meet the demand if all, it has to be applied whenever
possible and with necessary means so as not to take away substantive rights of
victims.

327
(1959) E.A.211.
328
(1978) LRT n.24.

115
BIBLIOGRAPHY

CONSTITUTIONS

The Interim Constitution of 1965

The Government of Tanzania, (1998), The Constitution of the United Republic of

Tanzania 1977, The Government Printers, Dar es Salaam

STATUTES

The Tanzania Government of, the Advocates Act (cap 341 R.E 2002) the
Government Printers, Dar es Salaam

The Tanzania Government of, the Constitutional Fifth Amendment Act 1984, the
Government Printers, Dar es Salaam

The Tanzania Government of, the Constitutional (Consequential Transitional and

Temporal Provision) Act, 1984, the Government Printers, Dar es
Salaam

BOOKS

Binamungu, C.S and M.C, Mukoyogo, (2005), Studying Law Skills: A Guide for
Beginners in Law, Mzumbe Book Project, Mzumbe.

Twaib, F, (1997), the Legal Profession in Tanzania: The Law and Practice,
Bayreuth African Studies, Bayreuth

INTERNET MATERIALS

http://www.alabar.org/ogc/ropc/rule3-4.htmlI

http://www.mifsudbonnici.com/lexnet/articles/index.htmlI

116
ENVIRONMENTAL LAW QUESTIONS AND ANSWERS.

QUESTION:
Define environmental impact assessment explaining in brief the international
community response to the same
Does the law and practice in Tanzania adequately respond to the requirement of
environmental impact assessment.

OUTLINE

I.O INTRODUCTION

2.0 MAIN BODY

2.1 International Community Response

2.2 Response of the Law and Practice in Tanzania to the Requirement

of EIA

2.3 Law and Practice

2.4 Constraints of EIA

4.0 CONCLUSION

INTRODUCTION

The term Environmental Impact Assessment herein below referred as EIA is

describes as a process which produces a statement to be used in guiding decision
making relating to environment. The term is also defined as a technique for
ensuring that the likely significant effects of new development on the environment
are fully understood and taken into account before it is allowed to go ahead329.

In the case of FRIENDS OF THE OLDMAN V.CANADA ‘et al’330 EIA is in

its simplest form, a planning tool that is now generally regarded as an integral
component sound decision making….As a planning tool it has both an information
gathering as decision making component which provides the decision maker with
an objective basis for granting or denying approval for a proposed development.

The term has also been defined as a tool used to identify the environmental, social
and economic impacts of a project prior to a decision-making.331
It has also been defined to mean a systematic examination conducted to
determine whether or not a programme, activity or project will have any adverse
impacts on the environment332.

329
J.Zetter, Policies for Creating Environmentally Sound Industries in
http://www.gdrc.org/uem/eia-zetter .html
330
(1991)
331
UNEP-DTIE http://www.gdrc.org/uem/eia/define.html
332
Section 3 of the Environmental Management Act No 20 of 2004.

117
 It has several relating functions such as: it provides information to decision
makers on the environmental consequences of proposed activity; it requires
decisions to be influenced by such proposed information and also provision of a
mechanism ensuring that there is full participation of person’s potential affected
by the proposed activity in decision making process.

1.0 MAIN BODY

2.1 INTERNATIONAL COMMUNITY RESPONSE:

EIA is well recognised and accepted in the international level that the nation states
in the International Convention have come with principles to that effect. In the
international level it is recognised by Principle 2 of the Stockholm Declaration
which states
“The natural resources of the earth, including the air, water, land, flora and
fauna and especially representative samples of natural ecosystem, must be
safeguarded for the benefit of present and future generation through careful
planning or management, as appropriate”

In its recognition also the Rio Declaration on Environment and Development

under Principle 17
“Environmental impact assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant adverse
impact on the environment and are subject to a decision of a competent
national authority”
In the international level provisions in relation to EIA started to be reflected in the
provisions of legislation of developing countries during the 1970s shortly after the
United States enacted the first EIA law, the National Environmental Protection
Act of 1969.Throughout the 1980s more countries decided to establish EIA as an
element of environmental law. Since 1990 the pace of legislative activity on
environmental issues has quickened and the number of countries in the EIA has
increased significantly333

From the above explanation it can therefore be said that, the international
community has responded positively to the environmental impact assessment
concept in such a way that there have been several treaties dealing with the same.

2.2 RESPONSE OF THE LAW AND PRACTICE IN TANZANIA TO THE

REQUIREMENTS OF EIA

In Tanzania prior to 1997 there was no law or policy regulating environmental

protection, the country was operating on fragmented environmental sectoral
policies which were poorly coordinated and there was no uniform standard. The
concept of EIA is linked to environmental policy. The concern for EIA in
Tanzanian policies emerged in a document on National Conservation Strategy for
Sustainable Development (NCSSD). The focus on this could be reflected back in
1993 as a result of changes which were taking place globally and which

333
G. Paoletto,Lecture Notes on Environmental Impact Assessment p1

118
 influenced the development of national strategies for sustainable development.
Thus NCSSD became the first post Rio National Initiative to clearly stipulate the
need for EIA.

In 1997 there was the National Environmental Policy, 1997 which recognised and
reiterated use of EIA as one of the policy instrument aimed at achieving
environmentally sound development. The policy states that EIA as a planning and
designing tool shall be used to integrate environmental considerations in the
decision making process in order to ensure that unnecessary damage to the
environment is avoided. The policy was to the effect that it shall be a mandatory
requirement to ensure that environmental concerns receive balanced consideration
in reconciling urgent development needs along side other economic, technical and
social aspects, while at the same time ensure long term sustainability before the
final decision is made.334

Before embarking to the entire question on the law and practice of EIA in
Tanzania it is better to start by looking its importance.

EIA is concerned with identification, prediction and evaluation of impact both

beneficial and adverse that may arise from the proposed development and
proposed mitigation measures and enhancement option for negative and positive
impacts respectively. It is not about to reject projects but the programme aimed at
protecting environment by putting some restrictive measures for the purpose of
protecting environment. It involves practices such as social and health impact
assessment.335

Tanzania since 1986 had undergone some economic and policy reforms. It should
be known that Tanzania is one of 15 countries of the world which is the hotspots
of global biodiversity, the reforms has made it possible for investors to invest in
our country. For example, having abundant resource such as minerals, land, forest
and fisheries environmental degradation is on the high side such as pollution and
loss wildlife habitat and biodiversity, deforestation and land degradation. These
problems often associated with the pursuit of short time gains. By employing EIA
can help the country integrate short term needs and long term goals by focusing
sustainable objectives.

Another importance is that, structural adjustment programmes are carried on in

response to crises. In the process therefore important social and environmental
issues overlooked. Therefore EIA can be useful in bringing out negative and
positive aspects of the reform measures.

EIA is useful in addressing transboundary issues that may arise fro implementing
the initiatives. For instant, Ewaso Ng’iro (south) river multi-purpose project in
Kenya. Tanzania felt that the proposed development in Kenya would have
significant impacts on Tanzania thus the use of EIA was taken as appropriate to
prevent environment. In addition EIA is important in addressing project

334
G, Mwamsojo, EIA Practice in Tanzania: Lecture notes to students at the UCLAS p.1, see also
National Environmental Policy 1997, chapter 4
335
These social and health impact assessment have been reflected under section 103 of the
Environmental Management Act, 2004.

119
 alternatives as it may facilitate in determination of how resources can be utilized
in sustainable ways.

EIA is also important as it can help planners and developers avoid resource
conflicts with other stakeholders and increase project acceptability. Too often,
projects have been developed without considering the real demands of the
communities. This has not only resulted in the loss of resources but also undue
conflict, when local community fails to identify themselves with the proposed
project336.

2.3 LAW AND PRACTICE

Formally, Mining and Marine Parks and Reserves have established legislation that
stipulates requirements for EIA in their respective sectors. Other bodies have
established mechanism that guides developments by enforcing compliance to the
use of EIA in the development activities. Although there are few legislation to that
effect, many bodies have adopted voluntary compliance as opposed to reacting to
legal requirement. Therefore, the enforcement and compliance is very crucial in
promoting the use of EIA whether being it legal requirement or as a result of
voluntary compliance of EIA.

The Marine Parks and Reserves Act of 1994 calls for an EIA to be conducted for
the proposed activities in Marine Parks in accordance with regulations made under
this Act. It prohibits certain land allocation or uses without a proper EIA.
However, the Act suffers from several weaknesses including lack of provision for
procedures and opportunity for stakeholders to participate in the EIA. The same
problem is with the Mining Act of 1998 which despite the fact that it advocates
for the EIA but does not specify how stakeholders will be involved and what is the
relationship between mining sectors and other sectors.

Although, the two legislation above are in support of EIA, they are largely sector
based and limited in scope because of this they are likely to conflict with other
sectors which have no sectoral legislation for EIA. The anomaly however have
been noticed by the government hence the enactment of the comprehensive
environmental legislation therefore the enactment of the Environmental
Management Act No 20 2004, herein below is referred as the Act. Under the
Act section 81(1) provides for the obligation to take EIA. In this particular
provision pursuant to the third schedule of the Act have to abide with the
regulation made by the minister before starting the project or undertaking any
development.

The constrains of lacking the legal backing was experienced for long time, as
Good love337 said EIA was left to be optional and not a requirement in the law
thus proponents were left at liberty to disregard environmental concern
associated with the development. But the law and practice after the enactment of
the Act has changed the situation. Section 81(2), provides for mandatory
requirement for the study of EIA before commencing or financing the project or
336
The good example was proposed Rufiji Prawn Farm Project in Tanzania where the developer secured
support from the Government and ignored local community concerned.
337
G. Mwamsojo, op cit, p 8

120
 undertaking. Further under section 81(3) it emphasised for the attainment of the
licence and permit before undertaking any project. The waiver of this requirement
is not allowed under any law and any contravention with this provision is an
offence under Section 81(4).

Minister has power to make regulation and guidelines on how EIA shall be
conducted. The new enactment (the Act) further, under section 83(1) provides for
the fact that, this EIA to be conducted by the experts.338 The law provides for the
regulations and need to have experts thus solving the problem of enforcing EIA
requirements without having experts.

Under section 85 of the Act, the law has given power to the Council to determine
the scope of the environmental statement basing on prescribed issues to be
addressed, persons and institution who are to be consulted in preparation of the
statement, methodologies and approaches in collecting and analysing the required
data among other matters important in determine the scope of the environmental
impact statement.339

The law340 in Tanzania also has adopted guidelines on public participation on

matters which are likely to be affected by the proposed project being the subject of
EIA study. This is the way where public directly participate in giving their opinion
on the EIA study. In addition to this the Council as provided under the law 341 can
ensure participation of people in the review of EIA through public hearings.
However, in doing this the Council is required to display and make available for
inspection and copying all relevant reports, documents and written submission
made during and after the period of review until the public hearing is finalised.
The council has to convene such public hearing within 30 days after receiving the
EIA.

Under section 93 of the Act, the minister has been given power to recommend to
the licensing authority not to grant the licence if the project to be undertaken may
cause wide adverse impact to the environment, if there are no alternative means
which can mitigate or remedy the harm to environment, or if the proponent has
failed to abide by the measures stated in the environmental impact statements or in
case there are social, economic, health, cultural or religious reasons that may lead
to irreversible impact on the society.

However, the law has given an opportunity to any aggrieved person by the
decision of the minister to approve or disapprove Environmental Impact Statement
to appeal to Environmental Appeal Tribunal. This is provided under section 95 of
the Environment Management Act.

338
Under section 83(2) of the Environmental Management Act states that under the regulation made
by the minister the qualification of a person who may conduct EIA are stated. Also the register of
experts and firms of experts authorised to conduct EIA has to be kept by the Council.
339
Under section 85(2) Environmental impact statement has to be put by the council in public registry
and their contents may be searched on fulfilment of prescribed fee.
340
Section 89 of the Environmental Management Act.
341
Section 90 ibid

121
 Where there is likelihood that there is significant impact on the environment then
the Council shall be responsible to carry out environment auditing in respect of
undertaking or project342. The law has authorised the environmental inspector or
other authorised officers to enter into any land and conduct an inspection to see
whether the activities carried on are in conformity with the Environmental Impact
Statement. However a notice has to be served first before the inspection 343.

Despite the fact that the provisions of the Act under this part provides that the
requirements of EIA have to be fulfilled, the minister further may require any
person whose activities are likely to have an impact on environment to make a
statement on the social, health, biotechnology, or any other risk impact assessment
he may determined.344 What is apparent under the environmental Management
Act is that apart from providing the elaborate provisions on the EIA and how it is
exercised, the law further extends to health and social problems resulting from
environmental problems hence put in the category of EIA.

2.4 CONSTRAINTS OF EIA

Before the enactment of the Act, EIA could not fulfil most of its objectives as the
laws prevailing hitherto were lacking because of being confined on specific
sectors. Taking example of the Mining Act of 1998 and Marine Parks and
Reserves Act of 1994, these laws were purposely enacted to cater for the demand
of their respective sector. However after the enactment of the new law the Act cut
across different sectors therefore provides for the somehow explicit enactment on
the management of the environment particularly matters related to EIA. Thus the
number of problems which prevail before the enactment of this law were to some
extent reduced. Basically, the following are the remaining constraints after the
new enactment of 2004:

Inadequate awareness on the value and usefulness of EIA among the developers,
politicians, managers, planners and the public. These groups of people having
little understanding on the concept or some groups being equipped with the
knowledge have created a kind of failure as there is the crossing idea on the
concept of EIA.

Inadequate technical capacity or EIA skills. EIA as an element of environmental

policy is the recent invention which owed its origin from 1970s and gain
popularity in 1980s. That being the case therefore, it has been difficulty for the
public to acquire knowledge and technical skills on EIA hence the constraint.

Inadequate human and financial resources at all levels. As it is stated by the law
that there should be experts to conduct EIA it has been difficulty to have adequate
human resources. Being the recent invention the financial problem has been
obvious especially for the developing countries hence the constraints.

Timing for integration of EIA in the project cycle. It is good that EIA is carried
out before a proposed project or activity starts taking place that is not only good
342
Section 101(1) ibid
343
Section 101(2) ibid
344
Section 103 ibid

122
 practice but also best environmental management too. Thus identification and
disclosure of environmental consequences of proposed development actions has to
be revealed at the earliest stages in the project cycle as they influence in planning,
designing, implementation and management of the project. Conducting it earlier
is essential as there is a chance to make between alternative causes of action.
However, experience has indicated that EIA is regarded and conducted as a
separate technical exercise carried at late stages of project cycle and most plans
has been finalised hence little or no room to consider alternative and only serves
merely as a rubber stamp as they do not influence project design and decision.

2.0 CONCLUSION.

The environmental management in many countries especially the developing

countries is achieved not only through environmental legislation but also through
administrative provisions such as administrative orders which are applied through
administrative mechanism. Likewise for the issue of EIA it has to take sometime for
the program to have the notable achievements in the developing countries. The idea
being the recent one and the one which requires experts in its success need the society
to adopt it slowly. Although progress in adoption EIA in Tanzania has been very
slow, there is an increased understanding of the value of the program. while Tanzania
is in the world of globalisation as it is attracting investors to invest in different sectors
of development it has to be taken as an advise that the wind of investment and
privatisation need not to endanger our environment which is the backbone and
livelihood of Tanzanians.

Qn:
The command and control system has been the back bone of environmental protection
system in most jurisdictions for a considerable time.
Discus the development of the command and control system and its merits
particularly identifying perceived failings and improvements to the system which
either have already been made or which might be made in the future.
To what extent do you consider alternatives such as economic instruments or
voluntary measures to be viable answer to the perceived failings of command and
control regulation.

OUTLINE
1.0 INTRODUCTION

2.0 MAIN BODY

- concept of command and control

- improvements and failures of command and control
- the concept of economic instrument and voluntary measures as the
substitute to the command and control system

3.0CONCLUSION

BIBLIOGRAPHY

123
 INTRODUCTION
Environment simply means everything that makes up our surroundings such as
air, land, water, flora and fauna, industries among others. The development in
industries, poor exploitation of natural resources and environment
management has resulted into high level of environmental degradation. This
was because previously effects of environmental degradation were considered
to be temporary and affecting only some part of the world, but in his words in
2003 World Environment Day Mr. Koffi Annan345, described the global
environmental problem in the following words;

“All parts of the world are affected. Last year’s draught in Australia
was worst in more than a century, during which million of tonnes of
productive top soil blew away in dust storms, crippling crop
production and export. Every year in India, dry spells and deforestation
turn 2.5 million hectares into waste land, while elsewhere in Asia;
sandy storms are becoming a growing threat to the economy and
environment. Some 70 per cent of all land in Mexico is vulnerable to
desertification, prompting 700,000 to 900,000 Mexicans to leave their
home every year in search of a better living as migrant workers in the
United States. But nowhere the problem of desertification more acute
than in Sub-Saharan Africa, where the number of environmental
refugees is expected to rise to 25 millions in the next 20 years.”

The statement by the Secretary General of the United Nation is diverse as it

has affected large part of the world. The problem is due to human activities
and that is why Anthony Chekhov346 a renowned Russian dramatist and short
story writer warned mankind against environmental degradation. He said

“Human being has been endowed with reason and creative power so
that they can add to what they have been given. But until now they
have been not creative, but destructive. Forests are disappearing, rivers
are drying up, wild life is becoming extinct, the climate’s been ruined
and every passing they earth is becoming poorer and uglier.”

Because of the notable problems on the environment international community

and nation states in their capacity have joined and initiated several measures to
curb the problem. One of such measures is the use of command and control
regulations also known as direct regulations and alternatives there in namely
economic instrument and voluntary measures347.

MAIN BODY

From the question given it will be wise to start with explaining on the
concept of command and control there after deal with the merits particularly
identifying perceived failings and improvements to the system which either
have already been made or which might be made in future to address these
345
Found in the article by B. A .Samatta, “Judicial Activism and Access to Environmental Justice”, in
The East African Lawyer, October 2003 Issue 5 p 30
346
Ibid
347
These are also known as Regulatory Approaches and Compliance

124
 failings after which we shall give our considered view on the extent on which
alternatives such as economic instrument and voluntary measures as to
whether are viable answer to the perceived failings of command and control
regulation.

COMMAND AND CONTROL

Direct regulation (command and control) is an approach which consists in

making the addressees of the law behave in the way one wants them to behave
by way of direct and detailed prescription of the desired behaviour. 348It is a
model where by centralised environmental standards are set and policed by a
combination of government and regulatory agency. It makes use of traditional
environmental legislation. The operation will require permit from the public
bodies before they undertake activities likely to have impact on environment.
It is administrative formality most of environmental statutes have been based
on command and control.

Command and control has the following features such as; requirement to
obtain licence before operating in this feature licensing authority have
discretion to grant or refuse to grant licence on top of that the authority has
power to revoke the licence, the licence normally will contain the condition
under which the operation can operate and standards as to what extent the
operator can pollute the environment as well as the techniques which can be
used.

The regulatory authority has power of inspection and enforcement. In this case
the licence for logging will be inspected. Because the direct regulations are
made by statutes failure to adhere may cause the operator to incur criminal or
even civil liability.

Clean up powers. Where somebody has polluted environment may be required

by the authority to clean environment example the Merchants Shipping Act
requires owners of ships to clean up sea after polluting it, if not to clean up
physically to provide costs to clean up.

Corporate officers may face personal liability if the Banks advance the loan to
companies and the loan used to pollute the environment the Bank may incur
liability this is for the case in England. The banks in England there fore are
taken as shadow directors thus it has to direct the company on how to use the
money obtained from the bank as credit in case the bank lend s a vast amount
if money to the company.

Appeals (operators / businesses refused permit are afforded opportunity to

appeal. Also operators are at liberty to apply for references).
In most jurisdictions appeals go to ministers; in some like Australia to a
special environmental court349.

348
G.luble’wolff,Efficient environmental legislation and on different philosophy of pollution
controlling Europe,vol 13 no1 Journal of environmental law 2001 p 79
349
Section 95 of Environmental Management Act talks of the tribunal to hear grievances arising out of
the refusal to grant the permit to start project for the ground of Environmental Impact Assessment.

125
 IMPROVEMENTS OF COMMAND AND CONTROL
The following are the improvements which have been acheved by the system
of command and control so far:
It delivers clear instruction to the community and industry on what is expected
in delivering best environmental outcomes. This also goes hand in hand with
the requirement of the system to be involved in examining the project form the
time it is initiated.

It is within the ambit of public domain thus being in this way the local
authority or state may give advice for free in the form of free education on
how environment can be protected. The local government will work a6t the
local level where education will reach the public at the grass root and the state
will usually operate at the central government level using the media to provide
education which ultimately will reach the public.

Public control creates the feeling of responsibility to the ruled and the rulers
because obedience is easily achieved. For instance the public is likely to pay
respect and obey the orders given by the police compared to the respect
availed to the orders from the auxiliary police.
Centralised authority makes it easy to attend environmental problems
whenever they happen.
The above improvements have been achieved by the principle of command
and control therefore apart from those improvements if the system will add
some other improvements it will be viable for governments to opt the system
of command and control.
FUTURE IMPROVEMENT

Integrated society on the maters of environment will achieve to express the

requirement of the recognised sustainable development there fore the society
will appreciate the growth of on the dangers facing international environment.

In the operation of the system the governments in their arrangements they

have to consider the inventions and innovations taking place globally this
consideration will make the system not a bar towards technological
development.

To make the system be appreciated in the future it is of paramount

importance that the review of the penal sanctions directed to the operators of
industries not to be taken as prejudice to them. This is because most of the
offences created by the system of command and control are strict offences or
absolute offences that are with strict liability in these offences there for it is
better for the regulators to consider the intentions of the polluters.

The future improvements suggest that the statutes establishing the offences
should provide higher fines for those who are found guilty of the offences

Under section 204 of the Act the tribunal is established with the name of Environmental Appeal
Tribunal.

126
 under the established law. This is to deter other persons who are about to or
have the intention of polluting the environment.
Also in future the system has to be modified in a way that it covers the broad
area of pollution than the existing system where by only certain types of
pollution are covered.

While the regulators have discretionary powers in granting licences there

should be a mechanism in which the regulators are guided so as not to abuse
the discretionary power.

FAILURES OF COMMAND AND CONTROL

Command and control has low incentive to innovate. by specifying the
technology to be used this will reduce incentives to innovate for instance if
under command and control the owners of the industries and other technicians
are working under a certain limitation on the improvement of the prevailing
technology on the ground of environmental protection it is likely for the
industrialists and technicians to hesitate on matters of innovation and
invention fearing to operate beyond the prescribed limitation.

There is a problem with the use of penal sanctions where there is the
infringement of legal requirement most of these penal sanctions are strictly
without the prove the mens rea.this with the object to prompt operators too do
all in their power to avoid penalty may expose the operators to expensive
burdens of preventive nature. Even if the burdens are assumed, liability may
still be imposed if a polluting incident occurs.

Direct regulation may be expensive. It is argued that the money spent on

implementing legislation could be better to be spent on educating and advising
operators350

Penalties and fines are sometimes in the low side. Big firms motivated by
economic profit may disobey the law when the anticipated fine and the
probability of being caught are small in relation to profits to be gained by
disobedience. For instance if someone put a blaze mount uluguru then found
guilty if the fine to be paid is 1,000 ,this will not stop the habit.

The system is dealing with only certain types of pollution. Does not take
account of displacement of pollution from one medium to another. Partially
addresses the fact that various elements which make up the environment can
not be isolated and dealt with separately. This call for the need of more
integrated approach to ensure that the regulatory system do not simply transfer
pollution from one medium to another.

Discretion on part of regulators is argued to be a problem as it may lead to

regulatory capture. The regulators may exercise such discretion arbitrary or
unreasonably. Example popular company may face the regulatory authority
hence favour the company.
350
Education however will be of success especially in some parts of the world where there I less
literate percentage o population. Also on the issue of expenses the system of command and control is
expensive in the course of administration.

127
 System of command and control is reactive rather than proactive. Segmented
legislation which is reactive to various environmental problems thus dealing
with a certain kind of pollution.

From the above identified failures of command and control it has been taken
by the economist and other opponents of the system to come up with the
alternatives which according to them will be the supplements or rather
replacement of direct regulation the known ones being the economic
instruments and voluntary measures in which even the public is directly
involved in the protection of the environment. and for this reason we shall
herein below deal with the alternative system so as to know as to ow thy cure
the failures of direct regulation.

ECONOMIC INSTRUMENTS

These are all approaches which seek to use prices or economic incentives and
deterrence to achieve environmental objectives example imposing high taxes
on items that destruct the environment, lowering the prices on the items which
are environmental friendly. The use of economic instrument is based on belief
that in the market can be used to provide incentive to guide human behaviour
which is supported by the state.

Economic instruments can be categorised in several ways; such as charges and

taxes, subsidies and grants, use of default refund system of deposit refund
system, the use of marketable permit and enforceable incentives.
Charges and taxes

These creates an incentive for polluters to limit the activities which can be
harmful to the environment example of wastes, excessive use of natural
resources in which the government may raise the fees for licence or tax may
be raised .also wastes collection charges may be raised so as to reduce the
waste production.

Subsidies and Grants

Grants for lawful subsidies example subsidies for production example

improving agricultural products or deliberate compensation by government for
environmental activities.

Deposit refund scheme

This requires a deposit to be paid on potentially polluting products such as

battery and bottles. The return of residual product is intended to avoid
pollution and is compensated by the refund of a deposit. For example if one
buys a product say a soda and deposit money the money will be refunded
when the bottle is returned. Example in the case of EUROPEAN
COMMISSION V DENMARK351 where by the Danish law requires

351
(1988)ECR (DENISH BOTTLE CASE)

128
containers to be returned was challenged by European Community as being
against free market economy the court agreed with the Danish procedure of
deposit refund.

Tradable permits/marketable permits

This involves tradable quarters example the regulatory authorities may specify
for a total emission for a particular areas .companies may be invited to take
quarters to pollute. This is used in USA and UK where by it creates a market
and right to pollute. The company with quarters to pollute may sell their right
to potential polluters this happens when all of the quarters have been bought
by the polluters. The authority will just advise polluters to go and buy the
quarters from the companies with high percentage of quarters which they can
not pollute by themselves

Enforcement Incentives

This includes inspection to determine the compliance status of the regulated

community and to detect violations; negotiations within individuals or
managers of industry (operators) who are out of compliance to develop
mutually agreeable approaches for achieving compliance; and legal action,
where necessary, to compel compliance and to impose some consequences for
violating the law or posing a threat to public or environment.

HOW ECONOMIC INSTRUMENTS ARE VIABLE ANSWERS TO

THE PERCEIVED FAILINGS OF COMMAND AND CONTROL

Economic instrument are said to be viable answers to the perceived failings of

command and control through its advantages. The following advantages have
been taken to be the cure of mischief’ of command and control.
Voluntary behaviour is one among the advantages where by it is mostly
preferable to legal compulsion as people voluntarily decide to clean the
environment without being forced by any one this makes it the viable answer
to the command and control.
Market mechanism is another advantage. It allows direct public participation
in the form of consumer choice. Example if a tax is levied very high, the
consumer will shy away from it hence viable answer to perceived failings of
command and control.

More over market mechanism may be cheaper for private firms than
compliance with direct regulatory requirement and cause economic instrument
to be the viable answer of the perceived failures of command and control.

Further more Economic instrument are said to be viable to the perceived

failings of command and control as market mechanism expose the
environment costs and benefit transactions economist consider environment
test as external when used to protect the environment thus they say that it is
externalised.

129
 Decision taken by firms in the market place may be better in form than the
decision taken by public officials.
Lastly economic instruments are said to be viable answer to perceived failings
of command and control because it can raise revenue that can be used to clean
up the degraded environment.

VOLUNTARY MEASURES

These include environment management system, environment agreement and

environment reporting.

HOW CAN EACH VOLUNTARY MEASURE BE A VIABLE ANSWER

TO PERCEIVED FAILINGS OF COMMAND AND CONTROL

Environmental management system:

This makes the use of management standard to measure environmental

standard at performance of various forms and provide bench mark for future
action or improvement the systematic environmental management is backed
by a specified procedure which provide methods at a formal and a system of
verification. This is said to be a viable answer to perceived failings of
command and control because the company sets the standards to be achieved
and after setting it, refers to the environment Management (public authority)
which issue the certificate.

Normally the public will set the minimum standard to be achieved and the
performance will be measured against it so that the company knows much on
their pollution. International standards can be used like 150 (international
standard organisation and particular countries may have its own standard (e.g.
TBS in Tanzania) which may require their company to publish a yearly report
on environment which is to be inspected by a board independent.
Environmental agreement:

These are agreements between states and industry requiring environmental

protection over and above that set by direct regulation. The government may
enter into agreement requiring the companies to operate and protect the
environment but which is beyond the commend and control standards and this
is done voluntarily. This is said to be a viable answer to the perceived failures
of direct regulations because the system focuses on specific environmental
problems and it is used to solve multi international environmental problems.
The pollution to the properties or persons of another territory could avoided by
the signing of the agreements which will state the conditions to be reached to
avoid environmental disturbance. In the case of US V CANADA popularly
referred as Trail Smelter case352. It was stated that
“Under the principles of international law…no state has the right to use
or permit to use of its territory in such a manner as to cause injury by
fumes in or to the territory of another or the properties or persons

352
(1938 and 1941) 3RIAA 1905; 35 AJIL 684 (1941)

130
 therein, when the case is of serious consequence and the injury is
established by clear and convincing evidence”.

The above case was due to poor arrangements by two neighbourhood

countries on the matters of environmental protection. Where there is
agreement between nation states the litigation of such nature are likely to be
avoided.

Also implementation of environmental agreement is democratic as compared

to environmental management system. It may also provide incentives to
operators example reduction of tax payments.

Environmental reporting or environmental information;

This is a technique for acquiring environmental information it is defined as

data, statistics and other qualitative and quantitative materials that decision
maker requires to access conditions and trends in the environment; to
determine and adjust policy direction and to invest funds.

Environmental information allows decision makers to analyse cause and

effect; to develop strategies for acting, to manage natural resources to prevent
and control pollution and to evaluate progress made towards goals and targets.
This is said to be the viable answer of the perceived failing of command and
control as it allows mitigating measures to be taken when individuals or
government get such information.

Also it is important as it ensures the participation of citizens in national

environmental protection internationally; environmental influence is important
as it allows environment community to see whether states are in compliance
with their legal obligations.

CONCLUSION
Conclusively it could therefore be said that though the command and control
system has suffered some set backs the suggested improvements should be
taken into consideration. However it is also suggested that the system of direct
regulation will be more successful in protecting the environment if it works
hand in hand with both economic instruments and voluntary measures.

131
BIBLIOGRAPHY

INTERNATIONAL INSTRUMENTS

The Stockholm Declaration of 1972

The Rio Declaration on Environment and Development of 1992

STATUTES

Tanzania Government of, the Environmental Management Act 2004, the

Government Printers, Dar es Salaam

Tanzania Government of the Marine Parks and Reserves Act of 1994, the
Government Printers, Dar es Salaam

Tanzania Government of the Mining Act of 1998, the Government Printers,

Dar es Salaam.

JOURNALS.

Samatta B.A.’Judicia activism and Access to Environmental Justice’ in The east

African lawyer issue no 5 October 2003

Wolff, G. ‘Efficient environmental legislation and on different philosophy of

pollution controlling Europe, vol 13 no1 Journal of environmental
law 2001

POLICY DOCUMENT

National Environmental Policy 1997, chapter

MIMEO

Mwamsojo G, EIA Practice in Tanzania: Lecture notes to students at the

UCLAS, NEMC

Paoletto, G, Lecture Notes on Environmental Impact Assessments in

http://www.gdrc.org/uem/eia/lecture-notes.html

Sosovele, H, the Administration of EIA Process in Tanzania: Lessons for

Practice, Institute of Resource Assessment University of Dar es Salaam

132
.Zetter, J, Policies for Creating Environmentally Sound Industries in
http://www.gdrc.org/uem/eia-zetter .html

133
FAMILY LAW QUESTIONS AND ANSWERS.
Qn:
‘A marriage is a union of one man and one woman and it is contracted with
consent of the parties thereto’.

CRITICALLY discuss the above contention by analysing the Law of Marriage

Act, 1971 and other related laws.

TABLE OF CONTENTS

1.0: INTRODUCTION.

1.1: Meaning of the term Marriage

2.0: MAIN BODY.

2.1: Analysis of the meaning of the term Marriage.

2.2: Critical discussion of the meaning of the term marriage.

2.3: General observation and recommendations.

3.0: CONCLUSION.

Appendix

1.0: INTRODUCTION
The term ‘marriage’ has been widely defined by various persons from different
legal systems.
“It is essentially the voluntary union for life of one man and one woman to
the exclusion of all others, subject to the rules as to consanguinity or affinity
and to perform the duties of matrimony prevailing in the place of domicile
of the formalities required either by the law of England or the place where
the marriage takes place353”

In English law, marriage is an agreement by which a man and a woman enter into a
legal relationship with each other and which creates and imposes mutual rights and
duties354. As per Bromley, marriage has two distinct meanings: the ceremony by
which a man and a woman become husband and wife or the act of marrying, and the
relationship existing between husband and wife or state of being married355.Under
Tanzanian law, marriage has been defined to mean voluntary union between man
and woman intended to last for their joint lives356.

353
L Rutherford and Sheila Bone, ed, (1993),Osborn’s Concise Law Dictionary 8th edn p213
354
M.P Bromley (1992) Family law 8th ed p20
355
Ibid.
356
Section 9 (1) The law of Marriage Act ( Cap 29 RE 2002): also similarly defined in The
commission the law of marriage and divorce report-Kenya P 16

134
In the case of HYDE V HYDE, Lord Penance stated,
“I conceive that marriage as conceived under Christendom, may
…be defined as the voluntary union for life of one man and one woman to
the exclusion of all others”357

Another definition of marriage is given in the book Mohamedan law358: that in

Arabic word nikah (marriage) literally means the union of sexes and in law this
term means ‘marriage’. Also in Baillie’s Digest, marriage359 has been defined to be
“a contract for the purpose of legalising sexual intercourse, and procreation of
children”.

In the oxford law dictionary the term marriage360 has been defined to mean the
relationship between husband and wife, it also means a ceremony, civil or religious
that creates the legal status of husband and wife and the legal obligations arising
from that status.

2.0: MAIN BODY.

It is the purpose of this paper to make an analysis of the law in Tanzania and other
laws as to justify the meaning of the term ‘marriage’ in as far as the union of man
and woman into is concerned.

Several observations have been seen in the introductory part of this paper that while
all the definitions above almost recognise the term ‘marriage’ as formed by the
‘union’ between a man and a woman, on the other hand the question remains to be
whether such union should be strictly between ‘one man and one woman’ and that,
whether there must be ‘consent from both parties’.

Primarily it can be said that for a marriage to subsist the following three elements
are essential.

First that it should be between a male and a female 361(heterosexual).This means

that a marriage between persons of the same sex in our country is strictly prohibited
and it is an offence punishable under the law362.

Also the idea is to the extent that the parties to the marriage must be respectively
male and female as determined and that sexual change operations have no
effect363.A good case to be analysed here is that of CORBETT V CORBETT,364
where it was stated that marriage is essentially a relationship between a man and a
woman. In this case the respondent was not at the date of the ceremony of marriage
a woman naturally but he underwent artificial scientific transformations and
changed his sexual reproductive organ into that of a woman. The judge went on

357
(1866)LR 1 P&D 130,133
358
Aqil Ahmad,(2001)Mohamedan law 20th ed p 105
359
Ibid.
360
E .A. Martin (1997)Oxford dictionary of law p 283
361
Ibid. See also S. 9 of the law of marriage act 1971
362
Section 130 of the Sexual Offences Special Provisions Act 1998
363
E,A.Martin(1997) Op.cit
364
(1970)2 WLR.1306;(1970)2 ALL ER 33

135
saying that the respondent who was male from birth but changed artificially and
therefore is not a woman. A person’s biological sex is fixed at the time of birth and
cannot be subsequently changed by artificial means.

Second element is that, parties must have voluntarily entered into the marriage.
Thus persons entering in a marriage contract must not be forced or be unduly
influenced to enter into such a relation.365

The last element is that it should be permanent. The Law of Marriage Act 366 states
categorically that a marriage purporting to be a marriage shall be a nullity if the
intended marriage is expressed to be of a temporary nature or for a limited time of
period. The idea is supported by section S.9 of the law 367 that marriage is intended
for parties’ joint lives.

The law in Tanzania recognises several types of marriages, that is, potentially
polygamous, polygamous and monogamous marriage368. For instance in
polygamous marriage law recognises such marriages in which a man can be married
to more than one woman, a good example is that of Islamic marriages, on the other
side the law in Tanzania does not recognise the same on the part of a woman as per
s.15(3) of the Law of Marriage Act, 1971.

Therefore, even though the aspect of polyandry marriages might be practiced by

some tribes in Tanzania, it is not however recognised by our law as it was
emphasized in RAMADHANI SAID V MOHAMED KILU369, by his lordship
Lugakingira, J(as he then was) where he said;
“…no woman who is married shall, while that marriage subsists,
contract another marriage and under s.152 (1) thereof it is an
Offence for a married woman to be party to a Ceremony of marriage whereby
she purports to marry to another man.”
This therefore draws us back to the basis of our question which defines law as the
union of ‘one’ man to ‘one’ woman. In fact such definition does not fall within the
four corners of the definition under the Law of Marriage Act, 1971 neither does it
fall within all kinds of marriages recognised by the said law. The position of that
law was re-instated in the case of RAMADHANI SAID V MOHAMED KILU370 .

Now let us try to highlight in short various contracts of marriages as recognised by

the law and whether such contracts fall within the arm bit of the definition of
marriage as that one between ‘one man to one woman’.

Civil marriage:
This is a marriage contracted before the District’s officer or in the presence of the
District registrar or magistrate. The civil marriage can either be monogamous or
polygamous and such a marriage is open to everybody being a Christian, Muslim,
Pagan as provided under S.25(1)(b) of the Law of Marriage Act. In fact this

365
S.16 (1) of the Law of Marriage Act, 1971.
366
S.38 (i) of cap 29 RE 2002
367
The Law of Marriage Act Cap 29 (2002)
368
S.9(2),(3); also see S 10 of The Law of Marriage Act ibid, also the in Hyde v. Hyde (supra)
369
(1983)T.L.R 309 at p.310 to 311.
370
Supra.

136
marriage on part of a man depends on the provisions of s.15(1) and 15(2) of the
Law of Marriage Act, 1971 as to justify the fact that a marriage is for one man and
one woman in some cases and on the other is not that way. On the basis of the law,
this marriage can either be monogamous or polygamous. It follows therefore that
the definition above is not exhaustive to encompass this kind of marriage.

Customary marriage:
This is another type of marriage which is contracted between members of the same
community or of different communities but with similar customs. The provisions of
law of marriage Act state as follows;
s.25(1) a marriage may, subject to the provisions of this Act, be contracted in
Tanzania –
a)…
b)…
c)…
(d) Where the parties belong to a community or to communities
which follow customary law, in civil form or according to
the rites of the customary law. (Emphasis is ours)
It should also be noted that such marriage, that is customary marriage, unless it is
contrary proved, is presumed to be polygamous or potentially polygamous as stated
under s.10(2)(a) of the law of marriage Act. This therefore is also contrary to the
definition of ‘one man to one woman’.

Religious marriages:
People from different religions have been allowed to contract marriages according
to the rites of their respective religions 371. Thus Christians, Moslems, Hindu among
others can contract marriages according to their religious rites.

Islamic Marriage – which is the union of a man and a woman for their joint lives
but which permits a marriage of more than one woman but not exceeding four
wives372, and such a marriage is registered under S.43(3) of the law of marriage
Act. Again this is not covered in whole under the definition of one man to one
woman.

Christian marriage-which implies the union of man and woman for their joint lives
and both parties entering into this contract, must be Christians373 and such
marriages
are monogamous374.As such it cannot be converted to polygamous marriage when
both parties profess Christian faith. It follows therefore that this is the kind of
marriage that is covered within the definition of one man to one woman.

In addition, the Law of Marriage Act also recognises other marriages contracted
under other religions, amongst them is HINDU. But such must conform into the
requirements of the law. Also the laws of Tanzania recognises other marriages such

371
S.25(1),(a),(b)and(c) of The Law Of Marriage Act (supra)
372
S 10 (2)(a)and S 25(1)(c),(3)(a)of the law of marriage Act (supra)
373
S25(3 (b)of the Law of Marriage Act
374
S 10 (2)(b) of the Law of Marriage Act

137
as foreign marriages which may either be marriage contracted in Tanzania embassy
abroad or marriages contracted to foreign law375.

Let us now embark to the other aspect of our question and that is, on the issue of
voluntariness or consent. In fact the law in Tanzania requires need for consent to
both parties to a marriage contract. S.9 of the Law of Marriage Act, 1971 provides
for the aspect of voluntariness within the meaning of the term marriage.

This position of the law is also found in the Spry’s report where the said report
observed on the term marriage that376;
“We would define marriage as the voluntary union of a man and a woman,
intended to last for their joint lives.” (Emphasis is ours)
However, while the very same law on this aspect provides for such requirement, it
subsequently shifts the duty or right of one to consent especially the female
counterpart when she is below the age of eighteen years, and that she is going to
contract marriage upon the consent of a third party. Such a third party may either be
her father, her mother, her guardian or even the court. This is as per s.17(1) and
17(2) of the Law of Marriage Act, 1971.

This need of other consents was also noted in the Spry’ Report where the report
pointed out that377;
“We have considered what other consents, if any, should be required. Under
the Marriage Act, parental consent is required to the marriage of any
person under 21years of age.”
It therefore follows without saying that while the meaning of the term marriage
expressly provides for a need of consent from both parties, the law after a close
observation gives room for a third party to consent on behalf of the parties in certain
situations as herein above provided. This is to say, the above position of the law
covers the general position of the law of marriage in as far as consent is concerned,
however does not encompass such exceptional cases where the law requires consent
from a third party for a valid contract of marriage.

It is therefore our considered views that while the aspect of consent remains in a
marriage contract to be essential, yet the very meaning of the term marriage if at all
there is such a need of a third party to consent, and then the meaning has to be
extended to cover even such situations.

The question again arises on the issue of the meaning of the term marriage in the
light of presumption of marriage as provided under s.160(1) of the Law of Marriage
Act, 1971. In our considered work we have found out that the law presume the
formation of the marriage where a man and a woman live together as a husband and
wife respectively for two years. This is a rebuttable presumption. But it is our great
concern to discuss it in the light of the ‘union of a man and a woman’ and again on
the aspect of ‘voluntariness’ as one of the key elements of the meaning of the term
marriage.

In fact the above section reads as follows;

375
S 34,36,37 of the law of Marriage Act
376
Kenya Commission on the Law of marriage and divorce of 1967.
377
Supra

138
 “s.160(1) Where it is proved that a man and a woman have lived
together for two years or more, in such circumstances as to have acquired
the reputation of being husband and wife, there shall be a rebuttable
presumption that they were duly married.”
From this position of the law the question here rises as to whether from the
beginning of the marriage that the parties must have intended to live together
permanently and that whether such a ‘union’ was intended to be a marriage from
the beginning. In the case of a presumption of marriage, it seems that the law
presumes that the intention of the parties as to the marriage can be developed even
where the parties have started living together as husband and wife. This means that
though the parties at the beginning might have not intended to live as husband and
wife yet their way of living in two or more years can lead to the formation of the
marriage.

However the position of the law as regards to the marriage formed out of the
presumption of marriage is somewhat contradictory. While such kind of marriages
in one part are valid only if they were initiated by marriage ceremonies, on the other
hand such requirements are discredited by the court as not forming the essentials of
the valid marriage, particularly in rebutting such presumption of marriage.

It is the purpose of our paper to discuss several positions of the law as regards to
valid marriages arising out of the presumption of marriage. As we earlier noted,
here there are several decisions of the courts which conflict to one another.

In the case of ZAINA ISMAIL V SAIDI MKONDO378, his lordship Kapoor,

Ag.J, stated that
“Under the Law of Marriage Act, parties can raise a rebuttable presumption of
marriage if they were staying together-for a period of over 2 years, in such
circumstances as to have acquired the reputation of being husband and wife.
This presumption may be rebutted if it can be proved that the parties
had gone through a ceremony of marriage recognised under the Act379”.
(Emphasis is ours)
From that ruling of the court, it seems as if that no valid marriage can exist without
marriage ceremony. This position of the law was supported by His lordship
Mwalusanya, J in the case of ZACHARIA LUGENDO V SHADRACK
LUMILANG’OMBA380 where the court stated citing FRANCIS s/o LEO’s
case381 that absence of marriage ceremony is essential in rebutting presumption of
marriage.

However that position as to make the marriage being valid by necessitating

presence of marriage ceremony was discouraged in the case of RAMADHANI
SAID V MOHAMED KILU382 where the court stated that;
“Failure to give notice of the intended marriage, absence of ‘shangwe za
harusi’ or any procedural irregularity in the ceremony are not matters which

378
(1985)TLR 239
379
The court cited the case FRANCIS s/o LEO V PASCHAL SIMON MAGANGA (1978) LRT
n.22.
380
(1987)TLR 31
381
supra
382
Supra.

139
 would affect the validity of such marriage if in all other respects it complies
with the express requirements of the Act.”
This position was re-stated by his lordship Mwalusanya, J in the case of JOHN
KIRAKWE V IDD SIKO383 where the court stated that;
“…that insists that for a presumption of marriage to succeed it must be proved
that the parties had gone through a ceremony of marriage recognised under
the Law of Marriage Act, has been discredited; and it is no longer good
law”.(Emphasis is ours)
From such observations of the law, it is now the fact that marriage is good marriage
in law, or marriage is marriage in the meaning of it even where there is no marriage
ceremonies conducted. This is to say, absence of marriage ceremony can not vitiate
the validity of the marriage if at all it complies with the provisions of the law.

However, we found it also important to point out that though the law in Tanzania
does not recognise marriages of persons of same sexes or even a woman marrying
more than one man, such is not a universal position of the law in commonwealth
countries or in the world at large.

For instance, some provinces of USA allow marriage of such persons of same sexes
and marriage of woman to more than one man while one marriage is still subsisting.
In Great Britain, the law as to the effect of allowing persons of the same sex to
marry each other has already took effect this year and two of the prominent
musicians, one of whom is Elton John has been married by David Furnish
(another man) on Friday, December 16th ,2005 at Windsor Guildhall, Berks. The
other musician is George Michael who is living with his fiancé in London by the
name of Kenny Goss. This was stated clearly in one of the Tanzania Kiswahili
newspapers, Lete Raha384, it reads:
“George wiki iliyopita alisema “hatofunga ndoa” ingawa sheria ya
Uingereza imerekibishwa hivi sasa kuruhusu watu wa jinsia moja
kuoana. Lakini, yeye na boifrendi wake wa muda mrefu Kenny
Goss- ambaye anaishi naye London Kaskazini- walitarajiwa kuwa
miongoni mwa wageni katika ndoa ya kishoga ya mwanamuziki
Elton John na boifrendi wake David Furnish juzi Ijumaa, Desemba
16 huko Windsor Guildhall, Berks.”

This therefore means, the definition of the term marriage in such jurisdictions can
not only mean a man to a woman rather it has to mean a person to another person(s)
though the aspect of voluntariness remains essential in all such kind of marriages.

3.0: CONCLUSION.
It is our conclusion that while the term marriage in the Law of marriage Act, 1971
means a voluntary union of a man and a woman for their joint lives, yet the very
meaning does not necessarily mean that such a marriage must be of one man and
one woman rather it will depend on what kind of marriage which is contracted. And
that voluntariness or consent on the part of the contracting parties to a marriage
does not necessarily exclude consent from the third parties rather where such

383
(1989)TLR 215 at 218.
384
“ Lete Raha, DESEMBA 18-24, 2005. p.6

140
 consent is needed under the law then it has to be obtained so as to make the
marriage valid.

Qn
The matrimonial offence is usually a symptom that the marriage has broken down but
it is not the ground for divorce.
a) To what extent is the above statement reflected in the law governing divorce
b) Does the abolition of matrimonial offences doctrine make divorce easier
c) What need to be proved by a petitioner before the court orders that the marriage
has broken down irreparably

OUTLINE

1.0 INTRODUCTION
The concept of marriage

2.0 MAIN BODY

-The doctrine of matrimonial offences
-The view that matrimonial offence is the symptom that the marriage has broken
down
-That the granting of divorce is not easier
-Discussion on some grounds of divorce
Adultery
Cruelty
Desertion

3.0 CONLUSION

Bibliography

1.01NTRODUCTION

The term marriage has been defined variously by different authors and by the judges
in the case law. It is defined by an agreement by which a man and a woman enter into
a certain legal relationship with each other and which creates and imposes mutual
rights and duties385. According to E.A Martin386 marriage is a ceremony, civil or
religious that creates the legal status of husband and a wife and the legal obligation
arising from that status. In the case of HYDE V HYDE387 the classic definition of
marriage was given by Lord Penzance that is the voluntary union for life of one man
and one woman to the exclusion of all others. The definition involves three conditions
i.e. marriage must be voluntary, it must last for life and it must be heterosexual i.e.
one man and one woman not homosexual.

385
P.M Bromley,(1992) Family Law, 8th edn p.26
386
E. A, Martin, (1997), Oxford Dictionary of Law, 4th edn, p.283
387
(1886) LR IP 130, 133

141
In the law of Marriage Act,388 (herein below referred to as the Act) marriage means
the voluntary union of a man and a woman intended to last for their joint lives. The
same Act categorised marriage as monogamous marriage and polygamous
marriage389. The position of the law of marriage in Tanzania was once supported by
Lugakingira J in the case of RAMADHANI SAID V MOHAMED KILU390

Although marriage in Tanzania can be contracted as civil marriage, religious marriage

or customary marriage391 the said kinds of marriages have been subjected to either
separation or divorce. Formally before the Law of Marriage Act there was the
Matrimonial Causes Act, Cap 364 which prevailed hitherto, in that law the petitioner
could succeed in a petition for divorce if he proved that the respondent had been
guilty of a matrimonial offence and that the petitioner had neither condoned nor
connived at such offence. These matrimonial offences were adultery, cruelty,
desertion for at least three years and separation where continued for at least three
years. This Act was repealed by the Law of Marriage Act 1971,which can be said to
be the great improvement of the old law in which only one ground of divorce i.e. the
marriage has broken down irreparably.`

2.0 MAIN BODY

Pursuant to the statement of the question it is true that the matrimonial offences is
usually the symptom that the marriage has broken down but not a ground of divorce
because in deciding whether the marriage has broken down or not the provision of
section 107(2) of the Act provides for the evidences to be put into regard by the court
as the evidences of the granting of divorce. However before going to the entire
question and provide for the stand of the law in Tanzania in matters of matrimonial
offences. The doctrine of matrimonial offences is defined to mean misbehaviour such
as adultery desertion or cruelty by a party to a marriage392.

Prior to the enactment of section 102 (2) of the Act in 1969 the divorce reform act
was passed representing views of the royal commission and arch bishop group.
According to that Act, all old grounds for divorce were abolished and replaced by one
ground as given under section 99 of the Act i.e. the marriage has broken down
irreparably.

Therefore according to section 107 (2) of the Act is that the court may accept the
following matters as evidence that the marriage has broken down but proof of any
such matter shall not entitle a party a right to a decree …adultery committed by the
respondent, sexual perversion on the part of the respondent, cruelty whether mental or
physical, wilful neglect and desertion of the petitioner by the respondent for at least
three years,

Also the imprisonment by the respondent for life sentence or the period not less than
five years, mental illness by the respondent where at least two doctors one of them

388
Section 9 (2) and section 9(3) of The Law of marriage Act, (Cap 29 R.E 2002)
389
Section 9 (2) and section 9 (3) ibid
390
[1983] TLR 309
391
See section 25 of the Act.
392
Martin, op.cit+. p.288

142
qualified as the psychiatry have certified that they entertain no hope of cure or
recovery, change of religion by the respondent, where both parties followed the same
faith at the time of the marriage and where according to the laws of that faith a change
of religion dissolves or is a ground of dissolution of marriage393.

Unlike in Tanzania the law of divorce in Kenya and Uganda still give hegemony on
the old ground as the appropriate grounds for divorce. That is to say that in Kenya and
Uganda the doctrine of matrimonial offences does persist.

Tanzania has moved away from old law of proving matrimonial offences and relied
on the matters provided under section 107 (2) to be proved. These matters do not ipso
facto give a petition to a decree. The matters must be proved but these matters being
proved is not enough but the court should go further to find as to whether the marriage
has broken down irreparably.

Under the Act there is only one ground of divorce and that is the marriage has broken
down irreparably. This ground is provided for under section 99 of the Act. But before
the court can grant divorce there are procedures to be taken into an account. These
procedures however will be discussed under the second part of this presentation.

On the other hand, there seems to be no reason or purpose of keeping on a marriage in

which one of the parties does not want to stay with the other. Therefore, for this case,
divorce through irreparable broken marriage is cutting nearer to divorce by consent.

With this law, still divorce can not be easily granted between the spouses until the
court has satisfied with the argument provided by the petitioner and also the court has
to prove those evidence to the extent that, they are convincing for the offering of a
decree of divorce. It is therefore argued as part two of the question states that the
process of granting divorce for a petitioner is still not so easy one due to the fact that
it involves a long process.

Time limitation, by limitation of time of the marriage, it is stated that, no one shall
without the prior leave of the court petition for divorce before the expiry of two years
from the date of the marriage which is sought to dissolve. However the court have
interpreted the provision of section 100 (1) which bars the application for the divorce
before the passing of two years or before the passing some other procedures as
provided for in the Act where there is impracticable circumstances.

Moreover, for the petitioner to be granted a decree of divorce the matter should be
sent to the conciliatory board so as to be discussed first and if the board declared that
it failed to reconcile the matter, it is where they transfer the matter to the court.
Section 101 provides that, for the person petitioning for divorce must first refer its
matrimonial difficulties to a marriage conciliatory board. The board have been created
to reconcile the parties where either of them applies for dissolution.

393
These grounds according to section 102 (2) of the Act are the evidences that there are the symptoms
for the divorce.

143
Once the board fails to reconcile the matter parties can always go to the court since
then chances of their reconciliation may be dwindled. Therefore the board should
certify that, it has failed to reconcile the parties by issuing a certificate setting out its
findings, but this is a general rule.

However, there are exceptions for this general rule, where a person petitioning for
divorce within two years of the marriage must obtain leave by application to court or
board. In such a case, if the application is granted by court no doubt the court will not
send the proceedings to a board but continue to hear the application as if it were a
petition. The exceptions are said to be provided under section 101(a) to (f) of the Act.

Taking an example of the provision of section 102 (f). The law is to the effect that
where the court is satisfied that there are extraordinary circumstances which make
reference to the board impracticable the court will dispense with such reference.

That phrase was considered by Onyiuke J. in the case of ZAINAT KHAN V

ABDULLAH KHAN394 the learned judge, inter alia said:
“The discretion conferred on the Court by paragraph (f) of section 101 should
only be sparingly exercised and then only in circumstances where it is clear
beyond any reasonable doubt that a reference to a Board is not a practical
proposition. This may be due to the fact that the circumstances of the case are
such that no expectation can be entertained that the Board will be able to
achieve any useful results and that any reference to it will be so much a waste
of time and effort”.

The same authority was cited by Lugakingira J in giving hi stand that the court can
dispense with the reference of the matter to the reconciliation board in the case of
MARIAM TUMBO V HAROLD TUMBO395

Furthermore, the court can grant the decree of divorce in the circumstances where, the
Conciliatory Board itself involves several proceedings as provided under section 104
of the Act. Therefore despite the fact that the matrimonial offences doctrine has been
abolished still the divorce can not easily be granted under the new law. According to
the Act where the petition does not comply with the law relating to reference to the
conciliatory board the court shall reject the petition.

The petitioner must prove any among of the evidences provided for under section 107
(2) of the Act. The evidences are has been mentioned above. The major which are
normally dealt with are adultery cruelty and desertion. Therefore in this paper the
discussion is going to be centred on these evidences, further the other grounds as per
section 107 (2) of the Act are given the same consideration by the court as to whether
decree is to be granted or not.

Adultery is an art of sexual intercourse between two persons who are not married to
each other when at least one of them is married to someone else and the sexual

394
[1973] LRT n 57
395
[1983] TLR 293

144
intercourse is not by force. It is difficult to define adultery conceptually because it
differs from one society to another. In some societies circumstantial evidence are
accepted as evidence of adultery. What is important is that there must be the
subsisting marriage where one can allege that his/her partner has committed adultery.

So in order one can petition for divorce basing on adultery one must prove that the
marriage has broken down irreparably. It is upon the court to satisfy itself that the
marriage has broken down irreparably. Adultery may occur once but has a resounding
impact that shakes the marriage and if such behaviour continuous it can be the
evidence that the marriage has broken down irreparably.

In the case of DENNIS V DENNIS396 it was held that there must be the penetration
of the male organ to the female organ, it was not necessary that complete penetration
or sexual intercourse should take place. In the case of adultery the standard of proof is
a question of debate. There are the divergent views in proving adultery.

According to section 72 of the Act the husband or the wife may baring a suit for
damages against any person with whom his or her spouse has committed adultery397
In the case of JUMA MISANYA & ANOTHER V LISTA NDUVUMAI398 it was
held that damages for adultery are awarded on the principle that they are to be by way
of compensation for the husband’s loss and injury and not by way of punishment of
the adulterer for his misconduct.

In the proof of adultery it has attracted the consideration of several factors as one
example can be drawn from the case of MARIAM TUMBO V HAROLD TUMBO
(supra) In the case where the wife claimed adultery by her husband due to then act of
cohabiting with the second wife the court found there was condonation. Lugakingira J
“This centres on the respondent's acquisition of and cohabitation with the
second woman. There was indeed adultery, the parties' being a Christian
marriage which is presumed to be monogamous. The respondent did not deny
this fact: he only pleaded condonation. I have no hesitation in finding that
there was condonation. The petitioner might have initially felt slighted,
humiliated and offended when the respondent took on the second woman. But
in the end she became reconciled to it, and tolerated it, taking no step to
register her protest”.

Cruelty in Tanzania is not defined but it is put in section 107 (2) of the Act. Aspect of
cruelty may be mental of physical or physical. The practice of the courts in Tanzania
appears to follow definition by RUSSEL V RUSSEL399 where legal cruelty was
defined as
“A conduct of such character as to have caused danger to life, limb or health
bodily or mental or as to give rise to reasonable apprehension of that danger”.
In the case of MARTIN MWANANDEGE V CRECENSIA SIMON400 where there
were evidences given by wife on many act of assault, Mackanja, (Extended
jurisdiction) stated

396
(1955) 2 ALL E.R 51
397
Section 72 (1) and (2) provides the exception where the petitioner can not claim damages.
398
[1983] TLR 245
399
[1897] AC 395
400
HC (PC) Mart Civ. App No 18 of 1978.

145
 “The conduct of the appellant threatens the life, severely beat her up and she
had to be admitted Kilimanjaro hospital. He had beaten her again and removed
her upper teeth. He always humiliated the wife by comparing the gap in her
teeth to her sexual part. This insult conducts amount to cruelty”.
In the case of SAIDI MOHAMED V ZENA ALI401 the appellants act of not only
beating her wife but also undressing her in front of the people was said to be an act of
embarrassing cruelty which inflicted considerable physical and mental torture to the
respondent.

However in the case of CHARLES AUKO V DORINE LIBONGA402 the court

came with the decision that the two acts of beating the wife by the husband were not
enough to say the marriage has broken down irreparably as they did not amount to
cruelty in terms of section 107 (2) (c). Another leading case of cruelty is the case of
LAUDER V LAUDER403 where Lord Merriman P at p 293 stated as follows.
“I am prepared to say categorically that on more than these occasions I have
committed myself to the statement that I can imagine no course of conduct
more calculated to be destructive of marriage life than persistent deliberate
sulking”
In this case the acts of silent treatment by the spouse amount to cruelty as it has
mental effect towards the applicant.

Desertion is generally defined as the separation of the spouse from the other with an
intention on the part of deserting spouse of bringing cohabitation permanent to an end
without reasonable course and without the consent of the other party. Desertion
occurs where there is cessation of the flow of the matrimonial rights and obligations.

Desertion can either be physical desertion or constructive desertion. Physical

desertion occurs when someone leaving the house and there is the lack of animus
deserendi (intention to return back) Also means behaviour of one spouse not
communicating to the other spouse (silent treatment).

By constructive desertion means the party does not leave the house but compels the
other spouse to leave the house i.e. the victim will usually vacate the house. The case
of BURCHLER V BURCHLER404 where the husband wanted to conduct sexual
intercourse in a way which was resisted by the wife, though the court treated the act
as not the one amounting to the dismissal from consortium and the one entitling the
wife to leave the matrimonial home the case had been used as the proper illustration
on the constructive desertion.

In the case of OHIMO V NDEGE NYAMBEGA405 the husband was deserted for
seven years and he brought an action for compensation against the man who was
cohabiting with. He failed to come out with the evidence. The appellate court said the
appellant should accept the position and for divorce rather than suing the man, the
wife had no intention to return to him.

401
[1985] TLR 13
402
[1988] TLR 44
403
(1949) P 277
404
[1947] 1 ALL E.R 319
405
MZ (PC) Civil App No 124 of 1974

146
3.0 CONCLUSION

To conclude, generally in Tanzania the doctrine of matrimonial offences was

abolished by the enactment of the Act, however the provision of section 99 of the Act
has been the driving provision in the country whenever there is an application for
divorce. All in all though the doctrine had been abolished still in the petition of the
divorce pursuant to the evidences provided for under the provision of section 107 (2)
of the Act it has been not easier for the applicants just to apply for the divorce and
receive positive response from the court. Consideration to the marriage bondage has
been dealt with clearly by the courts so as to maintain the status of marriage in
Tanzania which for some religions is the sacrament.

OUTLINE
Qn In Tanzania Law of Marriage Act, 1971 represent a big effort by the legislature to
integrate and streamline various personal laws without unduly interfering with
people’s customs and religious beliefs.

CRITICALLY comment on the above statement. In your analysis of the Act, what
aspects of the Act if any do you think conform to the above statement and to what
extent do they do so.
1:0 INTRODUCTION

2:0 Requirement of a marriage contract.

2:1 Capacity

2:2 Consent

2:3 Prohibited relationship

2:4 Status

2:5 Notice of intention to marry.

3:0 Divorce and separation

3:1 Separation

3:2 Divorce

4:0 Right to property

5:0 Division of matrimonial property

6:0 Maintenance of spouse

7:0 Conclusion

8:0 Bibliography

147
1:0 Historical perspectives

Before colonization of Tanganyika there were various customary laws in Tanganyika.

As there were many tribes in Tanganyika so does various customs and traditions
though some of the traditions were related on some aspects.

When the Germany colonized Tanganyika on the 19th century, found these customary
laws governing various relations between members of the society. Though they
introduced their laws but they never interfered much with our customary laws,
precisely on the aspect of marriage, divorce, and succession. Germany colonial rule
existed until 1918 there by the British colonial rule which existed until1961.

The British introduced Christianity religion which automatically altered the

customary law status especially on marriages and divorce. Those who professed
Christianity were allowed to practice monogamous marriage and they were restricted
on the issue on divorce. In recognizing the importance of customary laws, Christianity
allowed followers to retain some of customary laws on the matter of marriages of
which had no fatal effects; those matters were issues of bride wealth, and various
marriage ceremonies.

Christianity restricted polygamous marriage and encouraged those with many wives
to retain a single wife, and those marriages contracted under Christianity should never
be broken except after the death of husband or wife.

However, under Islamic religion, a woman was not allowed to marry a man who is
not a Moslem, but a man was allowed to marry a woman of the other religion.

On 1963 two years after independence, a law was passed, were by court system was
altered to constitutes three courts system but law of marriage and divorce were not
altered, Christianity laws, customary laws, Islamic laws and Hindu laws were still
applicable.

The government considered to be important to set out a single legislation concerning

marriage hence The Law of Marriage Act, No.5 of 1971 was passed so as to rectify
laws of marriage, right to property, separation, and divorce. It was an inevitable act,
and its enactment proved the efforts endeavoured by the legislature to integrate,
various customary laws and to bring equality among all legal marriages, and to set out
the proper procedures of divorce.

Therefore up to the recent law of marriage Act of 1971,

In Tanzania Various efforts can be seen to have been done by the legislator to
integrate and streamline various personal laws without interfering with religious
beliefs and customs of the people, since this paper does not intend to dig the
background of the LMA, rather the efforts made by a legislator as far as marriage is
concerned. The following are the efforts so claimed.

148
Marriage as per section 9 of LMA406, has been defined as the voluntary union of man
and woman intended to last for their joint lives.
This definition is deduced from the classic English case of HYDE V.HYDE 407 where
by Lord Penzance stated that,
“…I conceive that marriage …..May be defined as the voluntary union
for life for one man and one woman to the exclusion of all others.”

According to the case it seems that marriage must be heterosexual; man and woman
not homosexual and it must be monogamous.
However the Law of Marriage Act recognize both monogamous and polygamous
marriage, vide section 9 (2) and (3) of LMA.

There are various types of marriage in Tanzania these are customary, civil, religious
and foreign marriages these marriages are recognized under section 25 (1) of LMA,
and 10 (2) of LMA. These marriages are registered under S.43 of LMA.

Having observed the introductory part its high time now to observe the requirements
as far as marriage contract is concerned.

2:0 Requirement of a marriage contract

2:1 Capacity

The parties are required by the law of majority to be of 18 years old for them to have
capacity to enter freely into contract. In marriage contract this age of majority has
slightly been altered. For a male person it remains 18 years, where as for female it has
been reduced to 15 years as the minimum age of marriage unless they are of unsound
mind, are free to enter into marriage contract as per S.13 (1) of LMA.

However the provision of section S 13 (2) provides that the court have discretion upon
application to give leave for a marriage where parties are either of them are below the
ages prescribed if each party has attained the age of 14 years and as per satisfaction of
court upon existence of special circumstances which make the proposed marriage
desirable. As provided in the case of SHABIR ABDUL MALIK MOHAMED
VIRJI V. DILAR NURALY MANJI408

Moreover under Islamic law when a female or male person attains the puberty age is
allowed to marry. This one differs from municipal law where it requires a male person
to attain the age of eighteen years and a female attain the age of fifteen years.

Also the Act integrates and streamlines personal law on the matter of age under
Christian marriage where it provides the same position as municipal law.

406
Law of Marriage Act, No,5 , 1971
407
(1866)L R I P &D 130
408
(1971) H C D No, 407

149
2:2 Consent.

Absences of consent invalidate the contract of marriage. Thus the ceremony of

marriage becomes void. This is provided under S 16(1) and (2) of LMA .The law of
marriage Act provides that a marriage must be contracted upon the consent freely and
voluntarily given, and it can not been said to have been freely and voluntary given if
the party who purported to give it was influenced by fraud, coercion, mistaken to the
nature of the ceremony or was suffering from any mental defect temporarily or
permanent or was intoxicated.

According to Islamic law, the parties contracting a marriage must be acting under
their free will and consent. The consent should be without fear or undue influence or
fraud. In the case of a boy or a girl who has not attained the age of puberty the
marriage is not valid unless the legal guardian has consented to it. The consent may be
impliedly or express-smiling, laughter or remaining silent may be construed to imply
consent.409 In the case of HASSSAN KUTTI V. JAINBHA.410 It was held that free
consent in case of adult person is not only essential for a valid marriage but it is
absolute necessary.

Also it must be noted that the situation is the same under customary law, where as
consent is the necessary requisite on the existence of a valid marriage.

Under the LMA, S 38 (1) (e), a ceremony purporting to be a marriage shall be a

nullity if the consent of either party was not freely and voluntary given there to. In the
case of BASHFORD V. TULI411 Hamlyn J stated inter alia that,
“…in ample evidence on the record (which is not in issue) that the
petitioner would never have entered into the marriage contract with the
respondent had she been aware of his marital status such evidence I
have accepted and as a result the court find that the woman in
consenting to marriage ceremony such consent on a completely
erroneous conception of a conditional precedent…..i consequently
allow the prayer in the petition as to marriage and declare it to be null
and void abinitio”

However a female who has not attained the apparent age of 18 years shall be required
before marrying to obtain the consent of her father, or mother or guardian, or if none
of them does not exist shall require not consent as per S 17 (1) of LMA.

On various customs of African societies, youth were only considered as diplomats of

the two families intended to establish a relation but they were not considered in
choosing there loved ones. Various communities in Tanzania shows that there were
procedures where by a girl was required to show by sign that she agrees to marry a
certain boy, in other communities silence meant compliance to a marriage. Marriage
was considered to be a community issue rather than personal issue, therefore freedom
and consent of a community can not be compared with a personal freedom and
consent, and hence party’s consent never existed as per the Customary Law
Declaration Act of 1963, as it is in the GN No. 279/1963.
409
Dr .I. A Khan, Mohamedan law p 113
410
AIR 1928 Mad 1285.
411
(1971) H CD 76

150
Therefore, the condition of the LMA has interfered with the people’s customs by
making consent to be mandatory upon the fulfillment of marriage.

2:3 Prohibited relationship

Under the LMA parties to an intended marriage must be above a certain age, however
even such age and consent requirement are met, the law demands that the parties must
not be related within the prohibited relationship. Section 14 of the LMA clearly
provides the criteria of persons under prohibited relationship.

2:4 Status
Section 15 of the LMA Provides that no man while married by a monogamous
marriage shall contract another marriage and also no man while married by a
polygamous or potentially polygamous marriage shall contract a marriage in any
monogamous form with any other person. And no woman who is married shall, while
the marriages subsist contract another marriage.

Under Christian marriage, no man while married by a monogamous marriage shall

contract another marriage and there is no divorce.

Under the Islamic laws a polygamous marriage and divorce are allowed but polyandry
is not allowed. However, if a man wants to marry another wife, he shall obtain the
consent from the existing wife/wives and shall not be allowed to marry more than four
wives.412

Mean while under the customary law, the situation is completely different from
Islamic and Christianity marriages. Under customary law a man can marry as many
wives as he wants and he does not require the consent of the existing wife/wives.

For that matter it is obvious that the legislator has integrated and streamlines the
personal laws without interfering with people’s customs and religious beliefs.

2:5 Notice of intention to marry.

A man and a woman may intend to marry; they will be required to give notice of the
intention within three weeks period from the date they wish to marry. The notice is to
be published in the public places such as church so as to give opportunities to the one
who has objection to such intended marriage. This notice is provided for under section
18 (2) of LMA.

Under Christianity the situation is the same, but on Islamic and customary marriage
such a requirement of notice of intention to marry is not mandatory, and this can not
be used to the disadvantages of the latter two (Islamic and customary marriages.)

However, the requirement of notice can be dispensed with by the registrar general
upon being satisfied that there are some good and sufficient reasons for dispensing
with the giving of notice as per section 23 of LMA.

412
Dr. Paras Diwan, Family Law , p

151
3:0 Divorce and separation

3:1 Separation

There are two types of separation, separation by agreement and judicial separation.
Separation by agreement is an indication that the marriage is strained. Its purposes to
release each spouses from the duty of cohabitation. No particular forms of agreement
are required, but in many cases separation agreement are drawn up by lawyers.
Separation provides for living apart and covenant not to take matrimonial proceedings
for offences committed before the agreement. A separation agreement can be
discharged either by agreement or by its breach, thus entitling the innocent party to be
released.

In other circumstances separation may be granted by court of law. Any married

person may petition to court for a decree of separation on the ground that his/her
marriage has broken down. One spouse may be the cause of separation, for instance
frequent beating of a wife. This is provided under S 99 of LMA.

Where the parties resume cohabitation the separation agreement will come to an end.
This is dominant under the Islamic law, where a husband and wife live together for
three months without sexual intercourse there will be a separation, but if it that parties
resumed cohabitation separation agreement will come to an end.

However under Christian marriage, separation is not allowed, but it must be

understood that separation under customary law do exist. This may happen where a
husband is not satisfied with the current change of character of his wife, at this
juncture he may send his wife back at her home place for being reformed on her
character. However, a wife can not ask for a separation with her husband upon any
change of character of her husband.

Generally, The LMA does not provide clearly on the matter of separation under
Islamic and customary marriages.

3:2 Divorce

Divorce is the legal dissolution of marriage; marriage comes to an end by a decree of

divorce issued by the court. The ground of divorce is that the marriage has broken
down irreparably as per S 99 of LMA. More over no petition for a decree of divorce
should be presented before the court during the first two years of marriage unless
leave is obtained on the ground that the petitioner suffers from exception hardship as
provided under S 100 of LMA.

But in Tanzania extra-judicial divorce is not permissible Example under customary

law and Islamic law marriages are not applicable to marriage and what were extra
judicial or khula divorces have no recognition as lawful divorces. Divorces can only
be obtained from a court of law.

Under Islamic law point of view as far as the issue of divorce is concerned under
S.107 (3) provides for three factors to be proved to the satisfaction of the court

152
hearing the petition for decree of divorce that the marriage contracted under Islamic
law is irreparably broken down and then proceeding to grant a decree of divorce,
these factors are, that parties were married under Islamic law, and that The Marriage
Conciliatory Board has certified its failure to reconcile the parties and subsequent to
the board’s failure to reconcile the parties one of them have done an act which under
Islamic law is sufficient to terminate the marriage.

If the husband issue talak as subsequent act to failure of The Conciliation Board, the
court hearing the case is enjoined to make a finding that the marriage has broken
down irreparably and proceed to grant divorce or if the wife redeems herself
(kujikhului) by returning the dowry paid by the husband this act or thing is capable of
dissolving a marriage under Islamic law as provided in the case of HAMISI
KASIMU V. ZAINABU BAKARI413.

The evidence that marriage has broken down are provided under S 107 (2), however
not all the grounds are considered under customary law. For instance adultery among
the Maasai customs is not considered as a ground for divorce simply because it falls
under their customs.

Moreover under Christian marriage once the marriage contracted can not be
terminated because as it is stated under the LMA the marriage means the voluntary
union of a man and a woman intended to last for their joint lives.

4:0 Right to property

According to section 58 of LMA each spouse is presumed to own separate property.

The marriage between the spouses shall not operate to change the ownership of any
property or to prevent any one of spouses from acquiring more property. The spouses
who own the house which after marriage became matrimonial home is not allowed to
alienate it while the marriage subsist without the other spouses consent. This is
provided under S 59 of LMA.

According to provision of S 60 the property which is acquired during the substance of

marriage is presumed to belong exclusively to the spouse in whose name it is acquired
and, if it acquired jointly in both parties names, it is presumed to belong to both of
them equally. However gift exchange between husband and wife during the marriage
are presumed to belong absolute to the donee and not to the donor. This provided
under section 61 of LMA.

Under the Christian marriages there is no status of separate properties, when spouses
enter into marriage all properties are considered to be of both a husband and a wife
irrespective of their acquisition.

For that matter the LMA, through S 58 have interfered with the Christianity beliefs on
separating properties of spouses. However, it has streamlined personal law without
interfering to the Islamic and customary law as far as ownership properties are
concerned.

413
[1985] T.L.R 217

153
Since under customary law of marriage most of the properties are regarded to belong
for male because the husband is regarded as main producers to the society.

5:0 Division of matrimonial property.

The court shall have power to order the division between the parties of any assets
acquired by them during the marriage by their joint efforts or to order the sell of any
such asset and the division between the parties of the proceeds of the sale as per S 114
(1) of LMA. In exercising such power the court shall have regard to the customs of
the community of the parties, the extent of the contribution made by each party in
money, property or work towards the acquiring of the assets, to any debts owing by
either party which were contracted for the joint benefit and to the needs of the infant
children if any of the marriage.

Under the Christian marriage since there is no divorce automatically discussion on the
issue of distribution of the matrimonial assets will be meaningless, in that sense
therefore, S114of the LMA clearly interfere with the Christian religious beliefs as far
as the division of matrimonial assets are concerned.

In the case of BI HAWA MOHAMED V. ALLY SEFU414,The practice under

Islamic law of giving a former wife parting gift, in accordance with the former
husband’s abilities was accepted by the court of appeal as constituting the customs of
the parties within the meaning of S 114 (2) (a) of LMA.

Therefore, the law can be seen to have streamlined personal laws as far as the aspect
of division of property is concerned.

6:0 Maintenance of spouse

The duty to maintain spouse is provided under section 63 (a) of the LMA. That duty is
on the husband to provide his wife with food, accommodation and clothing as may be
reasonable to his means and station in life, however where a husband is incapacitated
wholly or impartially from earning a livelihood by reason of mental or physical injury
or ill-health the duty of maintenance rest on a wife as per S 63 (b) of the LMA.

Under Islamic law, the provision of section 115 (1) (f), cover it where by the parties
married in Islamic form, for the customary period of iddat following the date on
which the divorce takes or is deemed to have taken, effect, a man may be ordered to
pay maintenance to his wife or former wife.

Under The customary law declaration maintenance of wife by husband or of children

by their father is not provided for. It has been submitted that is an oversight by its
draftsmen and should not be taken to mean that customary law does not know of
maintenance but under the Customary Law Declaration Act Para 71-76 deals with
maintenance of a divorced woman such maintenance ceases at the date she marries

414
[1983] T.L.R 32

154
Where the wife is guilty party, the husband has no obligation to maintain the wife
when she got divorced, Para 74 and it would logically follows that an innocent
divorced woman may lose the right to maintenance if she subsequently misconduct
herself of has been guilty of adultery.

7:0 Conclusion

It can obviously be seen that, the legislature have endeavored to integrate and
streamline personal laws without unduly interfering with people’s customs and
religious beliefs to a certain extent. The history reveals some changes in Laws relating
to marriages before the colonization of Tanganyika, up to the independence of
Tanganyika, where by various customs being retained brought some sort of
uncertainty as far as the adjudication of marriages matters were concerned, hence a
legislature had to assume a big role of trying to establish a single legislation so as to
remove uncertainty on which law to be used on the administration of justice. Since it
is the requirement that a law should be certain. Therefore the Law of Marriage Act,
No, 5 of 1971 show the efforts made by the legislature on matters of marriages.

However, in some instances it has interfered with people’s customs and religious
beliefs but this can not be said to hold more water as some of the customs are out
dated and need to be dropped, and after all a single legislation has to be enacted and
followed by all, therefore such an overlap of the LMA, is inevitable.

155
BIBLIOGRAPHY

STATUTE
Tanzania Government of, the law of marriage act, (Cap 29 R.E 2002), Government
Printers, Dar es Salaam

BOOKS

Ahmad, A. (Ed), (2001), Text Book of Mohamedan Law, (12th Edn), Central law
Agency, Allahabad.

Bromley, P.M. (1992) Bromley’s Family Law, (8th Edn), Butterworths, London.

Martin, A.E. (1997), Oxford Dictionary of Law,(4th Edn)Oxford University press,

New York.

Rutherforrd, L.and s.Bone,(eds)(1999),Osborn’s Concise Law Dictionary,(8th

Edn),Universal Law Publishing CO. New Delhi.

NEWS PAPER

Lete Raha 17th December 2005

156
BUSINESS ASSOCIATION QUESTIONS AND
ANSWERS
Qn: a) The certificate of incorporation can not be challenged
in any ground whatsoever.
b) The limited liability company is the greatest single
discovery in the modern times.
PART A

1.0 INTRODUCTION

1.1 Meaning of company

Company is defined under section 2, the companies Ordinance,

cap 212 (hereinafter referred to as cap 212) as a company
formed and registered under that ordinance or existing company.
However, this definition is not exhaustive. According to the
Blacks Law Dictionary a company is a union or association of
persons for carrying on a commercial or industrial enterprise; a
partnership, corporation, association, Joint Stock Company.

1.2 Formation of company

The process of forming a company can be divided in to four

distinct stages; (1) promotion (2) registration or incorporation
(3) capital subscription, and (4) commencement of business. For
the purpose of this question, our concern will be the second the
stage, that is, “incorporation” or “registration”.

In this stage the company is registered with the registrar of

companies under Cap 212. On the registration of the company
the registrar gives a certificate to the effect that the company is
incorporated and in case of a limited company that the company
is limited415.

2.0 CERTIFICATE OF INCORPORATION

415
Section 15(1) of the Companies Ordinance, cap 212

157
The certificate of incorporation is the birth certificate of a
company. Thus no company shall come into existence without
the certificate of incorporation. The effect of certificate of
incorporation is covered by section 15(2) of cap 212.

2.1 Conclusiveness of the certificate of incorporation

Section 16(1) of cap 212 provides that the certificate of

incorporation given by the registrar shall be conclusive evidence
that the requirement of cap 212 in respect of registration and of
matters precedent and incidental thereto have been complied
with and that the association is company authorized to be
registered and duly registered under cap 212.

If it is later discovered that the granting of the certificate was

made in ignorance of some irregularity on the part of the
promoters, it cannot be withdrawn or challenge in any ground
whatsoever. This is known as then rule in Peel’s case 416. The
reason for this rule was expressed by lord Cairns in this case as
follows;
“When once the memorandum is registered and the
company holds out to the world as a company undertaking
business willing to receive shareholders and ready to
contract engagements then it would be of the most
disastrous consequences if after all that has been done,
any person was allowed to go back and enter into an
examination of the circumstances attending the original
registration and the regularity of the execution of the
documents.”
Therefore once the certificate of incorporation is issued by the
registrar nothing is to be inquired into as to the regularity of
prior proceedings.

416
Barned’s Banking Company Re Peel’s case (1867) L.R 2 ch, 674.

158
The above position was upheld in the case of JUBILEE
COTTON MILLS LTD V. LEWIS417, where the necessary
documents were delivered to the registrar for registration on 6th
January. The registrar issued a certificate of incorporation but
dated it 6th instead of 8th January, the date on which the
certificate was issued. On 6th January some shares were allotted
to Lewis that is before the certificate of incorporation was
issued. The question arose whether the allotment was void; it
was held that the certificate of incorporation is conclusive
evidence of all that it contains. In law the company was formed
on 6th January and therefore the allotment of shares was valid.

According to section 16 of cap.212 and two cases above, a

certificate of incorporation cannot be challenged in any ground
in respect of formalities. It cannot be challenged even in cases
were the memorandum is altered after the signatories put their
signatures on the memorandum but before it is registrar; or
where the memorandum is signed by only one person for all the
seven subscribers; or where all the signatories are all minors; or
signatures to the memorandum are forged.

2.2 Circumstances under which the certificate can be

challenged

Even though the certificate of incorporation is conclusive for the

purpose of incorporation, it does not make an illegal object a
legal one. For this reason there are number of circumstances or
cases where the certificate of incorporation though duly issued
had been withdrawn. These are explained under the following
paragraphs.

The first circumstance is, where it is discovered after the

certificate of incorporation has been issued by the registrar, that
the company was formed blasphemous objectives. In
BOWMAN AND OTHERS V. THE SECULAR SOCIETY

417
[1924] AC 958, H.L.

159
LTD418 the company in question was registered and a certificate
of incorporation duly granted and when it started implementing
its objects of secularism it was found that those objects were
blasphemous to the Christian religion. Bowman and Others
brought an action against this company arguing that their
objective in theory and practice were illegal and offended
Christian religion. It was held that though Christian religion was
not the law of England, activities of this company which were
blasphemous to the doctrine of that religion could be halted and
the certificate withdrawn and its registration cancelled.

Another circumstance is where it is subsequently discovered that

the objects of the company are immoral. In R. V. REGISTRAR
OF JOINT STOCK COMPANIES (ex-parte the A.G)419 X, a
firm of accountants sought to register a company on behalf of
their clients. They accordingly wrote to the registrar to reserve
the name “prostitutes”. The registrar rejected the name where
upon X changed it to Hooker ltd. The registrar again rejected it
where upon X submitted the name “Lindi St. Claire French
lessons ltd”. The registrar accepted the name and registered the
company issuing the certificate in that name. Later, it was
discovered that the company’s sole purpose was to enable
clients either alone or with others to provide prostitution service
for gain. Judge Ackner L. J as he then was stated that though
prostitution per se was not unlawful under the English law, it
was contrary to morality. Hence, the registrar was entitled to
quash the registration and withdraw the certificate of
incorporation.

The third circumstance in which the certificate of incorporation

can be challenged and withdrawn is where the entity that was
registered as a company is not a company in nature. In
SALOMON V. SALOMON420, Lord Parker in the course of his
judgment suggested that Courts will be ready to go behind the
certificate and nullify the registration of the company on the
418
[1917] AC 406
419
[1980] Q.B
420
[1897] AC 22

160
ground that the entity was not a corporate body with status and
capacity conferred by the Act. In England this is substantiated
by section 10(3) of the Trade Union and Labour Relations
(Consolidation) Act, 1992, which declares that “the registration
of a trade union under the Companies Act (UK) shall be void”.

The last but not least situation or circumstance where the

certificate of incorporation can be challenged is where the
company to which the certificate has been issued turns out to be
an enemy of the state, that is, the company which belongs to or
whose members belong to an enemy country. This point was
discussed in the case of DAIMLER COMPANY LTD V.
CONTINENTAL TYRES COMPANY421.

In this case Daimler Company limited was incorporated in the

United Kingdom to market the Mercedes Benz cars and
accessories. Soon after the incorporation, the First World War
broke out where Germany and England were fighting each other
as enemies. It turned out that the company was originally a
Germany company and most of members were Germany
nationals. Continental Tyre ltd brought an action against
Daimler arguing that the company had become enemy of the
state and so its registration should be cancelled to serve the
English public from injury by an enemy. It was held that the
company was an enemy since it originated from and its
members were from German. Lord Parker said;
“Though ordinarily the company is a separate and distinct
from its corporators and its individual activities, there are
times when it must be treated as part and parcel of them
and their identities…. For instance such a company may
assume an enemy character, if persons controlling it de
facto are residents in an enemy country or wherever
resident are adherent of or taking instructions from or
acting under the control of the enemy”.
The registration of the company was nullified and it certificate
of incorporation withdrawn.

421
[1916] 2 AC. 307

161
In addition the company incorporated with unlawful objects may
be ordered by the Court to wound up on the petition of a creditor
or member, the… being that it is just and equitable that the
company should be wound up.

3.0 CONCLUSION

Therefore, from the above discussion it evident that the

certificate of incorporation is only conclusive evidence that the
formalities in respect of incorporation of a company have been
complied with and not conclusive evidence as to the legality of
the company’s objects. Thus, we are of the view that a
certificate of incorporation can be challenged on the ground of
illegal object.

PART B

1.0 INTRODUCTION

1.1 Meaning/ definition

Company is defined under section 2, cap 212 as a company

formed and registered under that ordinance or existing company.
However, this definition is not exhaustive. According to the
Blacks Law Dictionary a company is a union or association of
persons for carrying on a commercial or industrial enterprise; a
partnership, corporation, association, Joint Stock Company.

The term company is also defined in the case of SMITH V.

ANDERSON422 to mean a group of persons associated together
for the attainment of common end, social or economic or a
voluntary association of persons or individual formed for some
common purpose.

1.2 Types of companies

422
[1880] Ch. D 247

162
Companies have been classified in different ways. They may be
classified in terms of ownership or members: public and private
companies; in term of control: Holding companies and
Subsidiary Companies; in teems of incorporation: statutory
Companies, Registered Companies, Unregistered Companies
and Foreign Companies; in terms of liabilities: Limited
Companies and Unlimited Companies.

For the purpose of the question, our focus is on the classification

by liability. In this classification there are limited and unlimited.

Unlimited Liability Company is that company in which liability

of its members is not limited423 just as in partnership. Incase of
winding up their personal assets may be forfeited to contribute
to the assets of the company.

Limited Liability Company is that company which limits the

liability of its members to the amount unpaid in shares if it is a
company limited by shares or guaranteed to be paid by its
members if it is a company limited by guarantee. Therefore, a
company may be limited by either by shares or by guarantee.

According to section 3(2)(a) of cap 212 a company Limited by

shares is a company having the liability of its members limited
by the memorandum to the amount, if any, unpaid on the
shares. On the hand a company Limited by guarantee is,
according to section 3(2)(b) of cap 212, a company having the
liability of its members limited by the memorandum to such
amount as the members may respectively thereby undertake to
contribute to the asset of the company in the event of its being
wound up.

1.3 History of limited liability

423
op cit. section 3(2) (c)

163
In England up to 1844, the companies incorporated under joint
stock companies registration Act of 1844 were recognized as
unlimited liability companies. This is in the sense that their
shareholders had unlimited liability for the debt of the company.
Before the Act of 1844 the companies in England were
incorporated under the Crown charter. The charter provided that
a member of a corporation should be personally liable for the
debts of the corporation to such extent as the crown should think
proper.

During this period limited liability was subject of individual

contract between shareholders and creditors. Incase there was no
agreement to that effect the creditors could sue each shareholder
in a separate action or sue the richest.

By the middle of the 19th century the absence of limited liability

was frequently and strongly complained of. After some debate
limited liability Act 1855 was introduced by Bouverie, the vice
president of the board of trade as reform measures which would
help to vitalize the British business. He argued that increasing
number of companies were seeking incorporation under French
and American Laws to achieve limited liability.

As far as the question is concerned, we are of the view that

limited liability is among the greatest discovery in company law,
but not the only or single discovery. This statement can be
substantiated by showing the advantages of the limited liability
and other forms of discoveries.

2.0 ADVANTAGES OF LIMITED LIABILITY

COMPANIES

The first advantage is that it encourages prudent men to invest in

companies. This is due to the fact that they shall be liable only
on the amount unpaid in shares they hold or to the amount they
have undertaken to contribute to the asset of the company incase
of winding up.

164
The second advantage is that incase of winding up members
personal assets are not at risk of being forfeited. Members are
much secured because their liability shall be to the extent of
unpaid amount in their shares or what they have guaranteed to
pay incase of winding up. If a member is holding full paid up
shares he/she shall not have any liability at all.

The other advantage is that it is easier to raise capital in a

limited company. More specifically this is the case in public
companies limited by shares. These companies may raise capital
by issuance of shares to the general public. Members of the
general public will readily buy shares because they will have no
liability so long as they have paid for their shares.

Limited liability also facilitates optimal investments decisions

since a positive attitude to risk taking will ensue. A member of a
limited liability company is at a better position to –plan and
know the future of his investment status than a member in an
unlimited company who may be called upon at anytime to
contribute to assets of the company.

Last but not least, another advantage is that it allows

shareholders to diversify their holdings. In a public limited
company a member may sell or transfer his shares or any
portion of his shares to someone else at anytime. By doing this
he/she shifts his liabilities, if any, to the new holder of share
certificate.

However, in the case of a small private company, the advantage

of limited liability tends to illusory, since those who give credit
to the company and overdraft facilities will in practice require
personal guarantees from its directors and major shareholders424.

Apart from limited liability, there are other discoveries for the
smooth operation of the company. According to Meiner,

424
Keenaan, (1993) Smith and Keenan’s Company Law for students, 9th Ed., p.13

165
Mofsky, Tollison,425 the primary reason for the corporate form
of business is not only related to limited liability. They
mentioned other discoveries which are, 1) the marketability of
shares, 2) perpetual existence, 3) flexible financing methods, 4)
specialization of management and 5) majority rule.

3.0 OTHER DISCOVERIES.

3.1 Marketability of shares.

This is covered by section 63 of cap 212. The section provides

that, “the shares or other interest of any member of a company
shall be moveable property, transferable in a manner provided
by the articles of the company”. This helps in the good
performance because the marketability of shares will encourage
people to invest in companies since they are assured that they
may sell their shares whenever they are in need of money.
However, this right of transfer of shares can only be exercised if
it is provided in the article of association of the company.

3.2 Perpetual Existence

A company is juristic person with perpetual succession. A

company does not die or cease to exist unless it is specifically
wound up or the task for which it was formed has been
completed. Membership of a company may keep on changing
from time to time but that does not affect life of the company.
Death, insolvency, bankruptcy or insanity of the shareholder
does not affect the existence of the company. It means its life is
independent of the life of its members.

3.3 Flexible financing methods

In modern company law capital is used to cover share capital

and loan capital. Therefore, a company as compared to other
business ventures it may raise its capital in a variety of ways. It

425
Delaware Journal of corporate Law, p.351

166
may do this by issuing shares to the general public (Public
Limited Company) or issue debentures offering the general
public to subscribe to them, hence contributing to the asset of
the company.

3.4 Specialization of Management

The number of shareholders who are the owners of the company

is fairly large and hence all of them cannot take part in the
management of the company. The law therefore, provides for
the Board of Directors elected by members in the general
meeting of the company to govern the affairs of the company.
The shareholders are simply holders of the shares in the
company and need not be necessary the managers of the
company.

3.5 Majority Rule

This principle rule was recognized in FOSS V HARBOTTLE426.

This rule is also known as ‘proper plaintiff principle’. This case
expounded the rule that the decision or acts of the company may
only be effected by the decision of majority shareholders. If they
pass a resolution on a certain matter, the minority shareholders
can have nothing to do against that decision or act.

However, the principle in FOSS V HARBOTTLE has got some

exceptions. These exceptions protect minority shareholders if,
(1) the acts or decision of the company are ultravires, (2) the
acts or decisions are supported by insufficient majority, (3) the
acts of majority constitutes fraud on the minority, (4) it is
alleged that the personal membership rights have been infringed,
(5) there is a breach of duty, (6) there is oppression and
mismanagement.

426
[1843] Hare 461

167
Therefore, this rule together with its exception protects both the
interests of minority and majority shareholders in a company.

4.0 CONCLUSION

Having shown the above advantages and other forms of

discoveries in the control of company’s welfare, we reach to the
conclusion that limited liability is not the sole discovery in
modern times, there are other discoveries. Therefore, limited
liability is to co-exist with other discoveries for the smooth
running of the companies.

168
Qn:
Make a critical review of any five unreported cases on
company law in Tanzania explaining also their role in the
development of company law in Tanzania

OUTLINE

1.0 INTRODUCTION

2.0 MAIN BODY

2.1 CRITICAL REVIEW OF FIVE UNREPORTED

CASES SHOWING THEIR ROLE IN
DEVELOPMENT OF COMPANY LAW IN
TANZANIA

3.0 CONCLUSION

BIBLIOGRAPHY

INTRODUCTION

In answering the question given we shall discuss on the

principles which were dealt over in each of the five cases
we are required to deal with and also refer to the law reports
of Tanzania to see whether the same had been dealt over
previously (precedent). In case we find out that there is no
such precedent we shall look at the common law position on
the application of the principle. The application of common
law in our country is allowed by virtue of section 2 of The
judicature and Application of Laws Ordinance.

MAIN BODY
The first case we shall deal with In relation to the
development of company law in Tanzania is ;

169
 IN THE MATTER OF THE COMPANIES
ORDINANCE

CAP 212 OF THE LAWS OF TANZANIA

BETWEEN

M.P ENVIRONMENT COMPANY LIMITED

…………….APPLICANT/

PETITIONER
AND

THEREGISTER OF
427
COMPANIES…………………………..RESPONENT

This was a petition for the alteration of the memorandum of

association by the Applicant/Petitioner. The case concerned
the procedure for the addition of object to the object clause
of the memorandum of association.

The principle in the case could be summarised as follows;

In alteration of a memorandum of association “there must

be a company’s special resolution to allow for the same, the
alteration must be confirmed by court order and then such
alteration has to be registered to the registrar of companies”

The principle in alteration of the memorandum of

association is similarly stipulated in the companies’
ordinance cap 212 under the provisions of section 7 of the
ordinance.

THE POSITION AT COMMON LAW

427
MISC.CAUSE NO 31 OF 2003.(HC COMMERCIAL DIVISION)AT DAR ES SALAAM
(UNREPORTED)

170
 At common law before the 1948 the application of the law
was similar to what is now applied in Tanzania; that
alteration could only be done by special resolution
confirmed by the court .However The companies Act 1948
brought a new procedure as stipulated under section 5 of the
Act. The section makes confirmation by the court
unnecessary428 unless an application is made to the court to
cancel the alteration. such application as required by section
5(1) of the Companies Act 1948 is to the extent that
applicants who objects the alteration must either be
shareholders of not less than 15% of the total shares of the
company or debenture holders of the company with the
same percentage. this is to the effect that debenture holders
entitled to object to the alteration of the company’s objects
are holders of debentures secured by a floating charge
which were issued before 1 December 1947 or form part of
the same series as any holders are entitled to notice of the
special resolution.

This position at common law could be well elaborated in the

case of
RE CYCLIST’S TOURING CLUB429 in the case; the
memorandum stated that the object were to promote, assist
and protect the use of bicycles ,tricycles, and other similar
vehicles on the public roads the company proposed to alter
its power by admitting all tourists including motorist. it was
held that; the alteration must not be allowed as it did not fall
within clause (a) to (e) of the section: especially as one of
the objects of the company was not to protect cyclist against
motorist.
It can thus be stated that at common law the application of
the law has been modified in that to alter the memorandum
of association the requirement is to have a special resolution
which will approve for the same.

428
E.R .H.Ivamy ,(1970)Topham&Ivamy’s Company law 61
429
(1907) 1 Ch 269

171
 However under The Companies Ordinance Cap 212 the
position is that after the alteration of the memorandum such
alteration will come into effect only after it has been
confirmed by petitioning to the court as stated in section 7
(2) of the Companies Ordinance Cap 212.if the court
grants its confirmation order then a certified copy of the
order confirming the alteration together with the
memorandum of association as altered has to be delivered to
the registrar of companies within a period of fifteen days
after the grant of the order

Another case is:

IN THE MATTER OF COMPULSORY WINDING UP

OF
LUFT&CARGO LTD

BETWEEN

ABDULMOUNIUM SALEH JIDAWI

……………..PETITIONER

AND

LUFT TRAVEL AND CARGO

LTD…………………RESPONDENT430

THE PRINCIPLE DEVELOPED IN THIS CASE

A director does not qualify to petition and a share holder

qualifies only if the petition is based on default as to statutory
meetings and statutory reports here clearly in applicable.

430
MISC.APPLICATION NO 28 OF 2003.(HC COMMERCIAL DIVISION)AT DAR ES SALAAM
(UNREPORTED)

172
In dealing with the case the court considered the following
provisions of law;

S 167 of the Companies Ordinance CAP 212 which provides

that;
‘A company may be wound up by the court if;

(a) The company has by special resolution resolved that

the company be wound up by the court;
(b) Default is made in delivering the statutory report to the
registrar or in holding the statutory meeting;
(c) The company does not commend its business within a
year from its incorporation, or suspend its business for
thee whole year
(d) The number of members is reduced, in the case of a
private company below two, and in the case of any other
company below seven
(e) The company is unable to pay its debts;
(f) The court is of opinion that it is just and equitable that
the company should be wound up,”

While section 169 has the following:

“An application to the court for the winding up of a
company shall be by petition, presented subject to the
provisions of this section either by the company or by any
creditor or creditors (including any contingent or
prospective creditor or creditors, contributory or
contributories, or by all or any those parties together or
separately)
Provided that;
(a) A contributory shall not be entitled to present a winding up
petition unless

(i) Either the number of members is reduced, in a case of a

private company below two or in a case of any other company
below seven; or

173
(ii) the shares in respect of which he is a contributory, or some
of them, either were originally allotted to him or have been held by
him and resisted in his name for at least six months during the eighteen months before
the commencement of the winding up or have devolved on him through the death of a
former holder; and

(b) a winding – up petition shall not if the ground of the petition is default in
delivering the statutory report to the registrar or in holding the statutory
meeting be presented by any person except a share holder, nor before expiration
of fourteen days after the last day on which the meeting ought to have been held
;and
(c) the court shall not give a hearing to a winding up petition presented by a
contingent or prospective creditor until such security for costs have been given as the
court thinks reasonable and until a prima-facie case for winding up has been
established to the satisfaction of the court”

The issue discussed in this case was; whether petitioner had legal capacity to file
the present petition.
In answering the above what is required therefore is to look the petitioner in light of
section 169 of Companies Ordinance Cap 212 and see whether he falls under any of
the categories legally entitling him to petition for winding up of a company by the
court
The petitioner advanced several reasons in the case which entitles him to petition for
the winding up.

The court stated that under the provision of section 169 of Cap 212 a director has no
capacity to file for a petition for compulsory winding up of the company however a
share holder is allowed by law to file for such a petition. the petitioner in this case was
both a director and a share holder holding up to 50% of the shares of the company and
because he did not state specifically that he is suing in his capacity as a director then
the court considered the fist sentence in the petition which stated that “the petitioner is
a natural person who is a 50% share holder and director of the respondent company”
for this reasons the court stated that the petitioner has the requisite capacity

The position at common law is similar to that in our jurisdiction

Dr Kapoor 431 is of the view that ;Accompany does not often present a petition to have
it self wound up by the court as it can archive this object more conveniently by
passing a special resolution to wind up voluntarily. If a company in a general meeting
resolves that it shall however be wound up by the court it may present a petition for
winding up order, in the case of PATIALA BANASPATI & ALLIED
PRODUCTS CO.LTD432 where the application for the winding up of a company was
made by its managing director, it was rejected on the ground that managing director
or directors do not constitute the company for the purpose of winding up and the
petition by the company must have behind it the decision of the general meeting.

Thus it can be said that the position of common law and that in the Companies’
Ordinance Cap 212 is similar as considered in the case above.

431
N.D. Kapoor, Elements of Company Law,p443
432
R.E AIR (1953) PEP 195

174
Another case is:

IN THE MATTER OF THE COMPANIES ORDINANCE CAP 212

AND
IN THE MATTER OF A PETITION FOR WINDING UP TO TRI
TELECOMUNICATION TANZANIA LIMITED.

BETWEEN

TANZANIA TELECOMUNICATIONS COMPANY LTD

ANDTHREE OTHERS …………………………………………….PETITIONER
AND
TRI TELECOMUNICATION TANZANIA LIMITED……….RESPONDENT

This case involves the matter for a petition of TRI TELECOMMUNICATION

TANZANIA LIMITED, a private company incorporated in Tanzania in May 1994.
This company has shareholders TECHNOLOGY RESOURCES INDUSTRIES
BERHARD (a majority shareholder holding 60% of the shares) of Kuala Lumpur
Malaysia and VIP ENGINEERING AND MARKETING LIMITED (minority
shareholder holding 40% of the shares).

In the process of winding up the company by court action there are various situations
to be considered before the court grant that order. It has to consider if the company is
indebted as well as affairs of the creditor and shareholders. But in this case there are
allegations raised by petitioners against the respondent on various issues, through
those issues this case tries to see why the petitioners have filed this petition.

The respondent was required to pay THE TANZANIA COMMUNICATIONS

COMMISSION frequent fees and royalties but the respondent did not pay, it is now
indebted. The respondent entered into lease agreement with the TANZANIA
TELECOMMUNICATIONS COMPANY LIMITED and was required to pay for the
services and facilities it also failed to pay. THE TANZANIA REVENUE
AUTHORITY another petitioner had said the respondent had defaulted in the taxes.
Consequently, the Board of Directors of the respondent deponed in his affidavit the
confirmation of failure by respondent to pay his debts to the petitioners from failure
that arises out of fraudulent acts by TECHNOLOGY RESOURCES INDUSTRIES
which was managing the respondent shares. The VIP ENGINEERING
MARKERTING LIMITED claiming from the respondent a sum of money on the
basis of suspected fraud. All this explains why these windings up proceedings have
been filed, since the respondent failed to pay his debt.

Several issues were discussed in this case such as;

 The issue of locus stands of he VIP Engineering and marketing limited (fourth
petitioner) to apply to the court as a minority shareholder.
 The issue of fraudulent acts.

175
  The respondent company being indebted and cannot pay subjected to a
question to be wound up.
 The issues on appointment of provisional liquidator or liquidator as referred
under sections 184 and 287 of the Companies Ordinance Cap 212 to appoint a
Receiver/ Managers on behalf of the debenture holders or creditors of the
company which is being wound up by the court.

In answering these issues the court has referred to important provisions of the law
which guides these proceedings;

The issue of minority shareholders to have a locus stand to file a petition, Rule 33 of
the Companies (Winding Up) Rules of 1929 allows every person who has interest to a
company have the right to appear at the hearing of the petition, however this issue of
minority shareholders to apply to the court for winding up of the company on the
ground of oppression, section 167 (f) of the company Ordinance Cap 212 gives a right
to them and this is according to the opinion of the court that it is just and equitable.
The common law position recognizes the words just and equitable as of widest
significant and do not limit the jurisdiction of the court to any case and what is just
and equitable cause depends upon the facts of each particular case. 433 Moreover the
right of minority shareholders to petition is found in the following cases;

Ebrahim v Westbourne Galleries and others (1937) A.C 360.

Re a Company (No. 00596 of 1986) Ch.D 133
Blisset v Dnid, 10 Hare 493.
Symington v Symington’s Quarries Ltd (1905) 8F. 121.
Re Yenidje Tobbaco co Ltd (1916) Ch. 426.
Thomson v Drysdale 1925 SC 322.

It has been discussed that according to section 173 of the Companies Ordinance Cap
212 when the petition for winding up, the respondent had already been presented in
court, thus any attachment, distress or execution up in force against the estate to the
respondent become void to all intents.

It as well been provided under the law if in case of the winding up of any company by
the court it appears to the court desirable to appoint some other person to act as the
official receiver instead of the administrator general and assistant administrator
general, this is provided in section 179 of the Companies Ordinance Cap 212.

However on the appointment of the liquidator under the law Cap 212 section 188
provides while in the process of winding up the liquidator appointed by the court has
to take into his custody or under his control or the property and things in action which
the respondent is entitled and as well has a power to appoint an agent to do any
business which the liquidator is unable to do for himself. This is expressed under
section 190(2) (g) of Cap 212. Originally for an appointment of a provisional
liquidator, the circumstances now have changed giving evidence given by the fourth
petitioner that now it is asked for a liquidator instead of a provisional liquidator as per
section 182 of Cap212.And orders that the joint receivers/ managers of the respondent
under the invalid debenture shall prepare two statements of the affairs of the

433
Kapoor N.D, Elements of Mercantile Law, (1993), p 174.

176
respondent with accordance with Companies(Winding Up), Rules of 1929, Rules 76,
77 and section 188 of the Company Ordinance Cap 212.

The liquidator has power under section 190(2)(g) of Cap 212 to appoint experts to
investigate and submit to the court and including the relationship with the Citibank
Tanzania Limited.

Moreover the petitioner proposed the appointment of provisional liquidator or

liquidator because at the moment, there is no official receiver in existence in Tanzania
who could be appointed by the court as official Receiver liquidator; therefore an
administrator general was appointed as an official receiver under section 74 of the
Bankruptcy Ordinance Cap 25. The Court received no objection in this, so it does not
approve the appointment and ordered the cost incurred by joint receivers/ managers of
the respondent and taken out of the asset shall be recovered by the liquidator from the
Citibank Ltd unless court orders otherwise. The liquidator is to recover any money
paid by the Receiver/ Manager to Citibank Tanzania Ltd out of the assets of the
respondent.

In this process of winding up the company by the court, the court has a right to adjust
the rights of contributories among themselves and distribute any surplus among the
persons entitled thereto; this is as per section 207 of Cap 212.

Under section 210(1) of the Companies Ordinance Cap 212 the court may at any time
after making of a winding up order, summon before it any officer of the respondent or
person known or suspected to have in his possession any property of the respondent
be indebted to the respondent or any person whom the court deems capable of giving
information concerning the promotion, formation, trade , dealings, affairs or property
of the respondent, however the court has power to require the attendance of any
director or other officer of the respondent at any meeting of creditors or contributories
for the purpose of giving information as per section 211 of the Companies Ordinance
Cap 212.

In this case there was failure to pay debts to the TRI TELECOMMUNICATIONS
(The Petitioner) out of fraudulent acts by the TECHNOLOGY RESOURCES
INDUSTRIES, majority shareholder of the respondents company holding 60% of the
shares which was managing respondent share. The position of law in Tanzania
provides under section 269(1) of Cap 212 that in the course of the winding up of the
company of the respondent it appear that any business of the respondent has been
carried on with intent to defraud creditors of the respondent or creditors of any other
person or for any fraudulent purpose the court on applications of the liquidator or
creditor or contributory of the company may if it thinks proper declare any percent of
the creditors whether past or present who are the parties to carrying on the business
shall be personally responsible without any limitation for all the debts or liability as
the court direct.

Another issue which was discussed in this case is the question of the validity of the
debenture of which the petitioners were claiming to be invalid as against the Citibank
Tanzania Ltd. Allegations were brought that the Receiver/Managers of the respondent
avoided to bring a copy of the board Resolution which actually is he central issue
controlling the validity of the debenture, no proper meeting was held to check the

177
validity of the debenture by the resolution of the Directors. Also neither the court take
note that neither minutes nor a resolution was brought by the respondent to prove the
validity of it. The respondent said the debenture was registered and made a public
document, from this argument the court declared given the reasons the debenture
issued by the respondent to Citibank Tanzania Ltd and Citibank N.A Bahrain is
hereby declared invalid and cannot bind the respondent.

Section 184(1)(e) of Cap 212 shows the effects facing the Liquidator on a winding up
order that it is upon court to determine the liquidator on his appointment on which
with this case will base upon 12.5% gross realization. However section 187 of Cap
212 provides for remuneration. The position of the law on creditors and contributors
including all the petitioners in this case are required to prove to the liquidator the
debts and claim they allege against the respondent and the liquidator shall examine all
proofs of debts and claims as provided under Rules 89, 90, 91, 92, 93, 95, 104 and
105 of the Companies (Winding Up) Rules of 1929, and in doing so he shall be
guided together with Cap 212 unless ordered otherwise by the court.

Therefore with all the evidences adduced in this case on the basis of the application
by the petitioner to this court under section 167(1) (e) and (7) of the Cap 212, the TRI
TELECOMMUNICATION TANZANIA LTD is ordered to be wound up. A company
may be wound up if it is unable to pay its debt. The common law position is the same
as applied in Tanzania that if it is proved to the satisfaction of the court that the
company is unable to pay its debt the court may take into account the contingent and
prospective liability of the company434 In case of winding up the wishes of the
petitioner sought are important matters that affect their interests with the company
therefore the court has to consider them.

Another case is:

IN THE MATTER OF THE COMPANIES ORDINANCE

AND
IN THE MATTER OF SUPREME FURNISHES (T) LTD
BETWEEN
SUPREME FURNISHERS (T) LTD……………………PETITIONER
AND
THE REGISTRAR OF COMPANIES………………....RESPONDENT435

This is the commercial case no: 43 of 2003 between Supreme Furnishers (T)
Companies (Petitioner) and The Registrar Of Companies (Respondent). The
principle laid down in this case is Winding up of a company by the court. It shows
that after extraordinary general meeting, the Petitioner’s Board of Directors, by
special resolution resolved that the petitioner be wound up by the court on the ground
that the petitioner has no sufficient fund to resume operating and pay indebtedness to
its creditors as and when such indebtedness falls due.

434
Ibid
435
MISC.COMMERCIAL CASE NO 43 OF 2003.(HC COMMERCIAL DIVISION)AT DAR ES
SALAAM (UNREPORTED)

178
The court decided to wound up the company after realizing that the petitioner has
qualified the provisions of s. 167 of The Companies Ordinance Cap 212 (a) and (e)
together with s. 167 (f) which states;-

“A Company may be wound up by the court if-

(a) the Company by special resolution resolved that the Company be wound up by
the court
(b) …………………………………………………………………………..
(c) …………………………………………………………………………..
(d) …………………………………………………………………………..
(e) the Company is unable to pay debts;
(f) the court is of opinion that it is just and equitable that the company should be
wound up.”

After conducting a research we have seen that this principle of winding up of a

company by court is firstly laid down by this case, no other previous case applied
it.

Under Common Law the same principle of winding up of a by court is applied in

the same manner as in Tanzania, whereby the wound up by the court is on one or
more specified grounds. Of these grounds, one of them is that the Company is
unable to pay its debts and the next is that the court is of the opinion that it is just
and equitable that the Company should be wound up. Also it is noted that
company itself can opt for winding up by the court, since ground (a) is that the
Company has by special resolution resolved that the Company be so wound up.
(Danies, P.l. 1997, Grower’s Principles of Modern Company, p. 835).

Furthermore in Business Law

Including Company by Gulmshan, S.S and Kapoor, p.614-618 it was stated
that; the Company may be wound up by the court in the following grounds;
(i) By special resolution. The Company may by special
resolution, resolve that it be wound-up by court. The
resolution may be passed for any cause whatsoever.
However, the court may not order winding-up if it finds
it to be opposed to public interest or the interest of the
Company as a whole.
(ii) Inability to pay debts. The court order a Company to be
wound-up if it is unable to pay its debts.
(iii) Just and equitable. The court may also order for
the winding-up of a Company if it is of the opinion that it
is just and equitable that the Company should be wound-
up, Hind Overseas Pvt Limited v. Ihunjhunwala
(1977) ASIL X111

179
Also another case is .

IN THE MATTER OF SONGAS LTD……………………………..PLAINTIFF

AND
IN THE MATTER OF THE COMPANIES ORDINANCE (CAP212)
AND
IN THE MATTER OF THE REGISTRAR OF
COMPANIES………………………………………………… RESPONDENT436

This case involved a petition by songas limited for the confirmation by the court of
special resolution to extend the objects of the company

THE PRINCIPLE DEVELOPED IN THE CASE

(1) any alteration in the memorandum of association of the company must be made
by special resolution and the alteration can not take effect until conformed by the
court.

The principle reflects what is stipulated under section 7(1) and (2) of Companies
Ordinance Cap 212

Contribution of the principle to the development of company law.

The principle in this case intends to elaborate on how objective clause can be altered
in the memorandum of association of a company. That is to say it provides a
procedure for alteration of memorandum. However this can be taken as an authority to
prohibit any company to alter the provisions of its memorandum with out the consent
of the holder

CONCLUSION
Conclusively it can be said from the above analysis of cases one can say that at some
instances there is some developments in some aspects in the company law as it is
applied in Tanzania. However in other aspects such as those relating to the need of
court to confirm the alteration of the memorandum of association has to be changed
now because of globalisation the companies should be allowed to do their business
without involving the court unless there a dispute arises. this is due to the fact that in
case of having a lacuna in our law or if there is a problem in interpretation of the
statute our laws allows the application of interpretation of common law, hence the fact
that that law is now changed then our law should also change so as to go with the
changes in the world Today.

Qn:
What are important legal differences between a registered company and a
partnership? Do they have any similarities? Explain.

436
MISC.COMMERCIAL CASE NO 31 OF 2001.(HC COMMERCIAL DIVISION)AT DAR ES
SALAAM (UNREPORTED)

180
TABLE OF CONTENTS

1.0: INTRODUCTION
The meaning of partnership
The meaning of company

2.0 MAIN BODY

The differences between Partnership and Registered Companies
The similarities between Partnership and Registered Companies

3.0 CONCLUSION

4.0 BIBLIOGRAPHY

1.0: INTRODUCTION
Registered Companies and the Partnerships are amongst the major forms of business
associations. The other is the sole trader. The human inventive faced limitations
during the epoch of sole trader, thus the introduction of the partnership and the
corporations. Basically the two are the improvements to the sole trader.

A partnership is a legal relationship created by the voluntary association of two or

more persons to carry on business for profit. The same is defined as the relation which
subsists between persons carrying on business with a view of profit437. The relation of
partnership arises from contract and not from status438. According to
439
A.A.F.Massawe , Partnerships consists of two or more persons who are
contractually associated in the common ownership and management of a business440.

The word ‘company’ owes its origin from the Latin words ‘com’ meaning ‘with or
together and ‘Pains’ meaning ‘bread’. Originally it referred to the group of persons
who took their meals together. The word company has no strictly technical or legal
meaning441. It may be described to imply an association of persons for some common
object(s). Or a voluntary association of persons who have come together for carrying
on same business and sharing the profit therefrom
.
Lindley, L.J defines company as an association of many persons who contribute
money or monies worth to common stocks and employed in some trade or business
and who share the profit and income arising herefrom. The common stock so
contributed is denoted in money and is a capital of the company. The persons who
437
Section 190(1) of The Law of Contract Ordinance, 1961, Cap 433 (Revised Laws of Tanganyika.)
438
Ibid section 191(1)
439
A.A.F.Massawe, Legal Aspects of Partnership Management: A Guide to Managers and
Businessmen p.11
440
In their contract they are guided by the deed of partnership or articles of partnership which contains
names of the partners, the purposes of the business, the firm’s name, the duration of the partnership
contract and the amount of money or services to be contributed by each partner. The articles also
show the methods by which profits or losses are to be divided, the powers of the partners and provide
for dissolution of the firm.
441
Stanley, Re (1906) 1Ch 131.

181
contribute to it or to whom it pertains are members. The proportion of capital to which
each member is entitled is his share. The shares are always transferable although the
right to transfer is often more or less restricted442. This definition provides the precise
meaning of what a company is.

However it is the question of our paper which is centred on the distinction between
partnership and registered companies and thereafter discussing the similarities thereto
if any.

As it has been observed above, the term partnership is defined by the Law of
Contract Ordinance1961, Cap 433 (hereinafter to be referred to as Cap 433.) And on
the other hand in Tanzania, the term Company is defined by the Companies
Ordinance Cap 212 (herein below referred to as Cap 212) to mean, the company
formed and registered under this ordinance or existing Company443.

It is therefore the concern of our paper basically in starting approaching our question
by looking at the differences between partnership and the registered companies444.
Further this paper will endeavour to divulge the similarities between partnership and
registered companies as the question demands.

2.0: MAIN BODY

The two aspects, that is, a company and a partnership, have the following differences
as hereinafter discussed;

To start with, a partnership is sum total of persons who have come together to share
the profits of the business carried by them or any of them. It does not have a separate
legal entity445. While, a company is an association of persons who have come together
for the specific purpose. The company has a separate legal entity as soon as it is
incorporated. Unlike partnership, the company is distinct from the persons who
constitute it. Hence it is capable of enjoying rights of being subjected to duties which
are not the same as those enjoyed or borne by its members.

442
For Chief Justice Marshall, A corporation is an artificial being, invisible, intangible existing only in
contemplation of the law. Being a mere creation of law it possesses only the properties which the
charter of its creation confers upon it, either expressly or as incidental to its very existence.
443
Section 2 of Cap 212.
444
There are other incorporated companies such as those created by the special Act of the Parliament
to carry on some special undertakings and mainly owned by the Government referred as statutory
companies, Also there are unregistered companies which are basically not the Legal Entity but they
are companies for the purposes of winding up. Section 314 of Cap 212 provides the process by which
they may be put to an end. There are also foreign Companies which are incorporated in the country
outside Tanzania when establishes the place of business in Tanzania and complies with the
provisions of section 320A (1) is issued the Certificate of Compliance
445
In England the Law Commission has issued a Consultation Paper on Partnership Law as far as
introduction of Separate Legal Personality. In this there are two sub proposals such that: to confer
legal personality on all partnership without registration ,there would be a transitional period to allow
the parties to a partnership agreement to organise their affairs or to opt out of the continuing aspect
of separate personality of the firm. To make legal personality depend on registration. Under this sub
proposal only the registered partnership would have legal personality capable of continuing
regardless of changes of the members of the firm. Under this option non registered partnerships
would not have legal personality.

182
As Lord MacNaughten puts it;
“the company is at law a different person altogether from its subscribers…;
and though it may be that after incorporation the business is precisely the same
as it was before and the same persons are managers and the same hands
received the proceeds, the company is not in law, the agent of the subscribers
as members liable in any shape in form, except top the extent and in the
manner provided by the Act”446

In addition the liability of the partners is unlimited. For the registered companies the
liability of the shareholders of a limited company is limited to the extent of unpaid
shares or to the tune of unpaid amount guaranteed by the shareholders. In the
registered companies therefore the personal property of the shareholder cannot be
attached for the debts of the company if he holds the full paid up shares. Under
section 3(2) of Cap 212, the Company with limited liability can be either liable for
unpaid shares or guaranteed amount.

However companies may be formed with unlimited liability of members: Members

are liable till each person has been paid off. The liability of the company with
unlimited liability is different from the liability of the partnership in as much as
company being a separate entity, the money cannot be received from members
directly. Unlike partnership, liability of unlimited company is not joint and several;
the amount can be recovered through the contribution sought by the liquidator in the
process of winding up.

In this difference there is also partnership with limited liability in which one or more
of the partners have only limited liability for the firm’s debts447. The limited
Partnership is not a legal entity but can have unlimited number of members. There
must be one general partner whose liability for the debts of the firm is unlimited 448. It
has been stated in the case of SENKIN V PHAMACEUTICAL SOCIETY OF GREAT
BRITAIN449 that limited liability is the offspring of a proved necessity that men
should be entitled to engage in the commercial pursuit without involving the whole of
their fortune in that particular pursuit in which they are engaged.

Property of the firm belongs to partners and they are collectively entitled to it. The
company’s property is its own. The member cannot claim to be the owner of the
company’s property during the existence of the company. In the case of MACAURA
V NORTHERN ASSURANCE COMPANY450 In this case Macaura had insured timber
belonging to the company which at the time of loss Macaura was a majority
shareholder. The timber was destroyed whereby he sued the insurance company so as
he could be indemnified; it was held that the shareholder has no interest on the

446
Salomon v Salomon (1897) AC 22
447
These partnerships are not common because in most cases the objectives of limited liability can be
better achieved by incorporation as company. However they are increasingly used by institutional
investors, such as Insurance Companies and Pensions funds.
448
D. Keenan & S. Riches (2005) Business Law 7th Edition p.131
449
(1921) 1 Ch 392
450
(1925) AC 619

183
insured property of the company451. This case reiterated the principle that the
shareholder of the company can not claim the ownership of the company’s property
regardless of being the majority shareholder. In partnership there is also the
partnership property, section 195(1) of the Law of Contract Ordinance provides for
the property which can be claimed as the partnership property452. The property which
is acquired by the firm during the business period is taken to be the partnership
property.

The partner cannot transfer his shares in the partnership firm without the consent of
all other partners. He may assign his shares in the partnership provided the partnership
agreement does not provide to the contrary; but the assignee merely becomes entitled
to the financial benefits in respect of the shares and he does not become a partner
unless other partner(s) of the firm agree453. In the case of a company, shares may be
transferred without the permission of the other members in absence of any provision
to the contrary in the articles of association of the company. When a member transfers
his shares to another person, the transferee steps into the shoes of the transferor and
acquires all the rights of the transferor in respect of those shares 454.

There must be at least two members in order to form a partnership firm. The
maximum number of the members of the firm is twenty455. However partnership may
be formed by more than twenty persons in the case of solicitors, accountants and
stock brokers456. The minimum number of members necessary for a public company
is seven and two for a private company. For the public company the maximum
number of the members is up to infinity while the maximum numbers for the private
company is fifty. This also forms the basis of distinction especially between
partnership and the public company.

On the death of any partner, the partnership is dissolved unless there is provision to
the contrary457.On the death of the shareholder, the company’s existence does not get
to an end. This gives the company the characteristic of perpetual succession, that is, a
company as a juristic person does not die or cease to exist unless it is specifically
wound up or the task for which it was formed has been completed.

451
In GRAMOPHONE & TYPEWRITER LTD V STANLEY (1908-10) ALL ER 833 (CA) it was
stated that the property of the company is not the property of the shareholders; it is the property of
the company.
452
In the case of MILES V CLARKE (1953) 1 ALL ER 779 “C ‘’ carried on business as
photographer at premises of which he owed the lease for 7 years from 1948. In 1950 he and ‘’M”
who was the freelance photographer entered a partnership by which all the profit was shared equally
“M’’ brought within his personal connection. The parties quarrelled and the dispute arose as to
whether the following items constituted partnership property. ( i)The consumable stock-in-trade (ii)
The personal connection brought in by each partner (iii) The lease of the premises (iv) The furniture,
fittings and equipment of the studios. The court held that the only agreement was as to the share of
profits, only the consumable stock-in- trade should be regarded as partnership property.
453
N.D. Kapoor (2003) Elements of Company Law 27th edn p.13
454
Under section 27 of Cap 212 the private company restricts the right to transfer its shares. Therefore
in the private company there is no free transferability of shares.
455
The restriction is mostly enforced to the partnership of banking and other business. See G. Roberts
& W.T. Major, (1967) Commercial and Industrial Law 2nd edn. p.112
456
Ibid
457
Under section 213(1) subject to any agreement between the partners partnership is dissolved as
regards all the partners by the death or bankruptcy of any partner.

184
The management of the company is separate as is administered and managed by its
managerial personnel i.e. the Board of Directors. The shareholders are simply the
holders of the shares in the company and need not necessarily be the managers of the
company. On the other hand, every member of the partnership firm may take part in
its management unless the partnership agreement provides otherwise. Even if the
agreement provides otherwise, each partner still has ostensible authority to bind the
partnership by contracting as its agent and may render it liable for torts committed by
him458.

On the aspect of powers, a partnership firm can do anything which the partners agree
to do and there is no limit to its activities; a company’s powers are limited to those
allowed by the objects clause in its memorandum of association. Further a partner
cannot enter into contracts with his firm without disclosing his interest to the other
partners. A member of a company can enter into contracts with the company without
disclosing any such interest.

Having seen the differences between the partnership and the registered companies,
there are some similarities between the two;

To start with is the minimum membership. The partnership has the minimum number
of two members so does the private companies. Section 3(1) of Cap 212 provides for
the minimum number of the private company.

Thereafter, is the aspect of liability, while the same on the part of the partnership is
unlimited, there are some companies which also have unlimited liability. This on the
part of companies has to be shown within the liability clause.

Furthermore, is on the point of transferability. In a company there are restrictions on

the transferability of shares which are the same as that of partnership. However it has
to be noted that this similarity on the part of a company falls on private companies
only, of which has to be exercised as per pre-emption clause and on the partnership,
the law require such transfer to be exercised upon the consent from other members of
the firm. But our emphasis here is to show that within the two there exist some
restrictions on such transferability.

3.0: CONCLUSION.

To conclude our considered work we wish to note that the distinctions between
partnership and registered companies which primarily are evidenced by the features of
limited liability on the part of registered companies and unlimited liability on the
party of partnerships are no longer absolute. The introduction of limited liability
partnership and the proposal for the formation of legal personality is taken as the
factor which is eroding the differences between Partnership and Registered
Companies. However the situation in Tanzania is that the hegemony of Registered
Companies and the distinction over the partnership is still persisting as the Law of
Partnership in this country has not changed. In England for instance the notable

458
Kapoor op. cit

185
changes in the Law of Partnership is the introduction of the Salaried Partners 459 and
the introduction of limited liability partnership.

459
This type of partnership is very common in professional practices of solicitors and accountants to
offer young assistant the salaried partnership without the assistant putting any money in the firm as
the general partner do. They are not partners for the purpose of dissolving the firm. However
because they do appear in the letter heading as partners if the outsiders relied on their status as
such the court held in the case of STEKEL V ELLICE (1973) that they will be liable.

186
4.0 BIBLIOGRAPHY

STATUTES.

The Law of Contract Ordinance, 1961 Cap 433 (of the Revised Laws of
Tanganyika.)

The Companies Ordinance, Cap 212

The Trade Unions and Labour Relations ( Consolidation) Act, 1992. ( U.K)

BOOKS
.
Anderson, R.A, 1980, Business Law, 11th edn, South Western Publishing
Company, Ohio

Hannigan, B. (2003), Company Law, Lexis Nexis Butterworths, London.

Kapoor, N.D, 2003, Elements of Company Law, 27th edn, Sultan Chand & Sons,
New Delhi.

Keenan, D, and S. Riches, 2005, Business Law, 7th edn Ashford Colour Press,
Gosport.

Rennington, R. (2001), Company Law, 8th ed, Butterworths, London.

Roberts, G, and W.T Major, 1967, Commercial and Industrial Law, 2nd edn,
McDonald & Evans, London.

Singh, A, 2001, Company Law, 13th edn, Eastern Book Company, Lucknow.

MIMEO

Massawe, A.A.F, Legal Aspects of Partnership Management: A Guide to

Managers and Businessmen

187
ALTERNATIVE DISPUTE RESOLUTION QUESTIONS AND ANSWERS

QUESTION: Give a critical comparative analysis between ADR mechanisms and

court litigation.
OUTLINE

1.0 Introduction

2.0 Concepts of Disputes Settlement.

3.0 Brief History of Disputes Settlement Mechanism

4.0 The Comparison between Alternative Dispute Resolution and Court Litigation.

5.0 The Contrast between Alternative Dispute Resolution and Court Litigation.

6.0 Conclusion

7.0 Bibliography

1.0 Introduction.
In any society disputes are likely to occur, following there are various methods
established by various societies in settling disputes. These methods depend on the
level of development and socio-economic factors of particular society. In answering
the question we are going to examine critically the comparative analysis between two
mechanisms of dispute settlement, these are ADR and court litigations. Prior to that
we shall look at the meaning of ADR and what is meant by court litigations, and will
further give a brief history of dispute settlement mechanisms and we will end up with
a conclusion

2.0 Concepts of Disputes Settlement.

ADR is an acronym, which stands for Alternative Disputes Resolution. As the name
suggest for itself, it is an alternative process of resolving disputes without going to
court of law. Under this process it involve negotiations process, neutral case
evaluation, arbitration, reconciliation and mediation.

ADR is the modern scheme of procedure for settlement of disputes, which has been
introduced and implemented at the middle levels of the court system in Tanzania in
response to a pandemic problem facing the administration of justice in the country
that is, congestion and excessive delays in the disposal of cases in the courts. The
process of dispute settlement involves the professionals or trained persons or
conciliator.

It accounts for efficiency of new judicial system where by it ensures justice is done
while the parties spend little time and low expenses, leaving the parties harmonized
and solemnized.

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By court litigation, sometimes referred to as adversarial system, is meant as a set
piece trial in which both sides confront each other before the presiding judge or
magistrate as the case may be. The parties are involved in a sort of a fight or combat
and are envisaged as adversaries who accuse each other in the presence of the
unbiased or impartial umpire, thus the term “ adversarial”.

The legacy of this system is the due process of law that “ justice must not only be
done, but must seen to be done”. This is effected through an exact procedure where
evidence is adduced and allowed to be challenged and the existence of a disinterested
umpire to conclude which side was right.

In court litigation courts play passive role, that is, act under judicial ignorance of the
case. There are three principles under court litigation that is party investigation, party
presentation or prosecution and dispositive election. In order for adversarial system to
operate better there are three things, which must be present, that is, legal literacy,
enough lawyers and better economic position (financial position).

3.0 Brief History of Disputes Settlement Mechanism

The history of dispute settlement mechanism can be characterized into three faces;
these are pre-colonial era, colonial era and postcolonial era.

Pre- colonial era.

In pre- colonial era the mechanism that was used in solving dispute was traditional
system. These involve different modes, which could either be through mediation and
conciliation or coping with wrong doing by shaming and sorcery and invocation of
supernatural forces against the deviant individual. It could also be by means of
ordeals, contest or retaliation.

The society in this era was one, which was less structured and articulated, and their
social organization was based on kinship. A society in which the running of public
affairs is a matter of concern for the whole community, which is characterized by
equality. In this society public power therefore is not institutionalized but rather a
function of the social organization as such. Social rules in this society were reflected
in long experience on those modes of behaviour necessary for the reproduction of
social life and for group survival in their struggle with nature.

In this period, sanctions for the violation of social rule in the society were not
implemented of coercive power but reaction of the whole society, for example, by
declaring a deviant individual outcast. During this era disputes were settled amicably
and the end result is compromise rather than confrontation. The main idea was that
the parties to a dispute should win a little and loose a little.

Colonial era.
This is the period where the society started to change from the traditional method of
disputes settlement to the modern one, which based on adversarial system of dispute
settlement which is our main concern in the Tanzanian history of dispute settlements,
and inquisitorial system of dispute settlement.
We are concerned with particularly adversarial system since it is the one that we
adopted from the colonialists. At first time it was introduced by the Germans colonial

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rule here in Tanzania mainland by then known as Tanganyika. Later on, the
adversarial system came to be much emphasized and cemented by the British
colonialists here in Tanzania mainland, after having defeated the Germans colonialists
in the First World War, through the enactment of the Tanganyika Order in Council
1920 under article 17 which established the High Court of Tanganyika.

The end result under adversarial system, also termed as court litigation, takes the form
of the winner takes all. Under this system there exist formal institutions for processing
disputes known as courts of law. The courts are managed by judges and magistrates
and other law officers. These people have specialized knowledge and skills and know
how to apply definite substantive and procedural rules to disputes, which come before
courts for adjudication.

Post-colonial era.
After independence court litigation still base on adversarial system as a major means
of dispute settlement mechanism since section 2(2) of the Judicature and Application
of Laws Ordinance, 1961 as amended by Magistrates’ Courts Act, 1963, Schedule VI
does retain the system.

Although the adversarial system is still retained and applied, the system has its
shortcomings that appear problematic in administration of justice in Tanzania. For the
system to be successful it requires to have three fundamental things, namely, legal
literacy; enough lawyers; and better economic position. Apart from that reason, also
the system has complex rules of procedure; the size of judiciary was small and
insufficient supply of funds. These led to the delays of resolving disputes under this
system and thereby congestion of cases in our courts. Due to these reasons
stakeholders decided to formulate a new system, which is Alternative Dispute
Resolution that would supplement adversarial system.

This formulation came into being as a result of His Lordship the Chief Justice of
Tanzania when he visited the United States of America where he happened to come
across the mechanism of ADR in the Superior Court of the District of Colombia,
Washington. Being appealed by the system, the Chief Justice in 1993, went ahead in
introducing the idea of ADR system at a Judges seminar held in Arusha that was
seriously discussed. Thereafter, the Chief Justice appointed a committee headed by
Judge Mrosso, which had to consider the possibility of introducing ADR. After two
months, the Committee prepared a report recommending the introduction of
mediation as a mode of ADR. To start with, in 1994, three resident magistrates went
to Washington to study mediation for one month. When they came back they trained
judges and resident magistrates in Dar es Salaam, Mwanza and Arusha zones as pilot
areas. The system has been given a legal force under the G.N 422 of 1994, which
amended the first schedule to the Civil Procedure Code, 1966.

4.0 The Comparison between Alternative Dispute Resolution and Court Litigation.

Both are mechanisms of dispute settlement. For instance, for adversarial system to
come into action, the parties must be involved in a sort of a “fight” or combat and
thereby envisaged as adversaries who accuse one another in the presence of the
unbiased or impartial umpire, thus the term “adversarial”. When the parties in dispute

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come before the impartial third party, it is when the adversarial system comes into
play to solve the misunderstanding under which the parties are into. Likewise, in
ADR, as the name suggests for itself, it is an alternative way of finding resolution
between parties who are in dispute. Therefore, these two methods have the same
objective of resolving the disputes arising in our daily lives, thus creating a conducive
environment for people to live in.

Furthermore, all the two methods involve impartial third party who may give decision
or opinion or even direct parties in reaching a well-established outcome. However, in
the case of ADR, especially on the aspect of negotiation, always does not involve the
third party presence, only parties in dispute are the ones who will sit and discuss the
arising differences between them. Though the impartial third party under court
litigation plays a passive role in settling disputes and the parties play an active role for
producing their evidence and arguments in supporting their allegation before the
court, in the end, the impartial third party will have to give a decision, which will bind
all parties in question. Likewise, under ADR system, the impartial third party, for
example, in the aspect of mediation, the mediator acts as facilitator of the proceedings
in resolving the dispute by preparing the meeting of the parties in dispute, he does not
give an opinion of the case rather he tactfully lead the parties to assess their relative
interests and positions and evaluate their own cases by an earnest exchange of
information, ideas and alternative solutions.

Further ADR and court litigation, share some common rules of evidence and
procedure. These rules of evidence and procedure include the parties in dispute to
produce evidence, witnesses and arguments to support or oppose their cases. These
rules are applied both in these two methods of dispute settlement, but the point to note
under this is that, not all ADR methods involve the rules of evidence and procedure, it
is only arbitration process which is governed by these rules as provided for under the
Civil Procedure Code (Amendment of Schedules) Rules, 1994. In other processes like
mediation, there are flexibilities for the application of these rules of evidence and
procedure; therefore, the court on certain circumstances may apply the rules and in
other circumstances may not. In circumstances where the rules are not applied, the
parties will not be required to call witnesses nor to produce evidence to support their
cases.

Moreover, both mechanisms of settling dispute, allow representation. This means in

court litigation parties are free to hire a person who can represent him before the court
of law. But this happens where parties are illiterate on the subject matter in issue.
Meanwhile, in ADR, parties to a dispute are also allowed to be represented by an
advocate. But taking into consideration that, not in all the types of solving the dispute
under the alternative dispute resolution representation is allowed, this specifically
bases on arbitration cases whereby parties to a dispute can be represented by an
advocate or any other person he who wishes to choose.

Also, the decisions of both systems are binding. No doubt that under the court
litigation, the decision that is made is binding in nature, due to the reasons that the
witnesses are brought and evidence adduced before the court. The court on making
decision will rely upon the evidence adduced and therefore making a decision that
will bind parties to dispute. Not only that but also in ADR, on the part of arbitration, if
the parties have agreed that they will be bound by the arbitrators decision, he will

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render an award which is binding on them and which is executable as a judgement of
a court. While in mediation, the decisions will bind the parties if the agreement they
reached at is recorded and signed by both parties.

In both systems, there is parties’ participation in the prosecution of their case, that is,
parties present their evidence in support of allegation or against the allegation. The
parties are to bring documents and witnesses to testify their position. This is because,
the parties are the ones who know the subject matter of their dispute, while the court
or the impartial third party plays under judicial ignorance and they will get knowledge
of the dispute as the parties present their case. The impartial third party is there to
hear the facts brought by the parties and his decision will depend on presentation of
the facts by the parties.

In both, that is, court litigation and ADR, it can be said that the doctrine of Res
Judicata applies. Res Judicata implies that, no court shall try any suit in which the
matter directly and substantially in issue has been directly and substantially in issue in
a former suit between the same parties or between parties under whom they or any of
them claim litigating under the same title in a court competent to try such substantial
suit or the suit in which such issue has been subsequently raised and has been heard
and finally decided by such court. The aim of this doctrine is to avoid trying or
deciding the same case or suit, which has already been dealt upon. Similarly, in ADR,
like in court litigation, once a dispute has been dealt upon and found a resolution, the
parties will not be allowed to return to the same impartial third party or umpire and
listen to the dispute a fresh, rather the disputants if unsatisfied by the outcome, may
go further to another step, for instance after failure of mediation the parties may go to
arbitration or court trial.

5.0 The Contrast between Alternative Dispute Resolution and Court Litigation.

ADR and court litigation, despite the fact that they share some common features, the
two systems of resolving disputes do differ as follows:

Under the court litigation, normally courts are bound by the common law doctrine of
precedent. This common law doctrine presupposes that, the previous binding
decisions of superior courts within the same judicial hierarchy are accorded authority
by courts lower in the hierarchy (vertical obligation) and appellate courts are bound
by own decisions (horizontal obligation). While in ADR, there is no room for such a
doctrine to apply, since the system does not have the hierarchy system and it does not
have the tendency of recording its own decisions, for the system is mostly based on
the willingness of the parties to reach a compromise.
Also, ADR does not involve strict rules of evidence and procedure, for any law,
which may force them to follow, does not govern the parties in dispute. While in court
litigation, judges and magistrates and other law officers manage the courts. These
people have specialized knowledge and skills, and know how to apply a definite
substantive and procedural rules to disputes, which came before courts of law for
adjudication.

ADR involves an impartial third party who will be chosen by the parties themselves,
but in court litigation the parties are not at liberty to choose their own impartial third

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party. The umpire plays passive role in court litigation, while in ADR; the third party
plays an active role. In court litigation, there is what is called dispositive election, that
is, the parties are the masters of procedure litigation. This implies that any procedural
step taken in civil case must be taken by the parties themselves. The parties have
option to take the particular procedural step or not. While under ADR, the role of an
impartial third party is to guide the parties to reach into decision hence; he is
supposed to direct the parties on how to solve their dispute.

Furthermore, ADR and court litigation can be distinguished on the point of

confidentiality. As a general rule, court proceedings are handled in open court, in
which case the duty of confidentiality cannot be observed. Though, there are certain
matters, like juvenile cases, which are handled in camera. While, under ADR, the duty
of confidentiality has been greatly observed because matters under this system are
handled in secret surrounding environment in which case the discussed matters are
only known to the three parties alone, that is, the disputants and the impartial third
party. In other cases, like in negotiation, the parties themselves only know the matters
in dispute. However, sometimes under ADR, such duty cannot be observed like in
cases of arbitration processes where parties are required to call witnesses to testify in
support of their case.

Another distinction is that, under ADR system, there is the principle of win a little and
loose a little, which intends to bring harmony and good relationship among members
of the society. Whereas, in court litigation, the principle applicable is that of winner
take all, hence, the parties leave the court as enemies.

Moreover, in court litigation, the disputants will incur more costs by calling witnesses
and the fact that the complexity of the rules of procedure and evidence necessitates
the need to call experts (advocates) to handle or prosecute their case, which will lead
to expenses. Also, there are costs of preparing and filing documents, which will assist
parties during court litigation, such as plaint, written statement of defence etc. On the
other hand, it is less costful to institute proceedings in ADR, since there is less
involvement of the above processes and documents as in court litigation.

6.0 Conclusion
Having critically looked into the comparisons and differences of the two mechanisms
of dispute resolution, it is our conclusive remark that, despite the fact that the two
systems have some differences, but also have similarities. Both of them aim at solving
disputes between parties and furthermore, ADR was re-introduced so as to
supplement court litigation for the avoidance of bulkiness and delay of cases.

Qn: “ADR is not intended to supersede altogether the traditional means of

resolving dispute by means of court litigation. It offers only limited alternative
option to court litigation” Critically discuss the above contention

TABLE OF CONTENTS.
1.0 INTRODUCTION.

2.0 MAINBODY: Critical discussion on;

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 2.1 Whether ADR is not intended to supersede altogether the traditional means
of resolving disputes by means of court litigation
2.2 reasons behind as to why ADR is regarded as an alternative to the court
litigation
2.3 Whether ADR offers only limited alternative options to court litigation.

3.0 CONLUSION.

BIBLIOGRAPHY.

1.0 INTRODUCTION.

Alternative Dispute Resolution hereinafter referred to as ADR, is a modern scheme of

procedure for settlement of disputes, which has been introduced and implemented in
the middle levels of the court system in Tanzania in response to a pandemic problem
facing the administration of justice in the country. The problem is one of congestion
and excessive delays in the disposal of cases in the court. 460 Thus ADR refers to all
those methods of resolving a dispute, which are alternative for litigation in the courts.
ADR processes are decision making processes to resolve disputes that do not involve
litigation or violence, it includes variety of processes through which litigants or
potential litigants may resolve their disputes. Unlike the courts, which use adversarial
processes, ADR focuses on effective communication and negotiation.461

ADR includes forms such as negotiation where by the parties to dispute meet and
settle the dispute without the assistance of a third party, mediation in which the parties
to dispute reach a voluntary settlement with the help of facilitator called a mediator
who acts as an umpire and his or her role is to provide a ground for settlement of
dispute for the parties to reach their decision on their own, and arbitration in which
the parties chooses a third party who hears both parties in dispute and render a
decision.462 Other forms are Conciliation and Early Neutral Evaluation in which a
third party hears both parties in dispute and evaluates the case telling the parties of
who will win or lose if the matter is taken to court or for arbitration.

Before Tanganyika became independent, the colonialist introduced the adversarial

system in our courts,463 even after attainment of independence the system remained464

460
D. P. Mapigano, et al, (1998), Manual for Mediation Training in Tanzania pp. 1-2.
461
A.K, Bansal, (2005), Arbitration & ADR, P. 15
462
Found in “A beginners’ Guide to Alternative Dispute Resolution” 2 June 1998, source
www.adv.org/guides/guide.html
463
Under Article 17 (2) of The Tanganyika Order in Council 1920 (22nd July, 1920) Tanganyika
received the English common law, Doctrines of equity and statutes of general application. It is
implied that through these laws which were received in Tanganyika the substantive and procedural
laws of England were received. As far as procedural laws are concerned the English Adversarial
system of dispute resolution was implied in that reception. Further even the other laws which were
received in Tanganyika after the Reception Date that is those which were received in Special
Receptions relied on the adversarial system of dispute resolution.

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the same, although it has been seen that, the system is not suitable for in every case
adversarial system is suitable where the community is literate and where there are
good economic conditions and enough lawyers. This was once stated by Biron J, in
the case of JOHN MAGENDO V GOVANNI.465 To solve the problem the British
Colonial Regime in Tanganyika established resolution of dispute by way of
arbitration by the enactment of the Arbitration Ordinance 466 which is an offspring of
ADR as it encourages people to refer their disputes to arbitration rather than to
litigation.

In 1994, ADR was introduced in Tanzania Mainland, when the Chief Justice of
Tanzania visited United States of America and found the mechanism of ADR applied
there with success. It was later agreed that ADR system be introduced in our civil
justice process. The Civil Procedure Code was thus amended to incorporate the ADR
procedures. The amendments had references to the first schedule, Order IV was
amended by adding to it rule 3 which was to the effect that four days after the case
has been filed the judge in charge has to assign the case to an independent judge or
magistrate who will take the dispute through the mediation process.

Also three new orders were added in Order VIII, namely, Orders VIIIA, VIIIB and
VIIIC. Hence mediation was recommended as form of ADR to apply. In Tanzania
mediation is court-annexed, meaning after a civil case has been filed in court,
summons have been dully served, all pleadings and preliminary issues and objections
resolved, a time for mediation is fixed. When the court decides that the parties should
go to ADR it appoints the mediator, not the parties467 the reason behind being that in
Tanzania there are no enough trained personnel to conduct mediation.

Further it has to be noted that ADR in Tanzania is a creature of statute, after

recognising the importance of ADR, The Constitution of United Republic of
Tanzania, 1977. Article 107A was amended to confer court constitutional mandate to
promote reconciliation between the parties.468 Also the Civil Procedure Code provides
for ADR under Order IV, VIIIA, VIIIB, VIIIC, and in the second schedule of the
Code.

1.0 MAINBODY.

2.1Reasons as to why ADR is not intended to supersede altogether the traditional

means of resolving disputes by means of court litigation.

It can be argued that, it is true that ADR does not intend to supersede the traditional
means of resolving disputes by means of court litigation, as the word supersede
means: to take the place of something that is considered to be no longer best

464
Adversarial system was retained under section 2(2) of the Judicature and Application of laws
Ordinance Cap 453 1961.the same had been retained after several amendments which ultimately lead
to the introduction of the Judicature and Application of Laws Act [Cap 358 R.E 2002] under section
3(2) of the Act.
465
[1973] LRT n 60
466
Cap 15 of the Laws of Tanganyika.
467
Mapigano op cit p. 9
468
The Court of Appeal of Tanzania (2004) the History of Administration of Justice in Tanzania.
1st ed. pp 78-79

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available.469 Form this definition it can be observed that ADR is merely a modern
system of dispute of settlement, which aim not as supersede, but as an alternative
means of settlement to the court litigation. Owasanoye pointed that: -
“…Some people see ADR methods as supplanting the adjudicatory system, but if
considered from the angle that the courts in many jurisdiction are unable to
resolve all disputes in a manner appealing to litigants, then ADR methods will
be accepted as complementing the litigation system…”470

However there is a rationale behind the establishment of ADR system of dispute

resolution as the ADR is regarded as an alternative or complement to court litigation.

To start with, courts in Tanzania face problems especial one of congestion and
excessive delays in the disposal of cases. This is due to the fact that, in Tanzania the
traditional judicial process for resolving civil disputes is formal, involving technical
and complex rules of evidence and procedure, about which the average litigants
knows nothing or little thus led to backlog of cases in courts.471

In addition, the said producers, formalities and rules of evidence in turn bring another
problem that is time consuming, as parties must adhere to the rule of procedure in
adversarial system. In this aspect the parties play active roles, to collect evidence, to
produce their witnesses before the court unlike in ADR for instance in mediation
where witnesses are not called and thus the parties settle their disputes.

Furthermore, a full blown judicial trial takes a long period of time to come to an end
as compared to the ADR which takes short period. ADR in essence focuses on the
public policy that “interest reipublicae ul sit finis lituum” meaning that, “it is in the
interest of the public that litigation should come to a speedy end”. Being driven
under the auspices of this maxim it will be easier for the parties to get back to the
production. In the court litigation for the case which could take a year or more it is
likely to take shorter time in the ADR system. For example technicalities such as the
stay of execution which is normally applied by the judgement debtor can prolong the
execution of the judgement as it is the common feature of the appellate court to be
congested with many cases. This does not feature in the ADR system especially in the
mediation whereby the parties agree substantially on decision given.

Meanwhile, a technicality of cases is another factor for the need of ADR. Usually
ADR proceedings are presided over by persons who are experts over the respective
subject.472 Hence it facilitates in having speedy litigation. While in the normal court
processes a judge or magistrates may need to research and make readings over an
aspect which they do not have knowledge and thus resulting in delay of cases

In the mean time, the inadequate number of judges and magistrates is another factor
which causes delay of cases hence the need to opt ADR as an alternative dispute
mechanism to the court system. Mostly judges are few compared to the numbers of

469
A. S. Hornby, (2002), Oxford Advanced Learner’s Dictionary, 6th Edition, p. 1203
470
V. Agarwal & B. Owasanoye, “Dispute Resolution Mechanism & Constitutional Rights in Sub-
Sahara Africa”, in Alternative Dispute Resolution Methods p 32
471
Mapigano op cit p. 1
472
The good example is the arbitration proceedings in which the arbitrators are required to have the
knowledge of law and the knowledge of the requisite subject matter in dispute

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cases filed in the High Court and those which goes for appeal in the Court of Appeal
of Tanzania.

In the ADR system parties are free and they feel that they are the facilitator of the
decision given in the negotiation, arbitration and mediation as they participate in the
discussions formally and informally in the decision making. This is unlike with the
court litigation procedures whereby the parties meet the strangers and they have no
room for the selection of the judge or magistrate. With this advantage on the part of
ADR it has been taken as an appropriate way compared to court litigation. This only
serves as the way to reduce the burden of the court and not a kind of replacement as
stated by the statement of the question.

Also ordinarily the proceedings are held to be in open court where the atmosphere can
be stiff and charged hence lead to lack of privacy; the language used is sometimes
unintelligible to the common man. Little wonder that many litigants become ill at
ease. Therefore with the introduction of the ADR system the intention is to remove
such wonder from the litigants and not to replace the aim of the court litigation.

In actual fact traditional litigation is perceived to be the process which favours the
rich, the educated and the articulate, not only that it is perceived to be the process
which breeds or fosters animosity between the parties. With this perception the
introduction of the ADR was taken as of paramount importance. The system to some
extent has become successful and the outlook of the people on the court litigation that
it fosters animosity can be escaped by those who opts the ADR system so the aim here
is not replacement but the introduction of the alternative way of ensuring that justice
is done.

Therefore, due to the ills obtained in the traditional civil process for ages, courts in the
world as well as in Tanzania have acknowledged the reality of these shortcomings.
Hence the courts have sought effective ways of dispensing justice faster, less costly
and less formally by introducing the new methods of resolving dispute as an
alternative to traditional litigation that is ADR system.

2.2 Reasons behind as to why ADR is regarded as an alternative to the court litigation.

The fact that, ADR is voluntary means the parties participate because they want to
resolve a dispute or problem; it promotes efficiency and prevents delay. The parties
themselves control the mechanism of settling dispute with the help of a facilitator;
although the degree of control varies with the technique selected, hence ADR
becomes too fast. For instance a dispute can be resolved for a few hours or weeks
compared to the court litigation, which may take more than six years.

Also unlike the courts, the parties have the freedom to choose the applicable law, a
neutral third party to act as Arbitration/conciliator in their dispute, on such days and
places convenient to them and also fix the fees payable to the third party. 473

473
Bansal op cit.18

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Also ADR helps the parties to preserve their relationship by encouraging them to
come to agreement. This is important because if there will be any contract of any type
between them it will be easy to enforce it for instance people involving in business or
employment. Thus mediation is most effective when parties are desirous of
maintaining a continuing relationship.474

Another advantage of ADR is that, there is ability to use a neutral party who is an
expert in the subject matter of the dispute, hence it reduce time needed to educate a
judge about technical aspects of a dispute and increasing the confidence of the parties
that the result will be well informed.

Further, ADR emphasizes communication; sometimes a party in negotiation will be

disappointed with the result, feeling that the other side simply didn’t understand his or
her position. Facilitated ADR, however, focuses on communication between the
parties, which is, trained intermediary helping each party to understand each other’s
side.475 This is not the case with the court litigation.

Also in ADR system privacy is preserved thus cited as an important advantage on

ADR sessions as they are not open to the public. Thus ADR offers confidentiality,
which is general not available in court proceedings and that confidentiality, also helps
in preserving positive relationships.

ADR is more economical than litigation, in negotiation and mediation is least

expensive as costs are usually reduced to both the parties and the court. Hence ADR
proceedings save considerable time and money for instance money spent in pre-trial discovery.

Another importance of ADR is that procedures are informal, simple and flexible.
Proceedings can be conducted in any manner to which the parties agree. It may be a
casual as a discussion around conference table or structured as a private court trial.476
Whereby the parties gets a greater confidence that they have opportunity to present
their whole story on broader ranges than could be possible in court and may be able to
devise solutions that would not be available from court, such as exchanging apologies,
thereby getting better and satisfying resolutions.477

As ADR focuses on interest and encourage creative solutions, the techniques and
processes involved in ADR attempt in varying degree to emphasize interest more than
the parties’ relative rights and relative power. 478 ADR seeks to maximize win a little
lose a little situation for the parties because the solution to the dispute emerges with
the consent of the two parties.479

ADR has distinct advantages because it involves increased respect and trust between
the parties, more creative and satisfying solutions, greater compliance with settlement,

474
“ Mediation” in ADR Method of Choice”, in Dispute Resolution Journal, V. 52 (1997) P.6
475
G. S.Berman, “Facilitated Negotiation: An Effective ADR Techniques” in Dispute Resolution
Journal, V.30 [AP. 1995] PP 18-22
476
Bansal op cit p.18
477
Mapigano op cit p. 4
478
Source: www.batnet.com/vikoumere/arbover.html
479
Bansal op cit. p. 18

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reduced cost and emotional energy and faster resolution of dispute. It improves
communication and relationships between the parties.480 This gives the system
hegemony over the court litigation system thus in the position to supersede it.

The above reasons make ADR to be taken as the alternative to the court system.
However, as observed from discussion that ADR does not intend to supersede the
traditional means of resolving disputes, that is the adversarial system but rather ADR
is alternative to court litigation. Although it is alternative to court system, it has some
drawbacks or weakness as follows;

ADR is criticised, as a means of opening to floodgates of claims that might have not
otherwise be brought.481 In this point due to the introduction of the ADR mechanism
some people have the tendency of taking some complaints which do not amount to a
case to be solved by established machinery under the ADR.

Moreover ADR may reduce the Generosity and effectiveness of the remedy for cases
in which there has been a wrong, and no deterrent effect occur, when the proceeding
is confidential.482 These are just some of the weaknesses, other weakness will be
observed in the second issue whereby it discusses on limitation of ADR to court
litigation, and hence through these limitations it makes ADR unsuitable to every
dispute.

2.3 Whether ADR offers only limited alternative options to court

litigation.

Having seen that ADR was introduced in Tanzania to do away with problem of delay
of cases in courts.483 It can be said that the system was introduced in Tanzania as
alternative to the court system or to complement Adversarial system.

In regard to the second issue as to whether ADR offers only limited options to the
court litigation, we do agree, due to the fact that ADR is complement to the court
litigation as it offers limited alternative, means there are cases which on their face
cannot be dealt with ADR system as ADR is not a ‘Muarubaini’ 484 meaning that ADR
cannot cure every disease [legal dispute], it is wrong idea to think that ADR process is
suitable for every dispute. There are certain categories in which ADR is limited such
as:-

Where a case involves constitutional relief and interpretation are sought, 485or instance
in the case of MTIKILA V. A.G486 issue arise was whether the Constitution of The
United Republic of Tanzania 1977 provides for a right of Tanzanian citizen to contest
for presidential post as a private candidate. This case involves constitutional
interpretation hence it cannot be tabled on ADR. For the cases involving

480
Ibid
481
Bedman “From Litigation to ADR: Brown & Root’s Experience” in Dispute Resolution Journal,
V.50 ( Oct. Dec. 1995) pp 8-14
482
Gaudron Shari “blow the Whistle on employment Dispute, workforce.V.76, PP 50-52, USA
483
See: Mapigano op cit p. 1-5
484
Ibid p. 5
485
Ibid
486
[1995] TLR 31

199
interpretation of the law they are reserved to the High court of Tanzania. Section 4 of
the Basic Rights and Duties Enforcement Act 487 provides that if a person alleges that
the constitutional rights provided by the Bill of Rights in the Constitution are
infringed he has the right to apply to the High Court for Redress.
.
Also where a dispute involves a definite interpretation of law, and interpretation of
law is required, that case cannot be resolved by ADR system as the case will be
dealing with the standard of law. Cases in which injunctive reliefs are sought,488
where a person seeks remedies like injunction order, the said matter cannot be taken
into ADR because such orders are enforceable only through judicial process..

Also ADR do not apply in the cases where declaratory judgments are sought; and
applications for prerogative remedies.489 However minority of these cases are
instituted in our courts. The same stand has been reiterated in the case of SANAI
MURUMBE V MUHERE CHACHA490 where the High Court held that the remedy
of certiorari is the remedy which is given by the High Court exclusively where the
rights of the person have been infringed by the public authority the tribunal exercising
judicial or administrative powers.

In case of arbitration, the law provides that matters referred to arbitration are both
civil and criminal matter, for instance in civil cases matters like, personal injury,
claim for damages, breach of contracts, purchase of movable and immovable
properties etc. can be brought before arbitration. On the other side there are criminal
cases which cannot be brought before arbitration such as theft, murder, attempt to
murder and others, but exceptions are in cases of abusive language, assault, modest of
women, infancy cases etc these can be referred for arbitration. However, the laws
allow courts to hear and determine matters whether civil or criminal only depending
on the jurisdiction of the court.

From this it can be argued that, it is true that; ADR offers only limited alternative
options to court litigation due to the fact that there are circumstances in which the
disputes cannot be referred to ADR system, hence it is not suitable to refer every suit
before the court litigation.

Having seen the discussion on the two issues, let us look at the other side on what will
be the effect if ADR is taken to be a substitution of adversarial system in court
litigation, the question is, and will it be able to over-come the problem of delay of
cases in court litigation?

Form observation if ADR will be let to substitute court litigation, it will lead to delay
of cases unless large number of people who are going to be mediators and arbitrators
are trained, this is unrealistic due to problem of fund to train them.

487
Act No 33 of 1994
488
Ibid
489
Ibid
490
[1990] TLR 54

200
3.0 CONCLUSION

Court litigation system is the appropriate mechanism for the settlement of disputes.
However due to the increase of disputes in the society as a result of development the
court system is overburdened and thus it does not run efficiently as it is intended. To
solve the problem it was seen that an alternative means of resolving dispute should be
adopted. This resulted in the establishment of the ADR. Through this mechanism the
public policy that the disputes must come to a speedy end has to a certain extent been
maintained.

However it should be borne in mind that the ADR is not at all intending to supersede
the traditional court system of dispute settlement. The two systems of dispute
resolution co-exist. The ADR is seen as an offspring of the traditional court system. It
should further be known that the fact that the ADR system deals with few types of
cases cements a view that the system is not intended to supersede the court system.

The ADR system as it was intended to facilitate the legal system in ensuring that
justice is attained within a short time possible, also the fact that the ADR in most
cases is constituted with persons who are not experts in law. Then the state was given
only few disputes are referred to the ADR established mechanisms. Otherwise had the
laws given the ADR system the ability to deal with all cases then the same problem
which was previously experienced in the past. Though as the two systems do co-exist
it follows as the day follows night that the ADR system applies to certain cases only.
Therefore it takes us back to square one that court litigation is the leading system
which is used for the resolution of disputes in Tanzania and due to the burdens
towards the system there was the introduction of the of ADR.

QUESTION: “In mediation proceeding, a mediator plays various

roles/duties.”
(a) Critically discuss how a mediator can successfully discharge his roles/duties.
(b) Are there any restrictions imposed on the mediator while discharging his
roles/duties.
Outline

1.0 Introduction

2.0 The Concept of Mediation

3.0 The Roles/Duties of a Mediator

4.0 How is the Mediator going to discharge his Roles/Duties.

5.0 Restrictions imposed on the Mediator while discharging his Roles/Duties.

6.0 Conclusion

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7.0 References

1.0 Introduction.
Alternative dispute resolution is a modern scheme of procedure for settlement of
dispute, which has been introduced and implemented at the middle level of the court
system in Tanzania in response to a pandemic problem facing the administration of
justice in the country. It is an alternative or the supplement to other ways of dispute
solving outside the court. It involves various processes namely, negotiation, neutral
case evaluation, reconciliation, mediation and arbitration. For the sake of our
discussion we are going to deal with mediation process on the aspect of roles or duties
of a mediator, how is going to discharge his duties and restrictions imposed on the
mediator while discharging his duties/roles.

2.0 The Concept of mediation.

Mediation is the process of resolving dispute with the aid of an independent third
person that assists the parties in dispute to reach a negotiated resolution. It is an
acceptable intervention to a dispute of a third party who has no authority to make a
decision. This process is voluntary and it does not bar a person to opt the other
dispute resolution491.

Also, Mediation, can be defined as a process or procedure for resolving existing

disputes between the parties who have all along been arguing with each other as to the
liability or otherwise of one or any of them in a given case. Apart from helping to
resolve existing disputes, mediation is also used to help prevent possible future
disputes, and mitigate or minimize negative effects of the existing disputes.

This civil process has been adopted in Tanzania mainland, and is regulated by
statutory law and administrative procedures. As a matter of expediency, the task of
mediating is apparently assigned to judges and magistrates for the time being.

The mediation process may involve two circumstances: on one account, the parties in
dispute may have negotiated among themselves before they come to the mediator but
have failed to resolve their disputes, of which the mediator will assist them in their
negotiation. On the other account, the parties may have given up on negotiation and
are angry at each other, in which case the mediator will assist the parties to go back to
the negotiation process.
Thus a mediator can be said to be a neutral third party who assists the parties and their
advocates to explore and find a resolution to their dispute. He does not decide the
dispute, as an arbitrator or a court does, though in appropriate cases he may offer
suggestions for settlement. The mediator works towards a mutually acceptable
agreement. In other words, while the mediator control the process, the parties control
the outcome. Moreover the mediator organizes the proceedings and keeps it moving
by trying hard to cause the parties to participate fully and sincerely in the discussion
and to speak directly and courteously with one another. He gives each party sufficient
opportunity to express his views about the matter in dispute, and the proceeding will

491
Ashwinie, K.B, (2005), Arbitration and ADR, P.19.

202
be conducted in ordinary language that the parties can understand. All these activities
are performed in privacy.

Broadly speaking, mediators may be classified into two types, namely, facilitative
mediators and evaluative mediators. A facilitative mediator is the one who assumes
that the parties are intelligent, able to work with their counterparts and clearly
understand their situations better than the mediator. So such a mediator thinks that the
parties may develop better solutions than any that he, as a mediator, might create.
While an evaluative mediator assumes that the parties or participants in the mediation
want and need the mediator to provide some direction as to the appropriate grounds
for settlement based on law, trade or technology practice. Such a mediator also
assumes that he is qualified to give direction by virtue of his experience, training and
objectivity.

The process of mediation is not suitable for very dispute, for there are certain
categories of cases of which by their own very nature are obviously inappropriate for
mediation. The few are, cases in which constitutional reliefs and interpretation are
sought; cases in which a definite interpretation of the law is required; cases in which
injunctive reliefs are sought; cases in which declaratory judgements are sought; and
applications for prerogative remedies.

3.0 The Roles/Duties of a Mediator.

The major role of a mediator in this mediation process is to help the disputants to
communicate their positions on the issues, to explore and understand the interests
behind their bargaining positions, to help them realize that a given set of interests can
be satisfied in more than one way, and help them decide upon a settlement that gives
both sides as much as possible of what they need. The mediator should not give an
opinion on the matter in dispute, which is before him, rather he should tactfully lead
the parties to assess their relative interests and positions and evaluate their own cases
by an earnest exchange of information, ideas and alternative solutions. Hence, in fully
executing this major role, the mediator has other roles to perform while mediating.

A mediator is a facilitator in the proceedings. A mediator keeps the process of

mediation moving in many different ways. He is neither a judge nor is he a
magistrate. That a judge-mediator and the magistrate-mediator have to distinguish
their judicial role from that of mediator. The mediator must be informal, forthcoming
and wholly disinterested in the proceedings he chairs. Also a mediator, in the case
before him, so as to energize and create movement or progress; he refocuses attention
on areas of possible agreement; and models and encourages use of active listening
skills. Though the mediator has to use these different ways to see that he facilitates the
parties to settle their dispute, he has to control the process. That the mediator must
maintain a dignified posture that will engender respect and confidence from the
parties he is assisting in the determination of their dispute.

A mediator is a “team-builder” in the sense that the “team”, that is, the parties, has
broken down and the best chance of reaching a settlement requires getting the parties
to co-operate and collaborate again. So the mediator’s duty is to subtly convince the
parties that they should see the problem as their shared problem and not just as the
other party’s problem.

203
A mediator as an opener of channels of communication. There are certain
circumstances where the parties may be so angry at each other that they are not on
talking terms. So the mediator’s duty in such a situation is to intervene and re-
establish communication. The mere presence of a mediator often has a meaningful
effect because a party may be much more ready to talk to a mediator than the other
party. Gradually, the mediator may try to shift the parties to speaking more directly
with each other.

A mediator as a modulator of emotions. Parties sometimes are very emotionally

charged, believing that the other party is destroying their fortunes. Unless a mediator
can manage to control such emotions, such emotions can be destructive or repetitive.
It is therefore, his role to squelch such emotions.

A mediator as a translator and transmitter of information. Sometimes parties may be

talking but not “hearing” or understanding each other. The role of a mediator in such a
situation is to coach them on the importance of showing or demonstrating to the other
party that they understand what was said. In other cases, parties might be unaware of
certain facts, or they might have different perceptions of the meaning of those facts.
The mediator’s role in such a case is to transmit new information or translate the
meaning of information into new terms that the parties will understand.

A mediator as a distinguisher of wants from needs. Usually parties cannot settle a

dispute without modifying the content of their original demands. A mediator should
help them distinguish their true underlying needs, i.e. those things which must take
place for the dispute to settle, from their original desires which may be mere wants.

A mediator as a generator of options. Although it is not strictly or necessarily the

mediator’s task to create solutions, a mediator should be prepared to help parties
generate and articulate as many realistic options for settlement as possible. If this is
done skilfully, the mediator will not be seen to be responsible for generating options.
The parties will believe that they “own” their settlement and will believe that all
possible solutions to the dispute were explored. This is where evaluative mediation
skills come in.

A mediator as an agent of reality. Sometimes parties’ bargaining positions are based

on unrealistic ideas about practical matters, external forces, or the role of the other
important players. Faced with such parties, the mediator should carefully provide
information, which can alter the direction, or change the tone of negotiation.
Occasionally, it becomes necessary for the mediator to assist the parties to consider
what could if they choose not to resolve their dispute in mediation. When this is
carefully and impartially emphasized, it often enables the parties to see and consider
the issues more realistically-especially if the more adamant party is the apparently
weaker side.

4.0 How is the mediator going to discharge his roles/duties.

The mediator in discharging all the above roles/duties as he goes along with his
mediation process, certain skills must be applied antecedent to the roles he has. A
mediator’s core skill is assisting negotiations where, as a result of discouragement,
distrust or anger between the parties, negotiations have stalled or stopped between
them. In certain cases parties’ wants are far part from their needs, therefore, the

204
mediator helps them to explore their needs and help them to reach a settlement that
takes care of their needs.

So as to practice his duties smoothly, the mediator must improve communication

between the disputants. Parties in dispute may be of different caliber or status, some
are literate while others are not and of different emotional feelings. Therefore, there
may exist several barriers to communication, which may include, anger, poor
language skills, cultural and educational differences, pre-existing biases, ignorance,
fear, anxiety, and exhaustion. Giving regard to this, the mediator must be very clear in
his expressions so the parties in quarrel could understand him and must constantly
demonstrate listening skills. Subsequently, must be of the capacity to quickly drawing
out feelings and opinions of the parties, in that way the parties’ is won.

The mediator must further create options for settlement. The mediator’s success only
lies in his ability to assist the parties expand options available for settling their
disputes. Generally, parties before the mediator have interest, which may be in
conflict, but the mediator is always given room for creativity and compromise with
interests. The rationale of the mediator going further into exploring the interests, is
only to help the parties to look at the dispute more objectively rather than
subjectively.

As a general rule, all mediators worldwide have the same objective and that is, to see
a settlement between the parties if possible. Hence, in doing this, all the mediators
must bear in mind, that parties often have specific goals in mind. In regard to this, the
mediators unfortunately, sometimes adopt bargaining strategies, like competitive
bargaining and accommodative bargaining, which will never get them what they
want. The mediator then must convince each party that he has that party’s best
interests in mind, and not their positions. This will lead to winning their confidence.

The above circumstances are seen and experienced by every mediator though in
varying degrees. Therefore, in order to play his role effectively, the mediator should
promote positive negotiating strategies. Working separately with a party usually helps
a mediator to understand the motivation for a particular negotiating strategy of a
party. Having understood the motives of a party, he can help the party to alter
negotiating stance that is more likely to produce an agreement. Besides a party may
be unwilling to make a final decision to accept the agreement, may be because of the
uncertainties of the future, or of the negative aspects of the proposed agreement, or he
may unrealistically be hoping that circumstances will change. It is the mediator’s duty
in such cases to inform, reassure, and guide such parties.

Also the idea of holding separate sessions is very useful than joint sessions. Its
usefulness comes in respect of the impasses that very often the mediator faces over
specific issues. Usually, private discussions increase the likelihood of parties
considering proposals on merits.

The mediator should try to somehow pace up the mediation. In doing this, he should
take charge of the process by being constantly one step ahead of the parties, but it
should appear as if the parties are doing all the work. The aim of the mediator is to
“make things happen” and get results quickly.

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Despite the mediator’s desire to see quick results, he must be patient-infinitely patient.
In other words, the mediator should try as far as possible not to rush the process
haphazardly. It should in his mind that, building or re-building some level of trust and
a spirit of collaboration takes time. It is not a thing that can be created within seconds.
Therefore, the mediator must gather sufficient information so as to identify the issues
underlying the dispute and bring each party’s ultimate interests to light. If it happens
that this is not done, it will be impossible to generate solutions because all do not
understand the problems.

Furthermore, as the mediator paces up the mediation process, he should juggle the
issues. When new issues crop up in the course of mediation, the better practise is for
the mediator to set aside the new problem for the moment and remain focused on the
issue at hand. A mediator must prepare the parties for transition between stages by
summarizing the basic agreements reached up to that point and asking the parties if
they are ready to move on to another problem or issue. A mediator should ensure that
areas of agreement, no matter how small, are reinformed throughout at each stage of
the mediation.

5.0 Restrictions imposed on the mediator while discharging his roles/duties

One of the restrictions is that the mediator must observe impartiality and fairness in
the due process of mediating the disputants. As a general rule a mediator should
conduct the mediation in an impartial and fair manner. The concept of mediator’s
impartiality is central to the mediation process. He shall mediate only those matters in
which she/he can remain impartial and even-handed. If it occurs that at anytime the
mediator is unable to conduct the process in an impartial manner, he is obliged to
withdraw. A mediator should guard against prejudice based on the parties’ personal
character, background or performance at the mediation.

Another restriction lies on the aspect of conflict of interest, in the sense that a
mediator is obliged to disclose all actual and potential conflicts of interest reasonably
known to him. After the disclosure, the mediator shall decline to mediate unless all
parties choose to retain him. If the conflict of interest is serious enough, he should
excuse himself from mediation or disqualify himself. The Code of Conduct prescribes
this for Judicial Officers. A conflict of interest is a dealing or relationship that might
create an impression of possible bias. It is the responsibility of the mediator to
disclose all actual and potential conflicts that are reasonably known to him and could
reasonably be seen as raising a question about impartiality. If all parties agree to be
mediated after being informed of the conflict, then, the mediator may proceed with
the mediation. A point to note is that, the mediator’s commitment must be to the
parties and the process. Pressures from outside the mediation process should never
influence the mediator to coerce the parties to settle.

A mediator must respect confidentiality as mediation takes effect. He should maintain

the reasonable expectations of the parties with regard to confidentiality. The parties’
expectations of confidentiality depend on the circumstances of the mediation and any
agreements they make. The mediator is not supposed to disclose any matter that a
party expects to be confidential unless given permission by all parties. In order to
protect the integrity of the mediation, a mediator should avoid communicating
information about the merits of the case, or settlement offers, or how the parties
performed at the mediation sessions. Confidentiality should not be construed to limit

206
or prohibit the effective monitoring research, or evaluation of mediation programmes
by responsible persons. Under appropriate circumstances, researchers may be
permitted to have access to statistical data and, with the permission of the parties, to
peruse individual case files, observe live mediations, and have interviews with
participants.

A mediator must conduct the mediation diligently. He should not permit his behaviour
in the mediation process to be guided by a desire for a high settlement rate. Nor
should he allow a mediation to be unduly delayed by the parties or their
representatives.

Furthermore, a mediator in the discharge of his duties must not collude with any of
the party to lie or mislead the other party. He should avoid taking sides between the
disputants. He should be neutral at all costs and always fair. If he happens to be
unfair, and discovered, he will lose trust from the disputants and thus he will be
unable to harmonize the situation before him.

Subsequently, in the mediation process the mediator is not only prevented from taking
sides on the disputants but he must also not lie or mislead all the disputants. When
parties bring their case to the mediator, they regard him as knowledgeable in the
process of mediation. Hence, the disputants will fully respect and take to be true
anything the mediator will inform them. Therefore, it is wholly upon the mediator to
sieve and weigh whatever options he is going to generate on the parties that they are
true to the best of his own knowledge.

6.0 Conclusion
Above, we have pointed the roles or duties of a mediator and the restrictions that are
imposed on him. In regard to this, we are of the conclusion that the mediator in fully
discharging his roles/duties must take into consideration the general standards for the
practice of mediation functions. These general standards will serve as a guide for his
own conduct as a mediator and in this respect; the general standards will act as
restrictions on him. These are impartiality and fairness, conflict of interest,
confidentiality and diligence.

Qn: “In an arbitration proceeding, parties’ autonomy is of fundamental

significance”. Do the methods of appointing arbitrators in Tanzania and the
grounds upon which an award may be challenged strike a proper balance
between preserving the said autonomy and ensuring that justice is done?

1.0 INTRODUCTION.

Arbitration is one of the oldest methods for the resolution of disputes between the
parties. It has existed, in one form or the other, in every country at all times492.

The term Arbitration can be defined as a dispute settlement process which involves an
impartial third party, preferably a lawyer who meets with the disputants, listens to

492
UNITAR,(2001), Alternative Dispute Resolution Methods, P.7

207
presentations of both facts and law and renders an award 493.Arbitration can also be
defined as a process where by a neutral third party called an arbitrator is selected by
the parties to hear and resolve their dispute494.

Therefore, Arbitration is a mode of dispute resolution in which the parties to a

dispute, having earlier agreed, in an arbitration clause, to refer any future dispute to
arbitration in which an independent third party or parties usually chosen by the parties
themselves hears both sides of the dispute and makes a decision which is binding on
the parties.

The foundation of arbitration clause is that it must be in writing. And the parties
thereto must have a meeting of mind. This was discussed in the case of BEATTIE V.
BEATTIE495; therefore there can be no arbitration if the parties have not agreed to
refer their matter to arbitration.

Not all matters that can be referred to arbitration, but certain matters only, namely;
matters affecting parties which constitute civil disputes and some of the criminal
matters which do not attract capital punishment.

In Tanzania arbitration has been given a limited application by law. It is governed by

the Arbitration Ordinance, Cap 15 of the Revised Laws and the Second Schedule to
the Civil Procedure Code, 1966.

Since reference to arbitration is subject to mutual agreement of parties themselves, the

assertion that, parties autonomy is of fundamental significance in arbitration
proceedings, is true because arbitration may only come into existence if the parties
want it to, and it is the parties who chose the arbitrators and decide on the procedure
to be followed.

2.0 Methods of appointing arbitrators.

There are various methods of appointing arbitrators, and in all those methods the
parties themselves play a greater role. Usually the parties place a clause in an
arbitration Agreement which states the mode under which an arbitrator or arbitrators
are going to be appointed in case a dispute arises. The appointment of arbitrators may
take one or more of the following ways;

The first mode is that the parties may decide to choose one arbitrator (sole arbitrator)
in case a dispute arises. The appointment of this arbitrator may be contained in
arbitration clause which will specifically state that in case a dispute arises the matter
shall be referred to a particular appointed arbitrator; conversely the parties may just
state that in case a dispute arises they shall refer their matter to a sole arbitrator who
shall be appointed by them or by some one else who shall appoint him or her for
them. In case the parties disagree on who shall be appointed as an arbitrator they must
apply to the court which will in turn appoint one for them.

493
Dissertation of Walter Chipeta and Kitana R.
494
Manual for Mediation training in Tanzania P. 2
495
(1938) Ch 708

208
Sometimes the parties may decide that in case a dispute arises they shall refer it to
three arbitrators. The mode of appointing these arbitrators is that, each of the parties
will appoint his arbitrator, and then the two arbitrators will appoint a single arbitrator
who will be an umpire. Suppose the umpire fails to act, the arbitrators who appointed
him have a duty to replace him. In case one of the parties fails to appoint his arbitrator
for one reason or the other, then he or the other party may apply to the court so that
the court may appoint the arbitrator.

If the chosen arbitrator disagree to the appointment, or an event happens which makes
it impossible for him to act as an arbitrator, and parties do not agree to the
replacement, any of the parties may apply to the High court for appointment of
another arbitrator.

When there are two arbitrators and one of them cannot act as arbitrator by reason of
incapacitation, death or removal, the party who appointed him has a right to replace
him. If he fails the other party may apply to the High Court that the arbitrator chosen
by him to be a sole arbitrator.

2.1 Challenging Arbitration Award.

Under Tanzania law no appeals lies against an arbitral award, however the law allows
the losing party to challenge it in some circumstances. This may be done in the
following situations through an application made to court to request it to order that the
award is not enforceable.

Impropriety and misconduct are among the grounds of challenging an award. These
grounds are not defined in the Arbitration Act but misconduct must be taken in its
widest possible sense as well as impropriety. Therefore, the court will exercise that
power very cautiously and sparingly in the following circumstances;
 Where the arbitrator exceeds his or her jurisdiction or refuses to accept that
jurisdiction.
 Where the arbitrator is guilty of misconduct.
 Where in any case the arbitrator is disqualified, such as where he does not
have the qualifications to enter the proceedings. For example if it is required
that the arbitrator should be a lawyer then failure of such qualification will
disqualify him.
 Where injustice is being done by the arbitrator and there is no any other way
of remedy to remove him.
 Where the arbitrator is corrupt.
 Where the arbitrator shows biasness.
 Where it is shown that one of the parties did not have capacity to enter into
the agreement.
 Where the arbitrator overcharges the parties.
 Where the arbitrator refuses to state a case.
 Where an award has been made but there has been a discovery of new and
important facts or evidence.
 Where the assessment of damages was excessive.

209
3.0 Balance between Parties’ Autonomy and Justice in relation to appointment
of Arbitrators and challenging an award of the tribunal.

Parties’ Autonomy

The methods of appointing arbitrators are aimed at striking a balance between parties’
autonomy and justice. This can be seen when considering various methods of
appointing arbitrators.

For instance when parties have agreed in an arbitration clause that in case a dispute
arises they will appoint a sole arbitrator. In case a dispute arises and the parties
disagree on appointment of such an arbitrator one of the parties may apply to the court
so that the court may appoint an arbitrator to deal with their dispute. In this way
justice will be ensured to both parties to the dispute, due to the fact that the appointed
arbitrator will be impartial because he has no connection with any of the parties.

A balance between parties’ autonomy and justice in relation to appointment of

arbitrators can also be seen where parties have agreed in an arbitration clause that
when a dispute arises they shall appoint two arbitrators each appointed by one party
who will in turn appoint an umpire. An umpire is appointed by the arbitrators who
have been appointed by the parties in that way it is the parties themselves who have
indirectly appointed an umpire and in that way justice can be ensured while
maintaining parties’ autonomy.

Moreover when parties are required by arbitration clause to appoint two arbitrators,
and for one reason or the other one party fails to do so, the other party may apply to
the court so that the court may either appoint an arbitrator or may hold that his
arbitrator be a sole arbitrator. In that way parties’ autonomy will still be maintained
while ensuring justice. Because by failing to appoint an arbitrator the defaulting party
can be said to have waived his right to appoint an arbitrator of his choice and that he
will have confidence to any arbitrator chosen by the court or the other party.

Further more, the method of replacement or substitution of arbitrators can also be said
to strike a balance between parties’ autonomy and justice. If the chosen arbitrator
need to be replaced because he disagrees to the appointment or an event happens
which makes it impossible for him to act as arbitrator, the parties may appoint another
or other arbitrators to replace him, and in case parties do not agree to the replacement,
any of the parties may apply to the High court for appointment of another arbitrator or
other arbitrators. In this way the parties’ autonomy will be maintained while at the
same time justice is ensured.

Challenging an award of the tribunal.

It is obvious that the grounds upon which an arbitral award may be challenged strike a
balance between parties’ autonomy and justice. This is because the parties are the
ones who control the procedures to be adopted during arbitration; if they are not
satisfied with an award resulting from the conduct of the arbitration they can
challenge it.

210
An arbitration award is supposed to ensure that the matter is disposed off between the
parties without prejudicing the rights of any of the parties and in this way justice will
be ensured to both the parties. For instance, parties might have set a limit on what
procedures should be followed by the arbitrator in discharging his duty, and in case he
acts beyond the limits, one of the parties may make an application to the court to
challenge an award. This strike a balance because parties should chose a procedure
and limit the powers of the arbitrator and in case he went contrary to the procedure or
beyond the powers then the parties may challenge the decision given in that basis.

In case parties, in their arbitration clause, agreed that they will choose three
arbitrators, one of the parties may challenge an award if he was not given proper
notice for him to appoint an arbitrator. This ground of challenging an award tries to
preserve the party’s autonomy because the party was denied of his right to choose an
arbitrator of his choice, in whom he has confidence. By allowing an award to stand, it
will be doing injustice to the party since he was not given chance of appointing an
arbitrator as per their prior agreement.

In the arbitration clause the parties may set a list of disputes between them which can
be a subject matter of arbitration. Then, if an arbitrator entertains a dispute which is
not covered in the clause, he will be acting contrary the parties’ intention and this may
result into injustice because parties may spend most of their time by being subjected
to trials which they ought not to have been subjected. Therefore, by challenging an
award founded under these circumstance amounts to preserve the parties’ autonomy
and upholding justice.

Where in any case the arbitrator is disqualified, such as where he does not have the
qualifications to enter the proceedings. For example if it is required that the arbitrator
should be a lawyer then failure of such qualification will disqualify him. The
challenge of award under this ground will help in preserving parties’ autonomy and
upholding justice. It preserve the said autonomy because it is aimed at upholding the
wishes of the parties on who should be a proper arbitrator to determine their dispute
basing on the standards the parties themselves set. This will also ensure that justice is
done, because there could be injustice if parties do not have confidence on the
presiding arbitrator. This emanates from the principle that ‘justice should not only be
done but manifestly seen to be done.’

Further more, if any of the parties is denied of his right to call witnesses by an
arbitrator and the arbitrator makes an award regardless of this fact, he will be acting
against the principles of parties’ autonomy known to arbitration. To maintain the
parties’ autonomy, the award resulting from such a failure by an arbitrator may be
challenged. By maintaining parties autonomy justice will also be done because it is a
principle of natural justice that no one should be condemned unheard, thus denying a
party’s right to call witnesses is the same as denying him a chance to state his case.

4.0 Conclusion.

The parties to arbitration are the masters of the whole arbitration process, starting
from appointing arbitrators; choice of procedure; place of arbitration; time in which
arbitral proceedings may commence; to the language of arbitration. This is otherwise

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known as parties’ autonomy. The study that we have conducted reveals that among
other things, the way of appointing arbitrators and the grounds of challenging an
arbitral award, to a large extent strike a balance between the said parties’ autonomy
and justice. Thus, in Tanzania, arbitration is among the modes of resolving disputes
which to a large extent ensure that expectations of the parties are met and justice is
done.

QUESTION:
Tam and Chung entered into a sale agreement. The agreement contained an
arbitration clause providing for arbitration in Dar es Salaam for dispute arising
out of or relating to the sale agreement. The parties entered into another
agreement incidental with the sale. The documents to these other transactions
did not provide arbitration clause. In the course of execution of the sale of the
sale agreement and other transactions, a number of disputes arose between the
two from the various transactions and the parties filed actions against each
other, however, the parties are of different views. Chung wants the dispute to be
referred to arbitration, as a condition precedent to right of action. Tam
maintains that the dispute be litigated.

By applying your knowledge in Arbitration, advise the parties.

OUTLINE:

1.0 INTRODUCTION

2.0 THE CONCEPT OF ARBITRATION CLAUSE

3.0 POSSIBLE ISSUES;

Whether the same clause can be relied on incidental agreement to the sale
agreement

Whether the arbitration clause contained in the agreement was valid

What is the effect of arbitration clause and its binding nature

4.0 ADVICE TO THE PARTIES.

5.0 CONCLUSION.

6.0 BIBLIOGRAPHY.

1.0 INTRODUCTION.

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Arbitration is an alternative way to resolve dispute through court litigation.
Arbitration is a recognized private legal procedure used to resolve disputes between
two or more parties. Where two or more person agree that a dispute or potential
dispute between them shall be decided in a legally binding way by one or more
impartial person in a judicial manner, that is upon evidence put before him/them, the
agreement is called a arbitration agreement or a submission to arbitration.
When, after a dispute has arisen, it is put before such person(s) for decision, the
procedure is called as arbitration and the decision when made is called award.

1.0 THE CONCEPT OF ARBITRATION CLAUSE.

An arbitration agreement may be in the form of an arbitration clause in the form of a

separate agreement. An arbitration agreement should be in writing. The reference in a
contract to a document containing an arbitration clause constitutes an arbitration
agreement if the contract is in writing and the reference is such as to make that
arbitration clause part of the contract.

The basis for proceeding to arbitration is the arbitration agreement or the arbitration
clause, which has been voluntarily executed by the parties.
This is a clause in the agreement where by parties stipulate in the agreement that in
case of dispute, they will go to arbitration. This is what termed as submission in the
arbitration act496. This clause authorizes parties to submit a dispute to arbitration.

An arbitration agreement may be in the form of an arbitration clause in an agreement

or in the form of a separate agreement.
Arbitration clause under the law is tied to the mother contract. If the mother contract
is void, the arbitration clause is also void. The arbitration clause must not be in the
same agreement document.
This clause is binding on the parties and therefore irrevocable. It may be revoked by
the court of law, and in this case, the High Court.

Possible Issues

Whether the same clause can be relied on incidental agreement to the sale
agreement.

In the contract, it is stipulation by the parties that the arbitration clause in the
agreement will be for arbitration for disputes arising out of or relating to the sale
agreement. When a matter arise out of or relate to the main contract, it is regarded
in law as part of the main contract. For example, if the seller agreed to deliver 10
kgs of beans to the buyer, and later the buyer, before execution of the contract, ask
for the seller to add 5 kgs of beans for it to be 15 kgs, then the two are regarded as
the same, and any matter arise there from is regarded as part of the mother
contract, for it is incidental to the agreement if the parties agree to be bound on
matters relating or arising out of the sale agreement.

496
Section 2 of The Arbitration Act; this however is criticized since submissions comes after the
agreement and the breach of the agreement is occasioned (dispute arise).

213
 In Heyman v. Darwins Ltd497, as quoted in the case of Construction Engineers and
Builders Ltd v. Sugar Development Corporation,498 an arbitration clause in a
contract provided that:

‘If any dispute shall arise between the parties hereto in respect of this
agreement of any of the provisions here in contained or anything arising
here out, the same shall be referred for arbitration in accordance with the
provisions of Arbitration Act.’

It is thus arguable that an arbitration clause in the contract, which is to be applied

to the disputes arising out of or relating to the sale agreement, will be relied on in
the agreement incidental to the sale agreement.

Whether the arbitration clause contained in the agreement was valid.

To be valid, arbitration clause needs to meet some ingredients of a valid

arbitration clause. First, the clause need be in writing499 and there must be a
meeting of minds between the parties500. Both parties must also sign the clause
and it must not be drawn in such a way to ouster the jurisdiction of the court.
Arbitration clause must be in precise terms and must not be illegal. Moreover, the
clause must be made by parties with capacity to enter into an enforceable contract,
that is, persons of majority age, of sound mind and who have not been declared
bankrupt. The scenario was not clear as to the very nature and validity of the
clause, however, meeting of mind as to the establishment of the clause was there,
thus the clause is regarded as valid.

What is the effect of arbitration clause and its binding nature?

One of the essential requirements for resolution of a dispute through arbitration is the
existence of an arbitration agreement between the parties. Arbitration clause stands as
an estopel. On agreeing to the arbitration clause, parties cannot later refuse to go for
arbitration.
This clause is binding on the parties and therefore irrevocable. It may be revoked by
the court of law, and in this case, the High Court.501
Section 18 of the civil procedure code provides for the parties to the agreement or any
of them may apply to the court to stay proceedings if a party did not observe
arbitration clause.
Where there is an arbitration clause and a dispute has arisen and one of the parties
files a case on court, the defendant may apply to the court for stay of the court
proceedings pending reference to arbitration502. The high court will grant the prayer.
497
(1942) AC 356.
498
(1983) TLR 13.
499
. Section 17(2) of The civil Procedure Code, Cap. 33 R.E 2002 (Second Schedule)
500
Beatie V. Beatie (1938) Ch. 708
501
Section 4 of The Arbitration Act.
502
Section 6, ibid.

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However, the court will do away with the application if there are reasons not to do
arbitration.
A party can request the court before which an action is brought in a matter, which is
the subject of an arbitration agreement, by making an application to stay legal
proceedings and referring the parties to arbitration. But a party should file such
applications not later than when submitting his first statement on the substance of the
dispute. The original arbitration agreement or duly certified copies thereof should
accompany the application for stay of legal proceeding.503

The court will stay proceedings if it is satisfied:

 That there is an arbitration clause

 That there are no reasons why the matter should not be referred to
arbitration, as in arbitration clause.
 That the defendant has always willing to submit the dispute to the arbitration.

4.0. ADVICE TO THE PARTIES.

According to our scenario Tam and Chung entered to the sale agreement where by
their agreement contained an arbitration clause providing to arbitration in Dar es
Salaam for dispute arising out of or relating to the sale agreement. Later on, the
parties entered into another agreement incidental with the sale, but the document to
these other transactions did not provide arbitration clause. In the course of executing
that sale agreement and other transactions a number of disputes arose between the
two.

Since the arbitration clause was made for any dispute arising out of or relating to the
sale agreement. We are advising the parties to solve their dispute through arbitration
as per arbitration clause in their sale agreement. The term in arbitration clause
“arising out of or relating to the sale agreement” means that for those dispute which
arise in that original contract of sale and any other incidental with the sale. The same
clause can be relied on incidental agreement to the sale agreement.

It is our advice to Chung that he can maintain his argument since they have the clause
provide for arbitration.

This was the position in the case of Construction Engineers and Builders Ltd v. Sugar
Development Corporation. In the case, the employer and the contractor, by the
agreement, which follows closely the standard Royal Institute Of British Architects
form of contract, have chosen to submit their disputes or differences as to the
construction of the contract or as to any matter or anything of whatever nature arising
there under or in connecting there with to arbitration. The court held in the case that,
where it is clear that the parties to the contract have agreed to submit all their disputes
or differences arising under the contract to an arbitrator, the dispute must go to
arbitration unless there is good reason to justify the court to override the agreement of
the parties.

503
A.K Bansal, Arbitration and ARD, pg. 10.

215
To Tam, we have an advice that they have to rely to the clause. An arbitration clause
is irrevocable.

If Tam will proceed to the court, then Chung have an option to make application to
the court for stay of proceedings as per section 6 of arbitration act, 1931 as amended
by 1971.

5.0 CONCLUSION.

In conclusion, Tam and Chung are advised to refer their matter for arbitration as from
the scenario given, it is shown that the sale agreement provides for in the arbitration
clause that matters arising out of or in relating to their sale agreement can be brought
to the arbitration. The same clause can be relied on incidental agreement to the sale
agreement. The court may order against the agreement of the parties if there are
reasons to justify the departure.

QUESTION 8:
“International Commercial Arbitration…will usually involve more than one
system of law”

Redfern & Hunter, Law and Practice of International Commercial Arbitration.

On the basis of the above, discuss the following:

a) The principles to be applied by the international commercial arbitrator in
the determination of the law applicable to merits of the dispute.
b) Determination of the rules of law applicable to the merits of the dispute on
the basis of the intention of the parties.
c) Determination of the rules of law applicable to the merits of the dispute in the
absence of choice by the parties.

TABLE OF CONTENTS

1.0: INTRODUCTION
1.1: The concept and understanding of a dispute

1.2: International system of Arbitration and the law governing the same.

2.0: MAIN BODY.

2.1: International Commercial Arbitration and the system used in it
2.1.1: The choice of Arbitrators
2.1.2: The Jurisdiction of the Arbitral Tribunal

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 2.1.3: The Procedures of the proceedings
2.1.4: Rules applicable to the substance of dispute
2.1.5: Enforcement of its decisions

2.2: Discussion with respect to the center of the question.

2.2.1: Principles applicable in determination of the law applicable to
the merits of the dispute.
2.2.2: Determination on the rules applicable to the merits of the
dispute on the basis of the intention of the parties.
2.2.3: Determination of the rules applicable to the merits of the dispute
in the absence of choice by the parties.

3.0: CONCLUSION.

4.0: REFERENCE:

1.0: INTRODUCTION.

1.1: The concept and understanding of a dispute

There is no society which can exist without any socio-economic or political disputes.
These have formed part of human being’s life. The nature of the disputes differs from
the individual level, family level to the society level. But what has to be said here is
that in all such disputes, human beings have tried to develop some machineries to
settle down such dispute so that they can still live in an amicable manner.

A dispute is, basically a difference or conflict between two or more parties. It is a

disagreement between two people or two groups of people. It is important to mention
here that every conflict or dispute is not enforceable by law. Only legal disputes have
the enforcement of the law. And this legal dispute is the intrusion or attempt to intrude
upon the legal rights of a person or persons by other person or persons. It could even
be a misunderstanding or omission of the rights of a person or persons by another504.

1.2: International system of Arbitration and the law governing the same.
The International system of Arbitration is governed by various instruments which
include the UNCITRAL Model Law, ICC Rules of Arbitration, European Convention
on International Commercial to mention but few.

2.0: MAIN BODY

2.1: International Commercial Arbitration and the system used in it

504
An advocate of the Supreme Court of India, Bansal, A.K(2005) Arbitration and ADR, at p.2 says
that;
“In simple words, a legal dispute is a wrong which is either intended or done otherwise
towards a person by another such that it infringes on his legal rights”

217
2.1.1: The choice of Arbitrators
As we have pointed above, International Commercial Tribunal is governed by the
laws of Conventions and therefore most of the procedures and systems of its
operations are guided by the procedures laid down in such conventions as herein
above stipulated. It follows therefore that the system used in the choice of Arbitrators
in International Commercial Arbitration is governed by the UNCITRAL Model Law
on International Commercial Arbitration505 where by the system provides for the
number, procedures for appointment, challenges against the system of appointment
and how to substitute an arbitrator.

2.1.2: The Jurisdiction of Arbitral Tribunal

The system of determining the Jurisdiction of the International Commercial
Arbitration Tribunal is one of the important aspects which always face the particular
tribunal before going to the root of the dispute in question. This also is provided under
Article 16-17 of the Model Law which provides among other things for the power to
the tribunal to rule on its own jurisdiction. This system has facilitated the smooth
resolutions of some of the issues which may arise as preliminary objections
particularly on grounds of Jurisdiction.

2.1.3: The Procedures of the Proceedings.

In any dispute the authority to which a dispute is tabled has to find for the proper
procedures which will guide the whole proceedings of the dispute. In so doing there
must be a system at which such procedures can be ascertained and applied to the
proceedings of the dispute. Normally the system is that, the parties are free to agree
on what procedures should be used in the conduct of their proceedings 506. However,
where these parties have failed to do so, then the Arbitration Tribunal may conduct
the arbitration proceedings in a manner it considers to be appropriate 507. So this
indicates the different systems which may be employed by the tribunal in such
particular instance.

2.1.4: Rules applicable to the substance of the dispute

It follows that, when all matters of procedures and jurisdiction have been determined
by the International Commercial Arbitration Tribunal, the other important issue to be
determined is what are the rules to be applicable to the substance of the dispute. Here
also the law has provided for a system to resolve this issue and that is provided under
Article 28 of the Model Law508. With that system provided therein, the arbitration
tribunal is able to determine which procedures are applicable to the substance of the
dispute. Further discussion is provided on the principles applicable in determining
rules applicable to the merits of the dispute in this paper.

2.1.5: Enforcement of its decisions

The nature of the decisions of the International Commercial Arbitration is in terms of
awards. That decision is binding subject to the provisions of Article 35-36 of the

505
See Article 10-15 of the said law
506
This is as per Article 19(1) of The UNCITRAL Model Law
507
See Article 19(2) of The UNCITRAL Model Law
508
See also Article 17 of the Rules of Arbitration of the International Chamber of Commerce

218
Model Law509. The system of enforcement of an award is tailored in such a way that
that award may be enforced even in a foreign state subject to the provisions of the
above stated law.

It can therefore be observed from the discussion above that there involvement of more
than one system of law in International Commercial Arbitration when considering or
determining the dispute at hand. Such systems of law do vary depending on the
intention of the parties to the dispute and sometimes, where such intention is absent,
then in accordance to what the arbitration tribunal may consider it appropriate for
smooth running of the proceedings and the major purpose of attaining justice to all the
parties.

2.2: Discussion with respect to the center of the question.

Having discussed various systems of law that may be used in accordance to the nature
of the demands of the arbitration proceedings, let us now turn to the core of our
question with respect to the three circumstances which are stipulated within the
question.

2.2.1: Principles applicable in determination of the law applicable to the merits

of the dispute.
There is a general agreement under International commercial arbitration that
international commercial arbitrator does not do justice in the name of any State. As a
result, and unlike a national judge, the arbitrator does not have a lex fori, and therefore
is not bound to apply any national system of conflict of laws rules. This means the
arbitrator is not bound to apply the law of the place to where the arbitration is taking
place.

Let us take an illustration that the establishment of the seat of an arbitral tribunal is in
Tanzania; this does not imply that the arbitrator will be required to apply the conflicts
of law rules in force in Tanzania. Arbitrators are not bound by the rules under the
conflict of laws. Arbitrators however are subject to a lex arbitri, that is, the law of
arbitration of the place at which the arbitration is taking place.

So, an arbitrator sitting in Tanzania will be required to apply the legal rules governing
international arbitration in force in this country. In contrast to national conflicts of law
rules, which apply to national judges, the rules of international commercial
arbitration, lex arbitri, apply to international commercial arbitrators in case of
determining which law should be applicable to the merits of the case.

However it has to be noted that always the terms of the contract or the usages of the
trade are also some important elements to be taken into consideration as per the
provisions of Article 28(4) of the Model Law which reads as follows;
“In all cases, the arbitral tribunal shall decide in accordance with the terms of
the contract and shall take into account the usages of the trade applicable to
the transaction”.

2.2.2: Determination on the rules applicable to the merits of the dispute on the
basis of the intention of the parties.

509
See also Article 28 of the Rules of Arbitration of the International Chamber of Commerce.

219
One of the typical features of Arbitration system is that most of the procedures or
terms of the proceedings are governed by what the parties to a dispute freely agree to
each other. Therefore on the very same practice of the law of arbitration, where there
is issue of which rules of law should be applicable, the first step is to look on whether
the parties did agree or have agreed on anything with respect to such question of rules
of law to be applicable.

Article 28(1) of the Model Law provides that510;

“The arbitral tribunal shall decide the dispute in accordance with such rules of
law as are chosen by the parties as applicable to the substance of the dispute.
Any designation of the law or legal system of a given state shall be construed,
unless otherwise expressed, as directly referring to the substantive of that state
and not of its conflict of laws rules”

The Institute of International Law adopted on 12 September 1989, a resolution which

also concerns the role of party autonomy in arbitration between States or State entities
and foreign enterprises where Article 6 of the said resolution stated that;
“The parties have full autonomy to determine the (...) substantive rules and
principles that are to apply in the arbitration. ...”

There are various ways in which arbitrators may employ in ascertaining the intention
of the parties, these include the presence of the choice of law clause in the terms of
the contract; arbitration agreement511; and terms of reference, written submission of
the parties, that is, it may happen that the common intent of the parties concerning the
choice of the law applicable to the merits of the dispute is expressed after the
arbitration has commenced.

In some cases, the arbitration rules to which the parties have referred, such as, for
example, the ICC Arbitration Rules, provide for the preparation of Terms of
Reference512. Terms of Reference are drafted by the arbitrators or sole arbitrator, after
consultation with the parties.

At this stage, the parties can express their wishes as to the law applicable to the merits
of the dispute. The arbitrators may not disregard this expression of the parties’
intention.
It can also happen that the common intention of the parties emerges from their
exchange of written submissions during the course of the proceedings.

510
See also Article VII of the European Convention on International Commercial which under
paragraph one of provides that;
“The parties shall be free to determine, by agreement, the law to be applied by the arbitrators
to the substance of the dispute ...”
The same rule is found in Article 42 of the Washington Convention of 18 March 1965.
511
The arbitration agreement can take the form of an arbitration clause in the contract or an agreement
to submit an existing dispute to arbitration. In either case, the parties will have the right to establish the
framework for their arbitration. From this perspective, the parties can agree on the nature of the rules of
law that the arbitral tribunal will have to apply to the merits of the dispute. The application of such
rules thus becomes, in the clearest way, an element which the arbitrators must take into account in
carrying out their function.
512
Article 18 the ICC Arbitration Rules

220
However it has to be taken into account that the principle with respect to party
autonomy is not an absolute solution to the choice of the law applicable to the merits
of the dispute. When the parties express themselves on this point, they do not always
do so very clearly. When there is no express provision, the question of an implied
choice always has to be considered. This therefore means that there is an
interpretation of the intention of the parties when there is an express choice and also
there is an implied interpretation where there is no express choice.

Generally from the above discussion and position of the law, it can be observed that
where the parties have shown their own intention as to which rules of law should be
applicable, then the arbitral tribunal is bound to follow such intention of the parties.

2.3: Determination of the rules applicable to the merits of the dispute in the
absence of choice by the parties.
It happens in some disputes that parties do not show in the terms of their agreement as
to which rules of law shall be applicable in case of any arbitration proceedings
between the parties nor do they agree during the proceedings as to which rules of law
should be applicable between the parties. Where the parties have not chosen the
applicable law, even implicitly, it is for the arbitrators to make this decision
themselves. Since the arbitrator is involved in determining the law applicable to an
international dispute, his first instinct is to look towards the conflict of laws approach.
However, he can also use the direct method.

To start with the use of the conflict of laws approach; as we have pointed out earlier,
the idea that international commercial arbitrators do not have a lex fori comparable to
judges is universally accepted. The choice of the seat of the arbitral tribunal, made for
reasons of mere convenience or neutrality with respect to the parties, does not imply
in the least that the arbitrators are obliged to apply the rules of conflict of laws of that
country.

The UNCITRAL Model Law, repeating the same provision found in its own
Arbitration Rules of 1976, demonstrates very clearly the evolution that has taken
place. Article 28(2) of the Model Law states;
“Failing any designation by the parties, the arbitral tribunal shall apply the
law determined by the conflict of laws rules which it considers applicable.”

The arbitrators are free to choose the conflict rule or rules to apply. Deprived of any
mandatory element in this respect, conflict of law rules become here, in the hands of
arbitrators, more tools of legal reasoning than a source of restrictions. In the first, the
arbitrators may consider the points of contact that the case has with different States in
order to eliminate the conflict of law rules of countries without links, or with only
very tenuous links, and retain those with substantial connections to the case.

However, the arbitrators can adopt a different approach. They can decide to leave
aside the specific conflict of laws rules of those States with a connection to the case
and refer to general principles of private international law or to conflict rules taken
from a review of the private international laws of several countries. Thus, the rule
“locus regit actum” is of such widespread application with respect to the formal
requirements for legal acts that an arbitrator could easily decide to apply this conflicts
rule as a general principle of private international law without referring to the laws of

221
any particular State. However, there are not many conflict rules that can be said to
have acquired this status of generally accepted principle.

On the second approach, that is the direct approach, many recent statutes on
international arbitration have abandoned the relatively rigid approaches to the
determination of the law applicable to the merits of the dispute by the arbitrators. In
that sense they have adopted the direct method which also appears in the new ICC
Rules arbitration and this has the effect of expanding considerably the scope of
application of this method. Article 17(1) of the ICC rules reads;
“…In the absence of any such agreement, the Arbitral Tribunal shall apply the
rules of law which it determines to be appropriate”.

This is to say that where the parties do not reach mutual consensus as to which rules
of law should be applicable to their dispute; the arbitral tribunal shall have to consider
that issue with respect to the law regarding conflict of laws or use of direct method.

3.0 CONLUSION
To conclude, generally the principles underlying international commercial arbitration
are guided by various international instruments and that whenever there is the
question as to determination of the law applicable in the merits of the dispute the
principles within such instruments will be the basis of resolving such question of law.

222
BIBLIOGRAPHY.

INTERNATIONAL INSTRUMENTS
European Convention on International Commercial Arbitration 1961
International Chamber of Commerce Rules of Arbitration 1998
UNCITRAL Model Law on International Commercial Arbitration 1985

CONSTITUTIONS

Tanganyika Order in Council 1920 (22/7/1920)

The Constitution of United Republic of Tanzania, 1977 (As amended from time to
time).

STATUTES

Tanzania Government of the Arbitration Act, [Cap. 15 R.E 2002], the Government
Printers, Dar es Salaam.

Tanzania Government of, the Basic Rights and Duties Enforcement Act No 33 of
1994, the Government Printers, Dar es Salaam.

Tanzania Government of, the Civil Procedure Code Act, 1966, the Government
Printers, Dar es Salaam.

Tanzania Government of the Judicature and Application of Laws Ordinance, Cap

453, 1961, the Government Printers, Dar es Salaam.

Tanzania Government of the Judicature and Application of Laws Act, [Cap 358
R.E 2002], the Government Printers, Dar es Salaam.

BOOKS.

Bansal A.K (2005) Arbitration & ADR, Universal Law Publishing Co. Pvt. Ltd,
Delhi.

Court of Appeal of Tanzania (2004) the History of Administration of Justice in

Tanzania, 1st edition, Mathews books & Stationeries, Dar-es-salaam.

Hornby, A. S, (2002), Oxford Advanced Learners Dictionary, 6th Edition, Oxford

university Press, New York.

JOURNALS AND ARTICLE

Bedman, B “From Litigation to ADR: Brown & Root’s Experience”, in Dispute

Resolution Journal. Vol. 50 1995

223
Berman, Gray, S “Facilitated Negotiation: An Effective ADR Technique” in Dispute
Resolution Journal Vol. 50 April, 1995

Caudorn, “Blow the Whistle on Employment Dispute” in Workforce Vol. 76, (1996)

OTHER PUBLISHED MATERIAL

Vinod, A. & B. Owasanoye, “Dispute Resolution Mechanism & Constitutional Rights

in Sub-Sahara Africa Alternative Dispute Resolution Methods”. Paper
written following a UNITAR Sub-Regional Workshop on Arbitration &
Dispute Resolution [Harare Zimbabwe 11 to 15 September. 2000]

WEBSITES:

www.adr.org/guides/employment guides. html

www.adr.org/press/smart.solution.html
www.adv.org/guides/guide.html
www.batnet.com/vikoumere/arbover.html

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ARTICLE ON CHOICE OF LAW IN ARB ITRATION
INTRODUCTION
In the great majority of cases in which an international arbitration takes place, the
arbitrator (or arbitrators) finds himself faced with a legal situation of an international
nature. Even if the international character of the arbitration and that of the legal
relationship on the merits often go together, the two questions need to be
distinguished from each other.

The attention of the arbitrator will be un avoidably drawn to the question each time
that the parties expressly request him to decide the question of the applicable law. For
this reason, the parties can demand that the arbitrators decide this question by means
of a partial award rendered at the outset of the procedure.

However, even when not faced with such a demand, the arbitrator must take a position
on this point. The law applicable to the merits of the dispute will affect the approach
of the arbitral tribunal to a significant degree. This must be carefully distinguished
from the rules of law applicable to the procedure.

In this way, Article 19 of the UNCITRAL Model Law on International

Commercial Arbitration deals with the determination of procedural rules. A different
provision, Article 28 of the same Model Law, is devoted to the law governing the
merits of the dispute.

The determination of the rules of law applicable to the merits of the dispute can be
very simple to resolve in some cases, but a very complex matter in others. Arbitrators
must, therefore, have an excellent knowledge and understanding of the principles
which will enable them to perform as well as possible this sometimes delicate aspect
of their task.

That is why the present chapter begins with a short explanation of the way in which
the legal rules to be applied by the arbitrator are determined. That will be the subject
of Part1.

Part 2 considers the basic rule, which is that of party autonomy. The arbitrator is
required, whenever the issue arises, to give effect to the will of the parties concerning
the applicable law.

Part 3 will consider the situation of the arbitrator deciding on the law applicable to the
merits of the dispute where he cannot rely on any indications from the parties as to
their intentions. In such circumstances, it is important to determine the principles that
will guide the arbitrator in his choice of the applicable rules of law.

Part 4 is devoted to the specific role that may be played in all these situations by the
provisions of the contract and trade usages.

Finally, Part 5 deals with the question of the application by the arbitrator of
international public policy and mandatory rules of law, which must be applied even if
the rules of law applicable to the merits of the dispute are determined on the basis of
other considerations.

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1. THE PRINCIPLES TO BE APPLIED BY THE ARBITRATOR IN THE
DETERMINATION OF THE LAW APPLICABLE TO THE MERITS OF THE
DISPUTE
1.1 Lex Arbitri
Notwithstanding the many theories concerning the role of the arbitrator, which will
not be reviewed in this paper, there is widespread consensus on one point: the
international commercial arbitrator does not do justice in the name of any State. As a
result, and unlike a national judge, the arbitrator does not have a lex fori, and
therefore is not bound to apply any national system of conflict of laws rules.

Consequently, and to provide an example, the establishment of the seat of an arbitral

tribunal in Switzerland or in France does not mean that the arbitrator will be required
to apply the conflicts of law rules in force in Switzerland or in France. However, even
though arbitrators do not have a lex fori, they are subject to a lex arbitri.

So, an arbitrator sitting in Switzerland or in France will be required to apply the legal
rules governing international arbitration in force in that country. In contrast to
national conflicts of law rules mentioned above, which apply to national judges, the
rules of international commercial arbitration the, lex arbitri, apply to international
commercial arbitrators. It is therefore in the applicable arbitration law that the
arbitrator will seek the rules to be applied to the determination of the law applicable to
the merits of the dispute.

1.2 Lex Arbitri and Institutional Arbitration

One must also take into account the fact that in numerous cases, the parties decide to
entrust the resolution of their dispute to an arbitration institution whose rules they
have agreed to follow. In such cases, the arbitration rules of the institution must be
applied by the arbitrators as reflecting the parties’ intentions.

Consider as an example the case of a dispute between a Swiss party resident in

Switzerland and a Spanish party resident in Spain, the parties having expressed their
agreement to ICC arbitration, by means of an arbitration clause in their contract, with
Geneva as the seat of arbitration. This arbitration would be governed by the Swiss law
on international arbitration (Article 176 of the Swiss P.I.L Act of 18 December 1987),
which functions as the lex arbitri. It would give full effect to the ICC Rules of
Arbitration chosen by the parties in this example.

2. DETERMINATION OF THE RULES OF LAW APPLICABLE TO THE

MERITS OF THE DISPUTE ON THE BASIS OF THE INTENTION OF THE
PARTIES.
When called upon to determine the rules of law applicable to the merits of a dispute,
international commercial arbitrators encounter, in the vast majority of cases, clauses
by which the parties declare their intentions concerning the law applicable to the
contract or to the merits of the dispute. These clause scan provide great assistance to
arbitrators in the performance of their duties.

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However, they can also cause great problems. This Part contains an over view of the
principal questions that an arbitrator must consider when faced with this problem, and
the generally accepted principal elements used to solve the problem.

2.1 The arbitrator is required to give effect to the intention of the parties.

2.1.1 The basis of the rule

The UNCITRAL Model Law on International Commercial Arbitration, adopted by
the United National Commission on International Trade Law, which has inspired
numerous national arbitration laws, provides in its Article 28(1): Article 28(1) of the
UNCITRAL Model Law on International Commercial Arbitration
“The arbitral tribunal shall decide the dispute in accordance with such rules of law
as are chosen by the parties as applicable to the substance of the dispute. Any
designation of the law or legal system of a given State shall be construed, unless
otherwise expressed, as directly referring to the substantive law of that State and not
to its conflict of laws rules.”

The European Convention on International Commercial Arbitration of 21 April1961,

also called the Geneva Convention, includes an Article VII whose first paragraph
states:
“The parties shall be free to determine, by agreement, the law to be applied by the
arbitrators to the substance of the dispute ...” Article VII, European Convention on
International
Commercial Arbitration

The same rule is found in Article 42 of the Washington Convention of 18

March 1965 (which created ICSID).
The Institute of International Law adopted during its session at St Jacques de
Compostelle on 12 September 1989 a resolution which also concerns the role of party
autonomy in arbitration between States or State entities and foreign enterprises.

“The parties have full autonomy to determine the (...) substantive rules and principles
that are to apply in the arbitration. ...” Article 6, ILI
Resolution of 12September 1989, St Jacques de Compostelle

All national commercial arbitration statutes that contain a provision on this subject
reproduce this rule with few variations. Article 15, OHADA
Uniform Act on Arbitration 11/3/99

“The arbitrators shall decide the dispute in accordance with the rules of law chosen
by the parties or, in the absence of such a choice, according to those chosen by them
as the most appropriate taking into account, where necessary ,the international trade
usages. ... “

The arbitration rules that the parties may select use the same approach. To Article 33
of the UNCITRAL Arbitration Rules, mentioned above, can be added Article 17 of
the 1998 ICC Arbitration Rules which provides that
“The parties shall be free to agree upon the rules of law to be applied by the Arbitral
Tribunal to the merits of the dispute. ...” Article 17.1 of the ICC Arbitration Rules

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The arbitrators are thus bound to apply to the merits of the dispute the rules of law
chosen by the parties. This is a general rule of international arbitration law. This rule
is not surprising in that most disputes submitted to arbitration are problems involving
contractual matters, and the choice of the law applicable to the contract traditionally
depends on the choice of the parties. The justification for this solution is reinforced by
the influence of the parties’ intentions in arbitration generally.

It is nonetheless true that the New York Convention of 1958 does not consider the
application by the arbitral tribunal of rules of law different from those indicated by the
parties to the merits of the dispute, as a ground for refusing enforcement of the award.

However, it is difficult to see what reason a tribunal would have to overlook the
intention of the parties on this point. Moreover, the New York Convention is not
applied to every situation, even by Contracting States. Furthermore, the failure to
observe the parties’ intention concerning the applicable law can be dealt with by the
setting aside of the award whenever the arbitration law whose rules are applicable for
annulment purposes includes the failure to observe the scope of the arbitrators’ task as
one of the grounds for setting aside awards.
“Recourse for nullity is only admissible in the following cases: (...) - if the arbitral
Tribunal has settled without conforming to the assignment it has been conferred
[sic];”
Article 26, OHADA Uniform Act for Arbitration

2.1.2 The Meaning of the Rule

It follows from the texts just quoted that the freedom of the parties is not limited to
the choice of the law of a State, as is often the case when a dispute is brought before a
national court. The use of the expression “rules of law” in the UNCITRAL Model
Law and the national laws that have followed it is generally interpreted as signifying
that the contract must be subjected to some rules of law, but that these rules do not
necessarily have to be part of a particular legal system or take the form of a national
law.
The “lex mercatoria” is often presented as a body of rules of transnational law
applicable in particular to international commercial contracts. Of recent origin, the
“UNIDROIT Principles for International Commercial Contracts”, put together by a
select group of independent specialists under the auspices of UNIDROIT; have the
aim of providing a coherent set of rules, distinct from the law of individual States,
providing proven solutions for international contracts.

The resort to arbitration enables full effect to be given to the parties’ decision to apply
such rules. True, they do not enjoy the full recognition that States grant automatically
to the national laws and rules of foreign States. But this recognition has already been
received in certain countries where the court shave refused to set aside arbitral awards
that were based on transnational rules or lex mercatoria.

In addition, an important resolution of the International Law Association

(I.L.A.) adopts the following solution:
“The fact that an international arbitrator bases an award on transnational rules
(general principles of law, common legal principles, international law, trade usages
etc ...) rather than the law of a given State, should not, by itself, affect the validity or

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the enforceable character of the award (...) when the parties are in agreement that the
arbitrator is to apply transnational legal rules.” International Law Association –
Cairo 1992

The principle whereby the arbitrators are required to give effect to the wishes of the
parties being clear now, it falls to the arbitrators to discover what that intention is.

2.2 The ways in which the arbitrator becomes aware of the Parties’ intention
Practical experience shows that the wishes of the parties concerning the law
applicable to the merits of the dispute can be expressed in three distinct ways.

2.2.1 Choice of Law Clause in the Contract

This situation is undoubtedly the most common. The contract in dispute contains a
choice of law clause by which the parties have designated the law applicable to their
contract. The chosen lex contractus is thus known to the parties from the time of
conclusion of the contract. Of course, the parties can in some cases delay or modify
this choice (cf: Article 3 of the Rome Convention of 19 June 1980 on Contractual
Obligations). But in the absence of such a modification, the arbitrator has no reason to
declare applicable any law other than the one governing the contract by virtue of the
clause contained in It from the time of its conclusion. At the same time, any
modification of this choice would also have to be observed.

2.2.2 Arbitration Agreement

The arbitration agreement can take the form of an arbitration clause in the contract or
an agreement to submit an existing dispute to arbitration. In either case, the parties
will have the right to establish the framework for their arbitration.
From this perspective, the parties can agree on the nature of the rules of law that the
arbitral tribunal will have to apply to the merits of the dispute. The application of such
rules thus becomes, in the clearest way, an element which the arbitrators must take
into account in carrying out their function.

2.2.3 Terms of Reference, Written Submission of the Parties

It also happens that the common intent of the parties concerning the choice of the law
applicable to the merits of the dispute is expressed after the arbitration has
commenced, unlike the two situations previously mentioned.

In some cases, the arbitration rules to which the parties have referred, such as, for
example, the ICC Arbitration Rules, provide for the preparation of Terms of
Reference (Article 18 the ICC Arbitration Rules). Terms of Reference are drafted by
the arbitrators or sole arbitrator, after consultation with the parties.
At this stage, the parties can express their wishes as to the law applicable to the merits
of the dispute. The arbitrators may not disregard this expression of the parties’
intention.
It can also happen that the common intention of the parties emerges from their
exchange of written submissions during the course of the proceedings.
It is not unusual to find in arbitral awards that the determination of the law applicable
to the merits of the dispute has been made on the basis of agreement discerned from
concordant statements contained in the written submissions of the parties. Agreement
between the parties on the applicable law obtained during the course of the
proceedings is no less indicative of their intention than an arbitration clause or an

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agreement to submit an existing dispute. Its lateness does not reduce the compulsion it
imposes on the arbitrators with respect to the applicable rules of law.

Whatever the means by which the will of the parties is demonstrated to them,
arbitrators must give effect to it, and therefore interpret it.

2.3 Interpretation of the will of the parties

Unfortunately, it would be illusory to think that recourse to the principle of party
autonomy disposes of all the problems faced by arbitrators in determining the law
applicable to the merits of the dispute. When the parties express themselves on this
point, they do not always do so very clearly. When there is no express provision, the
question of an implied choice always has to be considered.

2.3.1 Interpretation of the Will of the Parties in the Presence of an Express

Choice of Law
The form in which the will of the parties is expressed makes no difference.
Interpreting the choice of the parties can be a task for the arbitrators, which varies
considerably in its difficulty. We will begin by looking at clauses, which appear from
time-to-time in contracts or arbitration agreements. The simplest clause, and
undoubtedly the most common, is that by which the parties designate a national law.
The parties are at complete liberty to select a law having no connection with their
contract. In this way, parties can stipulate that Lebanese or German law will govern
their contract. In such cases, the lex contractus will be the laws of Lebanon or
Germany. Such laws will then be applied to most of the questions for which it is usual
in private international law to apply the lex contractus. It should be noted that party
capacity, as a general rule, is governed by the personal law of the party and not the lex
contractus.

It is possible for the parties to consider that the provisions of their contract should
take priority over those of the applicable law, or that the law chosen by them will only
apply in the absence of a specific contractual provision. An international commercial
arbitrator can give effect to such a stipulation because he is not required to apply
systematically to an international contract all of the rules of the legal system
governing the contract, but only specific rules of law.

However, if particular contractual provisions are to be excluded from the law chosen
by the parties, those provisions will not be governed by any law. Although the
question is controversial, it seems preferable to allow the arbitrator to apply legal
rules to the whole contract. He can anyway choose to apply rules to the contractual
provisions in question other than those which the parties wanted to exclude. He can
even refuse to follow the will of the parties on this point if he can put forward
convincing reasons for doing so. In any event, the arbitrator must not lose sight of
international public policy or mandatory rules of law

In the same way, the will of the parties must be observed when the applicable law
clause refers only to particular aspects of a national law, such as those concerning
force majeure or seller’s guarantees. However, the problem of the law applicable to
the merits of the dispute remains. The arbitrator can be tempted to interpret a

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reference to that law as a global reference, or to determine the law applicable to the
contract on some other basis.

Parties can also stipulate in a contract term or an arbitration agreement that their
contract is to be governed by the provisions of an international convention, such as
the Vienna Convention on the International Sale of Goods even if the Convention is
not in force in any relevant state. The Vienna Convention does not mention the will of
the parties as a basis for its application. Furthermore, it cannot be assimilated to a lex
contractus, and not just because of important questions, it does not cover (validity,
transfer of ownership ...). The arbitrator, unlike a judge, is not inhibited by these
difficulties. Not being the organ of a State, he is not required to give effect to the
conditions relating to the entry into force and application of the Convention as would
a judge of a particular country. The arbitrator cannot be constrained by the fact that
the Convention applied in this way, without the support of the law of a State, does not
constitute a true lex contractus. It is sufficient that the parties designate the
Convention’s rules.

It also occurs that the applicable law clause designates non-State rules such as lex
mercatoria, or “the general principles of international commercial law”, or “the
UNIDROIT Principles for International Commercial Contracts”. Here again, the
arbitrator must not hesitate to give effect to such clauses. As a matter of principle, the
need to follow the wishes expressed by the parties should prevail over the concerns
that an arbitrator might have about whether the award could be annulled on that basis.
The arbitrator must be aware that the award he will render will not be under threat
because of his application of non-State rules, at least not when the parties have
expressly agreed to this.

The award can only be set aside if the rules applied, whatever their origin, or the
substantive provisions of the contract, are declared contrary to international public
policy by the judge reviewing the content of the award.

Leaving aside these questions of principle, though, clauses which designate non-State
rules (apart from easily-identified international conventions) are sometimes difficult
to interpret by reason of their extreme vagueness or breadth.
The same is true of complex clauses which involve a combination of rules of different
origins. While such clauses are often encountered in State contracts, they are also
found in contracts between private parties. In such cases, the reference to international
law, or principles of international law (i.e. public international law) is generally
absent, or if stated, is not always followed to the letter by arbitrators.

References to the law of a State are conceptually straightforward and normally clearly
stated. By contrast, complex and vague statements generally express the desire of the
parties to exclude certain or all national laws. They cannot really be understood as a
reference to transnational principles or lex mercatoria.
It is difficult to see on what basis public international law could be applied to
individuals.
Such complex choice of law clauses constitute an expression of the parties’ intentions
that arbitrators have to interpret. Is it possible, though, for arbitrators to take into
consideration an implied choice of law?

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2.3.2 The Implied Choice of the Parties
It follows from the preceding discussion that the arbitrator faced with an applicable
law clause included in the contract, the arbitration agreement, or even something done
during the course of the arbitration, has no choice but to give effect to that clause. One
of the strongest arguments in favour of this view is that the legitimate expectations of
the parties are that the arbitrator will respect the terms of the parties’ agreement.

There are consequently strong reasons why the arbitrator should be inspired by the
same approach even when the parties have not expressly indicated their view on the
applicable law. On that basis, it is necessary, before seeking an objective perspective
on the applicable law, to try to find the implied intentions of the parties with respect
to this question. The principal texts on international arbitration are silent on this
possibility.

They content themselves by contrasting, in a fairly summary fashion, the expressed

will of the parties with the situation where there is an absence of such an expression,
and say nothing about implied intention. The spirit of international arbitration, as well
as that of international contract law, supports a degree of flexibility in the application
of this distinction (cf: Article 4.1 of the Rome Convention of 19 June 1980 on
Contractual
Obligations). Consequently, it does not seem unreasonable for arbitrators to take into
account the implied wishes of the parties.

Unfortunately, the concept of an implied intention can be understood in a number of

different ways, none of which is definitely correct. A strict approach does not permit
an implied intention to be deduced from anything other than the contract itself or the
conduct of the parties. Thus, an agreement referring to, or reproducing a standard-
form contract, itself usually governed by a particular national law, can be considered
as containing an implied choice of that particular law. Also, a contract repeatedly
referring to a certain national law could provide in this way an indication of an
implied intention of the parties to have their contract governed by that law. On a less
strict view, implied intention can be inferred from all the elements of the contract
which, depending as they do on the will of the parties, establish a kind of link desired
by the parties between the contract and the rules of a particular legal system. In such a
case, account can be taken of specific elements of the contract, as in the first
hypothesis, a passing reference to a given law, or a standard-form contract or extrinsic
elements such as the place of performance, the main feature of the contract if there is
one, or the domicile or place of incorporation of the parties. There is no doubt that the
extraneous elements, just referred to, do not express, as such, the wish of the parties to
refer to the rules of a given legal system, but they nonetheless depend on the will of
the parties. The parties will not find their plans or expectations disrupted if the
arbitrator takes into account the close links that they themselves have created between
their contract and a given legal system.

Given that the rules which apply to the determination of the law applicable to the
merits of the dispute in international commercial arbitration are generally silent on the
question of implied choice of law, it is inevitable that they do not contain any
clarification concerning the elements to be taken into account by the arbitrator in
identifying the presence or absence of any implied intention.

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In summary, the arbitrator is at liberty to seek out or not the implied wishes of the
parties. The availability of this option suggests that it should be used. The arbitrator is
also free, if he decides to undertake the search, to decide how to go about determining
the existence or otherwise of an implied intention.

However, it is preferable for an arbitrator not to disguise the objective connecting

elements as evidence of an implied intention. Since all texts on the law applicable to
the merits of the dispute give the arbitrator the power to determine the applicable law
without establishing the wishes of the parties, it is unnecessary to resort to fictitious
intentions. Recognition of the implied wishes of the parties is justified above all else
to avoid a formal approach to the choice of applicable law that is not required by any
of the rules. This forces arbitrators to accept sometimes that the parties have not
designated the law applicable to the merits of the dispute.

2.4 Amiable Composition.

2.4.1 The concept of Amiable Composition
Amiable composition entitles the arbitrator not to be bound by any process of strict
legal reasoning – of which the rules of law and the contract are the principal points of
reference – if the requirements of equity call for a different solution.

The right to act as an amiable compositeur cannot be presumed and must result from
an express authorization by the parties.
“The arbitral tribunal shall only decide ex aequo and bono or as amiable
Compositeur if the parties have expressly authorized it to do so.”
Article 33(2) of the UNCITRAL Model Law
When that is the case, amiable composition is not incompatible with the application
by the arbitrator of rules of law. But the arbitrator derives from his powers as amiable
compositeur the right to ignore a legal rule if it would otherwise lead to a result
contrary to equity. This means that he can perfectly well apply a rule of law without
resorting to his powers as an amiable compositeur. He must, though, satisfy himself of
the compatibility of the resulting solution with equity. Otherwise he has not have
performed the task the parties expected of him. Amiable composition is as much a
responsibility as a power.

The arbitrator also derives from amiable composition a power to modify the Contract.
From this point of view, amiable composition has as its foundation “the waiver by the
parties of the right to rely on the benefits given to them by the contract”. Equity thus
enables the arbitrator to reduce the excessive consequences that may flow from a
strict application of the agreement. The arbitrator can even openly ignore certain
contractual stipulations: for example excluding the charging of interest at bank rates
provided for in the agreement or awarding an indemnity on the termination of a
contract even though the contract expressly provides for no payment in such
circumstances.

2.4.2 Amiable Composition and Equity

In certain legal systems, one finds references to “equity” rather than amiable
composition. Parties often use one formula or the other without fully understanding
the possible differences. An equitable (or ex aequo et bono) clause must be
understood as wider in scope. According to various writers, equity must be

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understood as “a decision taken on the specific facts of the case without regard to any
prescribed general rules, even mandatory ones.”

Amiable composition implies a resort to rules, whereas ex aequo et bono involves

ignoring them entirely. Either way, neither an amiable composition nor an ex aequo et
bono clause can be assimilated in any sense to a choice by the parties of non-state
rules.

Finally, the presence in a contract of an ex aequo et bono or amiable composition

clause does not relieve the arbitrator of the need to take into account international
public policy
Summary:
Arbitrators must always look carefully at clauses that provide for amiable
composition. If such a power has been conferred on them, it does not exclude the
application of legal rules. It merely requires the verification of their compatibility
with the requirements of equity.

3. DETERMINATION OF THE RULES OF LAW APPLICABLE TO THE

MERITS OF THE DISPUTE INTHE ABSENCE OF A CHOICE MADE BY
THE PARTIES
The approach of respecting the wishes of the parties concerning the law applicable to
the merits of the dispute has necessarily some limits. Where the parties have not
chosen the applicable law, even implicitly, it is for the arbitrators to make this
decision themselves. One constantly finds this rule in the principal international texts
governing international arbitration and numerous national laws that contain a
provision on this question. Since the arbitrator is involved in determining the law
applicable to an international dispute, his first instinct is to look towards the conflict
of laws approach. However, he can also use the direct method.

3.1 Determination of the Rules of Law Applicable to the Merits of the Dispute by
the Conflicts of Law Method
The time has now passed since the Institute of International Law wanted to require
international commercial arbitrators to apply the conflicts of law rules in force in the
country of the seat of the arbitration (Resolution of Amsterdam, 1957). The idea that
international commercial arbitrators do not have a lex fori comparable to judges is
well on its way to universal acceptance. The choice of the seat of the arbitral tribunal,
made for reasons of mere convenience or neutrality with respect to the parties, does
not imply in the least that the arbitrators are obliged to apply the rules of conflict of
laws of that country.

The UNCITRAL Model Law, repeating the same provision found in its own
Arbitration Rules of 1976, demonstrates very clearly the evolution that has
taken place.
“Failing any designation by the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers applicable.”

The arbitrators are free to choose the conflict rule or rules to apply. Deprived of any
mandatory element in this respect, conflict of law rules become here, in the hands of
arbitrators, more tools of legal reasoning than a source of restrictions.

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In practice, arbitrators can favour two different approaches.
In the first, the arbitrators may consider the points of contact that the case has with
different States in order to eliminate the conflict of law rules of countries without
links, or with only very tenuous links, and retain those with substantial connections to
the case. This process can leave the arbitrators with the conflict rules of only one
country: for example, that of the place of performance of the principal feature of the
contract, or that of the habitual residence or place of incorporation of a party,
combined perhaps with another element such as the place of signature or performance
of the contract. Article 28(2) of the UNCITRAL Model Law

However, in most cases, significant links exist with several States and the arbitrators
can take into account the conflict rules in force in those different places. They may
then look to see whether these rules would produce the same solution, in which case
they duly adopt it. So, in certain circumstances, the conflict rules of two different
States may lead to the application of the laws of the place of habitual residence or the
place of incorporation. In another example, a contract may have been concluded in the
country where it is to be performed, which is not the place of incorporation of the
parties. If the conflict rules of State A provide for the place of signature of the
contract as a connecting factor and the conflict rules of State B provide for the place
of performance, these rules are different but they lead to the same result. The
arbitrator will apply the law designated by these different conflict rules.

However, the arbitrators can adopt a different approach. They can decide to leave
aside the specific conflict of laws rules of those States with a connection to the case
and refer to general principles of private international law or to conflict rules taken
from a review of the private international laws of several countries. Thus, the rule
“locus regit actum” is of such widespread application with respect to the formal
requirements for legal acts that an arbitrator could easily decide to apply this conflicts
rule as a general principle of private international law without referring to the laws of
any particular State. However, there are not many conflict rules that can be said to
have acquired this status of generally accepted principle. It is, therefore, not surprising
that arbitrators increasingly recognise the advantages of the “direct method”.

3.2 Determination of the Rules of Law Applicable to the Merits of the Dispute by
the Direct Method

3.2.1 Admissibility of Resort to the Direct Method

The direct method was not included in either the UNCITRAL Model Law or the 1961
Geneva Convention. However, international conventions place very few restrictions
on arbitrators in this area. Article VII of the Geneva Convention is only a default
provision and it is always possible for the parties to require the arbitrators to apply a
different rule on the applicable law. This comes about each time that they choose to
subject their arbitration to a more liberal set of arbitration rules.

As for the UNCITRAL Model Law, it entitles adopting States to modify or to exclude
its provisions as much as they like when enacting their own arbitration legislation.
Many recent statutes on international arbitration have abandoned the relatively rigid
approaches to the determination of the law applicable to the merits of the dispute by

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the arbitrators, which are contained in the Model Law and the Geneva Convention.
Section 28 of the
Indian Arbitration and Conciliation Act, 1996, based on the UNCITRAL Model
Law but modifying the
Question treated In Article 28-b-iii

“-Rules applicable to the substance of the dispute-(1)Where the place of arbitration is

situated in India (...)
(b) in international commercial arbitration,-

(i) The arbitral tribunal shall decide the dispute in accordance with the rules of law
designated by the parties as applicable to the substance of the dispute;

(ii) Any designation by the parties of the law or legal system of a given country shall
be construed, unless otherwise expressed, as directly referring to the substantive law
of that country and not its conflict of law rules

(iii) Failing any designation of the law under sub-clause (ii) by the parties, the
arbitral tribunal shall apply the rules of law it considers to be appropriate given all
the circumstances surrounding the dispute.”

On the other hand, the direct method appears in the new ICC Rules of
Arbitration and this has the effect of expanding considerably the scope of application
of this method.
…In the absence (ICC Rules Article 17.1) of any such agreement, the Arbitral
Tribunal shall apply the rules of law which it determines to be appropriate.

3.2.2 Meaning of Recourse to the Direct Method

The direct method gives the arbitrator maximum freedom. It does not stop him from
using a conflict-of-laws-based approach. The arbitrator may consider that the
applicable rules should be those of the State with which the contract is most closely
connected, and determine this freely without reference to any pre-established conflicts
rule. This is, in one sense, a use of the direct method. The direct method, though, does
not prevent the arbitrator from using a conflicts analysis. It also gives the arbitrator a
great deal of freedom to search for appropriate rules. These rules may be those of a
legal system with a very close connection to the contract just as much as rules whose
nature or substance render them particularly appropriate to be applied to the disputed
contract.

On that basis, the arbitrator could consider as most appropriate the rules of a legal
system which recognizes and contains specific rules on the type of contract in
question, rather than a system that does not (e.g. in the case of a franchising contract,
or a trust). Likewise, he could consider more suitable rules that enforce the contract
rather than make it null and void. However, recourse to the direct method raises
certain specific questions on the selection of non-State rules.

3.2.3 The Direct Method and Designation of Non-State

Rules of law

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When the international arbitrator resorts to the direct method, he can apply the laws of
a State or non-State rules to the dispute.

However, in the absence of a choice by the parties, the arbitrator may hesitate before
rejecting the application of a national law in favour of the lex mercatoriaor other more
or less similar rules. On which elements should he base his decision?

On this point, an analysis of ICC arbitral awards is instructive. The debate on this
point has been modified and enlivened somewhat by the appearance and discussion in
academic and arbitration circles of the UNIDROIT Principles for International
Commercial Contracts.

One cannot approve the fortunately rare awards which apply lex mercatoriaor the
UNIDROIT Principles without giving any reasons for doing so. It is equally difficult
not to have reservations about awards which justify the exclusion of any national law
on the basis of the difficulty, or even impossibility, of determining the applicable law
because the contract is linked to several legal systems. Is this not the whole point of
having conflict of laws rules?

However, this solution could be understandable where the conflicts rule would lead to
the designation of a law whose application would come as a great surprise to the
parties.
It is surprising that arbitrators can be tempted to justify their choice of the UNIDROIT
Principles (or other non-State rules) by the absence of choice of law by the parties.
There is no fundamental, a priori reason for arbitrators to try to give effect to a
negative choice. All too often, arbitrators conclude from the absence of any choice of
law that the parties intended to exclude all national laws.

However, a negative choice is not always easy to interpret. First of all, care must be
taken not to confuse the absence of choice with a negative choice. A negative choice
requires at a minimum that in their submissions or the Terms of Reference, the parties
advance arguments against the application of certain national laws or demonstrate an
unwillingness to have any municipal law applied to the case.

A negative choice must not be confused with total disagreement on the applicable
law. It is not possible to conclude from that fact that each party has excluded the
national laws of the other party, or its own national laws, or that the parties have
declared their opposition to the application of any national law. Some additional
elements appear to be necessary.

It is noticeable that a negative choice occurs most frequently in State contracts.

This can be dictated by each party’s wish to exclude the application of the other
party’s law. Subject to these reservations, the concept of a negative choice remains
something worth considering for arbitrators. Nevertheless, one would prefer a set of
objective criteria to support or reinforce a negative choice that could reveal that the
lex mercatoria or UNIDROIT Principles were particularly appropriate for the
resolution of the merits of the dispute. This would be the case where the arbitrators
consider that no decisive element tips the balance in favour of one law rather than
another .It would also be the case where the arbitral tribunal needs to fill a gap in an

237
international treaty, such as the Vienna Convention, or in an other wise applicable
national law, and the available non-State rules provide a solution to the question.

It also happens that arbitrators, even though they have decided to apply to the merits
of the dispute the provisions of a national law or the common elements of several
national laws, rely on the UNIDROIT Principles to buttress or verify the solution
reached. One cannot criticise arbitrators who have taken the trouble to check that the
“rules” applied to the merits of the dispute are in harmony with the requirements of
international trade, which happen to have been taken into account in non-State rules.

Summary:
Wherever the parties have not chosen the law applicable to the merits of the dispute,
the arbitrators may have recourse to the conflict rules of one or more States, or to
general principles of private international law. They can also resort to the direct
method, which enables them to avoid using a conflicts approach and to select the
appropriate rules for the purpose of resolving the dispute. Appropriate rules can come
from the law of a State, an international convention, or the lex mercatoria. Regardless,
however, of whether the parties have expressed their intentions with respect to the law
applicable to the merits of the dispute, the arbitrators are required to take full account
of contractual stipulations and trade usages.

4. CONTRACTUAL PROVISIONS AND TRADE USAGES

Contractual provisions and trade usages: these two expressions are found together in
most texts devoted to international arbitration. Article 28(4) of the UNCITRAL
Model Law on International Commercial Arbitration

“In all cases, the arbitral tribunal shall decide in accordance with the terms of the
contract and shall take into account the usages of the trade applicable to the
transaction.”

This provision, whose two elements appear in numerous national arbitration statutes
and arbitration rules, is worth comparing to the corresponding article of the European
Convention on International Commercial Arbitration. Article VII, European
Convention on
International Commercial Arbitration

“In all cases, the arbitral tribunal shall decide in accordance with the terms of the
contract and shall take into account the usages of the trade applicable to the
transaction. Failing any indication by the parties as to the applicable law, the
arbitrators shall apply the proper law under the rule of conflict that the arbitrators
deem applicable. In both cases the arbitrators shall take account of the terms of the
contract and trade usages.”

Undoubtedly, the international commercial arbitrator has to take into account the
provisions of the contract and trade usages. This remains true whether or not the
parties have chosen the law applicable to the merits of the dispute.

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4.1 The Provisions of the Contract
The reference to the contract provisions is not, strictly speaking, relevant to the
question of the law applicable to the merits of the dispute. Legal rules must be clearly
distinguished from contractual provisions. It is, however, worth recalling that the first
duty of the arbitrator is to study the contract carefully in order to deduce its
implications. The arbitrator must above all understand the contract and work with its
internal logic. There cannot be a clash between the need for the arbitrator to focus on
interpreting the contract and his duty to apply to it the relevant rules of law. Not only
are the methods not mutually exclusive, but they are intimately related to each other.
The arbitrator must adjudicate on the contract to exactly the same extent that a she
needs to refer to the law applicable to it.

4.2 The Role of Trade Usages

The significance of the reference to trade usages varies depending on its context.
The immediate impact of the rule is as follows: the arbitrators must take into account
trade usages applicable to the contract, whatever the law applicable to it, and even
where that law results from a choice made by the parties without any particular
mention of usages of the trade.

The reference to trade usages is of even greater significance where the parties have
decided that their contract, instead of being governed by the law of a State, will be
governed by non-State rules, such as general principles generally accepted in
international trade law, UNIDROIT Principles, lex mercatoria, or an international
convention.
Article 9 of the Vienna Convention on International Sales is of similar effect when it
correctly notes in its sub-paragraph 2 that:

“The parties are considered, unless otherwise agreed, to have impliedly made
applicable to their contract or its formation a usage of which the parties knew or
ought to have known and which in international trade is widely known to, and
regularly observed by, parties to contracts of the type involved in the particular trade
concerned..”

However, trade usages must also be applied when the parties have decided that their
contract will be subject to the law of a State. It is, consequently, a duty of an arbitral
tribunal to give effect to trade usages in order to fill a gap in or alongside the
application of a national law to the contract. Article 9(2) of the United Nations
Convention on Contracts for the International Sale of Goods ICC Award in Case
no.1472, in 1968, cited in Y. Derains : “Le statutdes usages decommerce
international devantles jurisdictions arbitrales” Rev. arb.1983. p. 122
“Considering that, in the case under consideration, the contracts were signed in
Paris, French national law should apply, supplemented, if necessary, by international
custom and practice governing international contracts.”

The application of a well-established trade usage that is widely known in the

economic field or branch of commerce in which the parties are involved cannot really
come as a surprise to them. Given that they always have the option of excluding the
application of a trade usage, notably by adopting contractual provisions to the
contrary, their freedom is sufficiently protected. Besides, any usage of the trade

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established in this way will take precedence over any non-mandatory provision of the
lex contractus.

However, arbitrators must take care not to confuse trade usages with certain standard
clauses found regularly in international commercial contracts. If a clause frequently
used in international commercial contracts in general, or those of a particular branch
of activity, is not included in the contract, arbitrators should resist the temptation to
consider, on the basis of usage, that it is an implied term. Even clauses as widely used
as the INCOTERMS of the ICC must be expressly incorporated into the contract,
which tends to suggest that they should not be applied as trade usages, even if it is
undoubtedly common to refer to them. There is, in addition, another tendency in
international arbitration to adopt abroad concept of trade usages. This tendency leads
people to include within trade usages rules and principles of various origins, and, in
this way, to assimilate” trade usages” to all transnational rules (the “lex mercatoria”)
or to a collection of rules more or less representative of these, such as the
“UNIDROIT Principles”.

This view of trade usages is unacceptable. It misunderstands completely the role

played by trade usages in international commercial arbitration law. If trade usages
could be assimilated to the general rules and principles applicable in the law of
international trade, the result would be that the application of the lex contractus
chosen by the parties could always be challenged with unpredictable results on the
sole basis of trade usages, functioning as something of a “Trojan Horse”.

To the best of our knowledge, no international convention, statute, model law or

arbitration rules has ever tried to provide a definition of trade usages. The task is a
delicate one. Article 9 of the Vienna Convention, cited above, lists the conditions for
the application of trade usages, but does not define them. Nonetheless, that is not a
sufficient reason to misunderstand the distinction. Usages arise exclusively from the
behaviour of the participants in international trade. They are rules of law that arise
spontaneously. They maybe connected to a type of contractual relation as much as a
sector of activity (customs of the petroleum industry, the grain trade, banking
relations, the diamond trade, etc.). By contrast, the transnational rules and principles
that constitute the main elements of lex mercatoria, or the UNIDROIT Principles, are
norms created or accepted after deliberation by a group of people brought together for
this purpose. These norms pass through a different process than trade usages to
become part of the legal world and applied.

Unsurprisingly, in reaction to poorly reasoned awards, some arbitrator’s decisions

show a clear refusal to confuse the concepts in the way criticised above. Extract from
the ICC
Award in Case no.8873 (1999), published in ICC Bulletin, Vol. 10,No. 2, p. 81 ; JDI
1998,p. 1017 - obs. D.H
“In this case, a contract had been concluded between Spanish and French companies
with a view to undertaking construction work in a third country. The contract
contained a clause worded as follows: ‘The present contract shall be governed
entirely by Spanish law, to the exclusion of all other law.’ The arbitral tribunal
refused to apply the UNIDROIT Principles concerning hardship, as requested by one
of the parties: ‘The parties have made no reference to the Principles in question and
(…) it may be concluded with certainty from the wording of the clause on the

240
applicable law that the parties did not wish to submit their contract to lex mercatoria
or other general principles of law.” The arbitral tribunal then considered whether the
UNIDROIT Principles specially incorporated in the case under consideration could
have been applied as codification of existing practice and concluded that they did not.

What has just been said does not signify that arbitrators, bound to apply to an
international contract a national law on the basis of the will of the parties, may not
refer to the UNIDROIT Principles or other general principles of law in carrying out
their task. One should only be careful not to confuse these principles with trade
usages, with a view to conferring on them the status of trade usages in international
commercial arbitration.

5. INTERNATIONAL PUBLIC POLICY AND MANDATORY

RULES OF LAW
The question of international public policy and mandatory rules of law is too vast and
controversial for us to pretend to be able to provide a comprehensive answer herein.
The international commercial arbitrator, though, must be conscious of the impact of
this question on the determination of the applicable law.

5.1 International Public Policy: some Clarifications of its Role

In private international law, international public policy has the function of protecting
the legal system of the national judge dealing with the dispute from the application of
certain foreign laws. These foreign laws are “normally applicable”, in the sense that
their applicability is dictated by the conflict of laws rules of the forum. International
public policy thus provides the forum judge with a mechanism for the exceptional
exclusion of those provisions of the applicable law that are incompatible with the
legal system of the forum. In this way, for example, the forum judge can ignore a
foreign law that allows for the seizing of property without compensation.

The international public policy exception cannot play the same role for international
commercial arbitrators. The main reason is that the arbitrator, who does not deliver
justice on behalf of any State, does not have a national lex fori and, therefore, does
not have to defend the international public policy of a given State against a foreign
law. Indeed, the best view is that all laws are foreign laws for an arbitrator.
It is true that the arbitrator could be led to come to the defence of a truly international,
or transnational, public policy. In this sense, it is often asserted that transnational
public policy requires that no effect be given to contracts involved in setting up
corrupt transactions or traffic in human beings or organs.

However, this does not involve the arbitrator in excluding certain laws on the basis of
public policy. Public policy here performs a positive function and affects the
reasoning of the arbitrator independently of the applicable law. It determines directly
what is illicit or immoral and what is to be done in the face of such agreements to deal
with their invalidity, without going through the process of excluding an otherwise
applicable law.

In reality, in the area of the law applicable to the merits of the dispute, the
international commercial arbitrator must pay attention to the public policy of the
national judge, as is shown by the effect of mandatory rules of law.

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5.2 International public policy and mandatory rules of law in international
commercial arbitration.

5.2.1 The arbitrator must try to render an enforceable award

Mandatory rules of law (also known as laws of immediate application) belong to the
category of internationally imperative provisions. In international commercial
arbitration, we know that the arbitrator is required in the first place to apply to the
merits of the dispute the law chosen by the parties. The question arises as to whether
the arbitrator can or must apply to the merits of the dispute a mandatory provision of a
legal system that does not form part of the law chosen by the parties. Even leaving
aside the theoretical aspects of the debate, we must not lose sight of the fact that the
arbitrator has the duty toper form his task in accordance with the wishes of the parties.
This would argue in favour of the exclusion of mandatory rules of law that the parties
have declined to adopt or which do not form part of the law applicable to the merits of
the dispute, as chosen by the parties.

However, arbitrators must not lose sight of the fact that it is their duty to render an
effective award, that is an award capable of avoiding annulment and of being
enforced. Article 35, ICC Rules of Arbitration

“ In all matters not expressly provided for in these Rules, the Court and the Arbitral
Tribunal shall act in the spirit of these Rules and shall make every effort to make sure
that the Award is enforceable at law.”

The 1958 New York Convention includes in Article V(2)(b) the violation of
public policy (of the country in which recognition or enforcement is sought)among
the grounds for challenging the recognition and enforcement of an award. This is
where the relationship between public policy and mandatory rules of law comes into
focus.

The public policy in question here is that of the national judge, not that of the
arbitrator. Nonetheless, the arbitrator must try to anticipate this public policy which
constitutes a shadowy threat to his award. In fact, the international public policy of the
judge – such as it is used in the review of arbitral awards rendered in international
cases – is not very demanding. Nonetheless, this public policy is capable of including
mandatory rules of law. An arbitral award which violated a mandatory rule of law that
was applicable to the contract in question could be set aside or deprived of any effect
due to its breach of international public policy. The arbitrator must therefore be
particularly aware of two points. He must identify the international public policy to be
taken into consideration. He must also identify the mandatory rules of law capable of
being taken into account on the basis of international public policy.

5.2.2 Public Policy to be Taken into Consideration by the

Arbitrator
The arbitrator must take into account the fact that the award he renders maybe subject
to setting aside proceedings. Such proceedings will always be brought before a
national court at the place of arbitration. It follows that the international public policy
of a judge sitting there must be taken into account.

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It is more difficult to anticipate the country in which enforcement of the award might
be sought. It will usually be the country in which the losing party has its residence or
principal place of business. However, there is nothing to stop the claimant from
applying to the courts of any country in which the respondent has assets that can be
seized. It is much more difficult to predict all of the places where this might be the
case.

Even if the arbitrator cannot know where enforcement of the award might besought,
he has to decide during the arbitration what to do with any mandatory rules of law that
do not form part of the law applicable to the merits of the dispute.

5.2.3 The mandatory rules of law that may be applied by the arbitrator

In practice, the question of the possible application of mandatory rules of law can
come up in front of the arbitrator in two ways.

In the first case, one of the parties – it is rare for it to be both of them –considers that
the mandatory rule of law should be applied. In such a case, the arbitrator has only to
decide whether or not to apply a mandatory rule of law that has come into the
discussion by reason of a request formulated by one of the parties. Even if the law
does not belong to the lex contractus, the arbitrator must consider whether or not it
should be applied. At least, if he does consider it, he cannot be criticised for not
dealing with the question.
In the second situation, none of the parties requests the application of the mandatory
rule of law and there is no basis to consider it under the law applicable to the contract,
which is a different law. For example, the parties may have concluded a distribution
agreement containing certain conditions prohibited by a mandatory rule of law of
State A but declared that their contract is subject to the law of State B.

It is prudent for an arbitrator to take account of the possible incompatibility with

international public policy of an award in deciding whether to give effect to the
mandatory rule of law in question.

In this search, the arbitrator must not overlook the question of whether the mandatory
rule of law in its own words actually covers the situation of thecae. If he arrives at the
conclusion, after an examination of the facts, that the scope of the mandatory rule
does not extend to facts in question, either as a matter of substance or territoriality, he
can consider that he has correctly fulfilled his task by not applying it. Such would be
the case of a provision of the competition law statute of a State which would not
invalidate the contract in view of its insignificant impact or the absence of any anti-
competitive effect on the territory of the State whose law is in question.

If the arbitrator arrives at the opposite conclusion, he should already know the
elements favouring the application of the relevant statute. That, though, is not
necessarily enough to cause him to override the wishes of the parties. A certain
subjectivity enters the equation at this point. The arbitrator may, on the basis of the
facts of the case, consider that it is necessary, in any event, to declare invalid an
illegal or immoral contract concluded by the parties. The mandatory rule of law will
then serve, in his hands, as the basis for reaching this conclusion. By acting in this

243
manner, the arbitrator knows that he will probably not fulfill the expectations which
the parties had in resorting to arbitration.

That, though, is his choice. However, the arbitrator must also know that the judge who
may be asked to review the award might not share the same views as the arbitrator,
and therefore annul the award or refuse its enforcement.

The arbitrator can choose to avoid this element of subjectivity and err on the side of
caution. Prudence would suggest that he only give effect to a mandatory rule of law if
he is virtually certain that it will be taken into consideration as part of international
public policy by a judge with jurisdiction to review the award. An important
consideration will then enter into account. This involves knowing whether the
mandatory rule of law is, for the national judge, mandatory rule of his forum or a
foreign one.

There is a good chance that the judge, dealing with an application to set aside the
award, will refuse to give effect to an arbitral award enforcing a contractual obligation
which would violate a mandatory rule of law of his own legal system, and will set
aside the award. On the other hand, national jurisdictions are more divided over the
fate of an arbitral award that contravenes a foreign law.

Everything depends on whether the interests protected by the mandatory rule of law
are closely linked to the unique interests of the foreign State that has adopted the law,
for example a law restricting foreign exchange movements or investment. If these
interests are shared equally by the judge’s State, or generally by the international
community (for example the fight against corruption), the chances, or the risk, that the
reviewing judge might set aside the award on the grounds of a failure to apply a
mandatory rule of foreign law increase considerably. The arbitrator must therefore
take this into account.

Summary
Arbitrators are not relieved of all responsibility with respect to international public
policy. Even if the international public policy that is developing in international
arbitration is still at the embryonic stage, arbitrators must respect the international
public policy of those judges who may find themselves reviewing the award later on.
It is also true that this must be adapted to arbitration. Judges, though, will set aside
awards or refuse to enforce awards on the basis of public policy where they enforce
contractual obligations undertaken in breach of the mandatory rules of law of the
forum. The question is more complex with respect to foreign mandatory rules of law.

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JURISPRUDFENCE AND LEGAL THEORY QUESTIONS AND ANSWERS.

QUESTION:
Define Jurisprudence and explain the relationship between jurisprudence and
social science like History, Economics, Politics, psychology, psychology, and
sociology

OUTLINE
1:0 INTRODUCTION
- Meaning of jurisprudence

-definition of jurisprudence

2:0 MAIN BODY

- Relationship between jurisprudence and sociology

-Relationship between jurisprudence and Economics

-Relationship between jurisprudence and politics

-Relationship between jurisprudence and psychology

3:0 CONCLUSION

4:0 BIBLIOGRAPHY

INTRODUCTION

There are several definitions of the term jurisprudence, as it has been difficult to give
a universal definition of the term. However most of this definitions of jurisprudence
can be seen to have been deducted from the meaning of jurisprudence and thus before
defining the word jurisprudence I shall first give several meanings of jurisprudence,
there after I shall explain on the relationship between jurisprudence and social
sciences basing on different branches it has such as psychology,politics,history,
economics, sociology among others.

DEFINITIONS OF JURISPRUDENCE

The term jurisprudence is made up of two words that is Juris meaning law and
prudence meaning knowledge. Thus it can be generally be said that Jurisprudence is
knowledge of law. It also means skill of law513.

ULPIAN was the first person to give the meaning of jurisprudence: according to him
jurisprudence is knowledge of things divine and human, science of just and

513
V.D. Mahajan(2001)Jurisprudence and Legal Theory p1

245
unjust514Thus knowing the existence of a thing and how it came into existence is
jurisprudence.

Another meaning of is given by some England jurists that the word jurisprudence
means almost exclusively an analysis of the formal structure of law and its concept
This was a result of analytical exposition pioneer by Bentham and developed by
Austin of the law of England.

Not all but also jurisprudence has been taken to mean decisions of the courts.
Example jurisprudence of the ICJ.
In addition the term has been taken to mean the respective law of the country or state.
Example equity jurisprudence and medical jurisprudence.

Buckland stated that jurisprudence means ‘The analysis of legal concepts is what
jurisprudence meant for the students in days of my youth’

Another meaning of jurisprudence which is considered to be very important is that

which says jurisprudence means a division of science made in relation to general
system of legal system and general principles of law.

It is this last meaning of jurisprudence that several jurists have extracted the definition
of jurisprudence.

Salmond defines Jurisprudence as the science of law. by law here what is meant is
civil law or law of the land. Thus it can be similarly defined as the science of the first
principles of civil law 515Salmond here was concerned with the general principles of
human law.

Austin defined the term to mean the philosophy of positive law (jus positivum).The e
positive law here denotes law made by sovereign / political superior for controlling
the conduct of those subject to his authority. The term positive law here is similar to
civil law as used by Salmond.

Also jurisprudence has been defined by Holland as the formal science of positive law.
the formal science here is not material science, it’s the one dealing with concrete
details but with the fundamental principles underlying them516 .

Roscoe Pound also defines jurisprudence as a systematic arrangement of rules

administered in the court of justice or as a science of law, using the term law in
judicial sense a denoting the body of principles recognised or enforced by public and
regular tribunals in the administration of justice.

After defining the term jurisprudence, in shall here in below explain the relation ship
between jurisprudence and other branches of social science.

514
Ibid. Also prof khan notes
515
G.C.V. Subbarao (2001)Jurisprudence and Legal Theory p 4
516
Subaro opcit p 5

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RELATIONSHIP OF LAW AND SOCIAL SCIENCES
It should be known that in early times jurisprudence was seen to involve only natural
science how ever as times went on some divisions were made and jurisprudence was
taken to involve natural science and social science(matters pertaining to human
beings). This did not end there were sub-divisions made such as: sociology,
Economics, history, psychology and ethics. All these were taken to be law. The only
thing that remained in dispute was how these sub-divisions were related to law

JURISPRUDENCE AND PSYCHOLOGY

The term psychology reflects on the science of mind and behaviour517 and thus no
human science can be discussed properly with out a thorough knowledge of the
human mind and here the close relationship with jurisprudence. Thus it is very
important at the time of making law to look at the mind of the person to whom it is
going to be applied. For example inn the study of criminal jurisprudence great
emphasis is put in the study of the psychological principle s in order to understand the
behind crime.
There is a school of jurists which holds the view that the sanction behind all laws is a
psychological one. Study of negligence, intention motive and other cognate mental
conditions forms part of both jurisprudence and psychology.

JURISPRUDENCE AND HISTORY

History is the study of past ideas. Some jurists have studied the past ideas to know
what was there which is relevant. They say law has always depended on the past
.They look at what was the past of the people, their customs, usages, institutions. It’s
their opinion that law can not break itself from the past .These jurists came to form
their school of jurisprudence .thus history furnishes the background in which a correct
idea of jurisprudence can be realised.

JURISPRUDENCE AND POLITICS

Politics refers to the principles governing governmental organisation .it is a particular

science of government. it deals with matters like what type of institutions we should
have so as to run our, state or society .thus it can be said politics deal with the
principles governing governmental organisation. however politics and jurisprudence
have in today’s world been very much related to each other, in matters such as type of
executive that a state should be in a state ,kind of government,judiciary,and legislature
we should have. The relationship between political organisation and government is a
far as administration is concerned makes jurisprudence to take shape.
Though there is this relationship the jurisprudence and politics the law usually can not
control the political powers only its exercise can be controlled and it can therefore be
said that jurisprudence shapes the politics basing on the opinion of the people.

517
mahajan opcit p 18

247
JURISPRUDENCE AND SOCIOLOGY

Sociology is a science of society. It deals with general matters of the society or

matters of rules of conduct pertaining to people in general. It is a science because as
science the application of reason on maters of human kind to prove whether they are
true or false similarly sociology as a science of society focuses on matters pertaining
mutual relationship between jurisprudence and sociology as international law has a
relationship with society society as law deals with the needs of the society.
Thus sociological jurisprudence is an approach of one the needs of the society. it is
said that the needs changes as there is a change in institutions such as family and
there fore the needs of the society and the application of law is what creates the
relationship of law and society. Thus such approach has been given name sociology

Another relationship between jurisprudence and sociology depends on the

specification of institutions. That is specific area of jurisprudence.Forexample how
the society has developed reveal institution such as family. This it can be summarised
by saying that it is a relationship between law and development of the institutions
Thus it can be said that the relationship between the two aspects can be categorised as
to the needs of the society and the other is on development of institutional in the
society all this has to be related to the effect of the law

JURISPRUDENCE AND ECONOMICS

Now turning into the relationship between jurisprudence and Economics it could be
said that Economics is a science of wealth and state and. jurisprudence a science of
law.Thse two aspects (economics & jurisprudence) are very much related for example
economic deals with the wealth of the state, it also deals with restrictions as to wealth
which a person should have; control of wealth usually stipulated that there should be
equitable distribution of wealth thus it prohibits persons from accumulating wealth.
Though this this how states conflicts the wealth of a persons it does not take the
wealth of person.
There fore it could be said that though economic problems arise daily it’s the duty if
the law to tackle problems

3.0 CONCLUSION
It can there fore be said that previously before there was a division in jurisprudence to
include sociology the jurisprudence could be related to natural law only. However the
divisions occurred and jurisprudence could now be linked to not only natural law but
to sociology and further divisions were made in relation to sociology such as
economic politic psychological among other divisions. With each branch of sociology
being related in a special manner.

QUESTION

What different have you noticed in your study of jurisprudence between the
original concept of jurisprudence provided by the ancient philosophers and
present day concept of jurisprudence as is understood by the philosophers of the
present day.

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249
OUTLINE

1.0 INTRODUCTION
1.1 The Concept of Jurisprudence.
1.2 The overview of the ideas of Natural Science and Social Science.
1.3 Schools of Jurisprudence.

2.0 MAIN BODY

2.1 Philosophical School of Jurisprudence.
2.2 Historical School of Jurisprudence.
2.3 Analytical School of Jurisprudence.
2.4 Sociological School of Jurisprudence.
2.4.1 Realist School
2.4.2 Purposes of the law
2.4.3 The making of the law.
2.5 What are the major differences between the original concept of
jurisprudence and the present concept from the above observation?

3.0 CONCLUSION

4.0 BIBLIOGRAPHY

1.0 INTRODUCTION

1.1 The Concept of Jurisprudence.

The word Jurisprudence is derived from two Latin expressions ‘juris’ which means
law and ‘prudence’ which means knowledge. This concept has been subjected to four
meanings.

To start with the first meaning, jurisprudence is defined as the knowledge of law in
the widest possible sense. One of the Roman Jurists Ulpian says Jurisprudence is
observation of things human and divine, the knowledge at just and unjust518.The other
meaning of jurisprudence is the division of legal science into general principles of law
and general principles of legal system.

In certain legal systems, the word jurisprudence is used for the decision of the courts,
for instance the jurisprudence of the International Court of Justice [ICJ] which means
the decision of the International court of justice in France there is jurisprudence of
counsel of court.

Lastly jurisprudence is defined to mean certain legal system, thus the word
jurisprudence is used in place at the word law. The word jurisprudence therefore
appears where the word law could appear for instances in England there are Equity
Jurisprudence which means the law of equity medical or mental jurisprudence and
industrial jurisprudence.

518
V.G.C. Subbarao, 2001, Jurisprudence and Legal Theory, 9th Edn p.4

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Having seen the work vested on the understanding the term jurisprudence, different
jurists have worked on the meaning which is to the effect that jurisprudence refers to
the general principles of law and general principles of legal system, From this effect
ideas have been given by Salmond, Austin, Holland and Roscoe Pound in their
endeavour to expound the concept of jurisprudence. From the ideas of these jurists the
concept of jurisprudence is viewed on different perspectives.

According to Salmond, Jurisprudence is the science of the first principles of civil

law, the nature of study is like science meaning that are observes a thing aiming at
knowing that why it is like this. For Salmond first principle means basic or
fundamental principle. Jurisprudence thus deals with particular specie of law viz civil
law or law of the state.

Austin refers jurisprudence as the philosophy of positive law. By positive law or jus
positivum he meant the law laid down by apolitical superior for controlling the
conduct of those subjects to his authority. Positive law as used by Austin is thus
identical with civil law519. Further the term positive law means the law in human
sovereign or the law pertaining to a political society. The term philosophy means
belief of persons in the things.

For Holland jurisprudence is defined as formal science of positive law. Formal

science applicable to general matters not applicable to material science. Jurisprudence
is a formal science as distinguished from material science, is one which deals not with
concrete details but the fundamental principles underlying them.

Roscoe Pound put his efforts to give his ideas on how he understands the word
jurisprudence. He stated that jurisprudence is the systematic arrangement or study if
rules or laws administered in the courts of law.

1.2 The Overview of the Ideas of Natural Science and Social Science.
Initially especially during the Ulpian era knowledge was not divided. It meant that
everything in the universe was jurisprudence. The division of jurisprudence later led
to natural science and social science. Jurisprudence falls in the social science. The
situation prevailed hitherto was that jurisprudence was understood in the context of
religion .The law was found in nature through the institution of religion. The concept
was expounded thus some viewed jurisprudence in the aspect of ethics, belief and
morality. This concluded the view that jurisprudence was the outcome of ethics
religion belief morality and philosophy.

In the 19th century, these developments suffered draw backs thus jurisprudence was
approached in connection to sanction, duties and justice. These were the ideas of
positivists like Bentham, Austin, and Salmond. In the 20th century particularly in 1945
Law has to be understood in the context of the whole society. The famous American
writer introduced the idea of Legal theory,

519
Ibid p.5

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1.3 School of Jurisprudence

Persons holding the same opinion are called the school of jurisprudence. In the history
of man there were two schools of jurisprudence then as the time went on other school
of jurisprudence emerged. In the 20th century different school coexist, thus no one can
claim that he belongs to a certain school of thought of jurisprudence. Because of the
freedom of the conscience, freedom of minds people fall in different schools of
jurisprudence

2.0 MAINBODY

As the statement of the question reveals there are ancient philosophers and the
modern philosophers. Basing on the above mentioned school of jurisprudence
philosophical school of jurisprudence, historical school of jurisprudence, and
analytical school of jurisprudence provides the ideas which ca be taken to be ancient
when compared to the ideas propounded by sociological school of jurisprudence .It
has to be noted however that within the particular school of jurisprudence there
existed ancient philosophers for instance the philosophical school of jurisprudence is
also said to be the modern school of jurisprudence.

2.1 Philosophical School of Jurisprudence

In this school of jurisprudence it is said to have comprised of the ancient philosophers

especially from the oldest statutes such as Greece and Roman Empire. In this school
however it is said to be part of the modern thought of jurisprudence.

In this school of jurisprudence different authors gave ideas or religion, morality and
belief .When there is amalgamation/collection of these several ideas then
philosophical school of jurisprudence the concern is on the purpose of law.

Being the ancient school of jurisprudence the philosophers of this school covered
ideas which have left impact on religion, morality and administration of justice. The
views of these philosophers further affected the political system especially on the
aspect of natural justice. The notable impacts are the great revolution of 1688 in
Britain, which resulted from the idea that man was born free. The 1781 France
revolution and 1794 American revolution, all these revolutions were the result of
ideas of liberty, and freedom o conscience

The philosophers in this school of jurisprudence had then contribution s and mostly
cemented the ideas of natural rights. They stated it differently, some referred natural
law as liberty other say justice and other say freedom. The important thing by these
philosophers is that their ideas based on the nature.

Formally the philosophers under philosophical school of jurisprudence based on

nature. The Greece philosophers came out with the idea that, in nature there is a
certain order hence order is possible if one follow what have adopted. There are
certain things established by nature, and then the study has to be done on things made
on nature Man being the part of the nature he has to follow what is made by nature.
Zeno stated that the universe is governed by reason, reason established order hence
the idea was developed that law based on reason is law otherwise is not law. Later it

252
was added by Greek that if one adopts law based on reason he can develop justice.
From this philosophy therefore, the idea was nature and where nature is given to
everybody, one has to follow the order and if the law is from nature and reason that
justice would be attained. Plato and Aristotle cemented the ideas of Zeno.

In the Roman Empire Marcus Cicero propounded the idea of the natural law Marcus
Cicero stated that law must be according to the nature of man. Later he developed the
idea of reason. On top of the idea based on reason Cicero said that law has to be the
same in Rome and Arthern. What is according to reason is according to nature and
that is the good society. According to Marcus Cicero Roman Legal system is divided
into three different kinds of law. Jus civil, Jus gentium and Jus naturale.

The former philosopher on the natural law based their ideas on the nature as the
source of everything and the reason. There emerged other philosophers on this school
of jurisprudence who came out with their ideas such as St Thomas Acquinas who is
the philosopher of the medieval ages who believed on the Roman church. This
philosopher supported natural law but gave hegemony to the church stating that
church is more superior to the state. St. Thomas Aquinas stated that whatever church
has said state has to abide to it. Being the naturalist in his support of the philosophy of
the church he propounded four kinds of law in which in each one natural law is
connected.

The first is eternal law / les external this is beyond human scrutiny known to the
creator only. The Second lex divina/ divine law understand what nature has done to
the universe found the scriptures. The third lex naturale. This is an aspect of lex
divine law. The last one is lex humane man found the law which is the for human.
The idea of Aquinas however gave liberty to the King basing on the fourth kind of
law. The fourth kind of law was later exploited by the positivists. Hence became the
gap for the idea of human forming law.

From the philosophy of St. Thomas Aquinas therefore, the idea of natural law
confined mostly on the religion that the philosophers considered the authority of the
church over the state. Natural law here was related to the religion Due to the fact that
natural law in the medieval ages was connected to the religion.

There was the emergence of the idea of the secularisation of natural law hence
rational natural law. Law based on reasons. Hugo Gracious stated that if there are no
scriptures man knows how to conduct with each other. In his book War Peace, Hugo
Gracious said even if God existed or not there should be a way of dealing with each
other. This school of jurisprudence therefore experienced changes from the
philosophy of hegemony of religion by Thomas Aquinas and secularisation of natural
law by Hugo Gracious showed the system of natural law may be divided from the
social nature of mans520.

The other group of philosophers in the natural law school of philosophers in the
natural law school of jurisprudence were Thomas Hobbes, John Locke and Jacques
Rousseau. These philosophers placed more emphasis on the right of individuals
against nature and sovereign. For Thomas Hobbes who is also referred to as

520
Mahajan (2001) p. 590

253
contractarian stated that before state was established people were in the state/
condition of nature in their natural surrounding, each individual had his right being
given to him by nature. Because there was no organisation each individual was free to
use his power thus there was no order in the society. Each one used his power fighting
with his fellow life was shot life was British life was nasty.

There came certain understanding agreement among the people themselves which is
called the social contract where by the people agreed whatever natural they have they
have surrendered it to the King, hence made the King sovereign. Whatever the state
said therefore was the commandment. Law became what the state said changes were
brought by John Locke he agreed with idea of Thomas Hobbes that there was the
surrender of the right of individual to the state but differed on the point that all rights
were surrendered. For John Locke right to liberty, right to equality, and right to p-
property was not surrendered.

The idea of Jacques Rousseau was that he had agreed to the idea of John Locke but
added that even the right retained according to Locke could be surrendered to the state
where there is the general will. According to Jacques Rousseau said that the sovereign
could be meaningless. If state wanted to do something for the social need but could
not sacrifice some right. For him general will means the will containing the will of
the individuals as well as the will of the state.

The overview on the philosophers of natural law school of jurisprudence reveal that
the ideas of the philosophers based on the natural law and the former jurists relied on
the nature and reason. Later dominance was given to the religion by St. Thomas
Aquinas but as was seen above Hugo Gracious based his thoughts that there could be
natural law even if there is no God. This was the expansion of these ideas. For the last
group of Hobbes, Locke and Rousseau emphasised on the right of the individual and
nature. It has to be understood that philosophical school of jurisprudence has many
philosophers and each group came with the improvement on their predecessor ideas.
There were other ideas like those given by Immanuel Kant and Hegel all these
improved the work of the former philosophers.

It has to be borne in our mind that the philosophical school of jurisprudence

philosophy was also supported by the philosophers believing on analytical school of
jurisprudence for instance, Stamler and Radbruch with their philosophy of inner
morality contributed much on the expansion of these philosophies. These
philosophers who were Germans in defiance to the government of Nazi stated that
positive law must be the law which considers inner morality. Therefore these
philosophers contributed to the ideas of natural school of jurisprudence.

In the 19th century natural law school of jurisprudence suffered setbacks thereafter the
other school of jurisprudence emerged namely historical school of jurisprudence and
the analytical school of jurisprudence. The philosophers of these schools of
jurisprudence opposed natural law stating that it is quite arbitrary, imaginary and
fanciful. It is propagating things which can not be achieved.

These other schools of jurisprudence which came after the philosophical school of
jurisprudence stated that the former caused injustice to people as it frustrated the very
ideas it created for instance the ideas of liberty natural justice and freedom. It crushes

254
the rights of other persons in some countries. Example is given of the country of
France which benefited by these ideas of freedom, justice, and equality but attacked
other countries and misused the power attained by the virtue of natural law. The
invasion of France to Germany and Poland was bad to natural law.

2.2 Historical School of Jurisprudence

Another group of philosopher who were taken to have possessed ancient philosophy
fall in the historical school of jurisprudence. Fredric Savigny said law has an
evolution it is not made it is to be discovered. Savigny added that law is there in the
life institution behaviour language and the culture of the people hence law is related to
the past of the people. Law can be discovered from the past behaviour of the people.
Whatever the past generation has done the society wishes to continue it.

Savigny gave a notable statement that law arises from the consciousness or
awareness of the people. He used the Germany word volksgeist. Savigny came with
this idea which is different from the natural law because of the following reasons.

First Roman law became popular in Europe. Many countries adopted Roman law.
France, Poland Netherlands, Germany also adopted Roman law. Second France
adopted a new system of law when Napoleon was a ruler through a process of
codification. The system was known as Code Napoleon, denoting from the Roman
law [ there was Code Napoleon in civil and criminal law].

Third France attacked Germany and there was the division of Germany as state and
France introduced French law in Germany. Roman law was to be deviated in
Germany hence Germans were to follow French law so law in Germany must be
codified. Thibout was the French who took the task of codifying French law in
Germany. At this time Savigny was a professor in the Germany University and
opposed the French law added that law has to have connection with the past. This idea
received popularity in Germany and Thibout declined from codifying French law in t
Germany because it had no connection with the past of Germany.

Sir, Henry Maine also was the exponent of Historical School of Jurisprudence.
Maine’s philosophy was concerned with the question as what are the pattern /
direction/ trend/ manner in which law in the society developed. The contribution of
his philosophy is that unlike Savigny who was concerned with one country alone
(Germany) Maine was not concerned with his country alone that is England.

Another point is that Maine distinguished legal history from historical jurisprudence.
For him the former was concerned with the description of the past while the latter is
concerned with the science on how law has moved from the palace of king to palace
of nobles then to legislature. Maine had studied legal system of England Greece Egypt
Roman India German and Celtic.He said if one looks at all legal systems there is
uniform pattern.

That law has come from God – Goddess of justice in Greece. The source of law is
divine law. The king merely is concerned with the execution of law.

255
Then noble makes the law by their judgement when followed be come the custom of
the people. Later nobles are displaced and the law falls in few persons hence there is
codes, in India there is Manus Code, Keltic code in Greece and the code of
Hammurab in Egypt.

According to Maine that is the place where some societies ended and could not go
further stages if the study of the law, he called them static societies. But the society
which extended their studies further are termed as progressive societies. Sir Henry
Maine said that the symbol of progressive society is evidenced by three evidences
namely legal fiction, Equity and legislation.

Talking on the progressive society Sir Henry Maine said the following;
“…the progressive societies have developed through legal fiction equity
and legislation. The movement of progressive society hitherto has been
from status to contract”.

He said there has been movements of these societies; institution of families. Family is
the first institution headed by the Pater Famliers who governs other members of the
family. It is the status which binds the other persons. The other persons are not free. It
is the status which counts rights and duties in the clan tribal and state. Maine added
that the conditions have changed. It is not the will of one person which comes but the
will of each individual, then here the person can enter into a contract.

Therefore within Historical School of jurisprudence itself the ideas of Savigny were
confined in the legal system of Germany while the ideas of Maine extended to
different legal systems, further Maine came with the distinction between Legal
Theory and Historical Jurisprudence. The connection of jurisprudence to the past
and habits as well as the culture of the people also provides for greater distinction
between historical jurisprudence and the natural law school of jurisprudence.

2.3 Analytical School of Jurisprudence.

There are philosophers who believed that law has to be analysed. They argued that
analysis of legal system results to recognition of certain rules. This school of
jurisprudence developed in the 19th century. Jeremy Bentham is the founder of
analytical school of law, he for the first time, utilised the analytical method of natural
law school.

It was Austin who excluded absolutely from his analysis the abstract thinking and he
is known as the father of the analytical school of jurisprudence521. Analytical jurists
rejected the ideas of reason, morality or human will which were very prominent in the
eighteen century. To analytical jurists these ideas were abstract.

They further argued that the analysis of the law was to be directed towards the
positive law thereafter came with the idea of the concept of law or legal concept.
Analysis of shows that three is law concerned with government individual rights and
foreigners. Analysis of legal system results to recognition of certain rules purposes
objects institutions and functions. The person conducts analysis, by making clear

521
S.R, Mynemi, Jurisprudence (Legal Theory) 2nd edn p. 423

256
division of law example laws concerned courts and laws concerned with individual,
rights.

The ideas of positive law of jurisprudence were firstly stated by Bentham who said
that law is law that is positive, well expressed in the statute. His ideas were not
published during his life time. He was the first person who condemned natural law as
nothing saying that the ideas are fanciful ideas/ childish ideas. He is the person who
said what should be the law which legislature must make positive law must address
issues of society dealing with concrete matters. He is known for his philosophy of
Utilitarianism.

On his concept of utilitarianism Bentham preferred the society which has the law of
the greatest happiness of the greatest number. He stated ruthless idea of state is not
law. In analysing the concept of happiness he said nature has created the man under
the control of Pleasure and Pain. He stated that if the law secured pleasure there is the
greatest happiness of the greatest number. In analysing pleasure Bentham said there is
pleasure if people are wealth, if economic is up, if people have knowledge, if they
know what is happening in the nature. Affection/health/safety/richness gives people
pleasure.

Pains, people do not like to suffer from pain because of prejudice illness disease
disaffection. Therefore Bentham stated that where there is abundance, equality
subsistence and security will make people to have the greatest happiness of the
greatest number.

Bentham further suggested changes for the existing law thus was taken as the law
reformer, he said English society has common law the judges common law was not
favoured by Bentham saying that common law at the certain time is in favour of
natural law. He further condemned Law of Equity as the one in favour of common
law. He wanted reform of English Legal System favouring law made by the
sovereign. He wanted the reform of the substantive and the procedural law also the
changes of the civil and the penal law. This made him the law reformer or the greatest
reformer.

Austin is the disciple of Bentham. He analysed English legal system, in his analysis
he found that in all legal system there are certain ideas which are common thus he is
known for his ideas of basic concept of law. These concepts are part of every branch
of law. According to Austin there are two types of laws; laws made by God and laws
made by man. He found no relationship between law made by man and the law made
by the God. As the other positivist Austin condemned the ideas of natural law.

For Austin law is a fact on which evidence can be formed. In natural law evidence can
not be subjected to examination or proof. Thus because Austin was concerned with
fact not arbitrary idea he based on the analytical school of jurisprudence as it is based
on the facts .In his description of the positive law Austin stated that there no
relationship between law and morality adding that law is made by man; the man who
is making the law is superior to the one who has to obey the law; and in the superior
inferior relationship there the wish desired which has binding force. This desire is the
command in the in positive law.

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It is from these features that Austin came with three elements of the positive law
namely command, duties and sanction. The theories of Austin on the concept of law
have made him unpopular hence criticised by the other scholars of positive school of
jurisprudence such as Herbert Lionel Adolphons Hart and the German positivist
known as Hans Kelsen.

Prof. Hart on his the concept of law criticized Austin’s theory that Austin defines law
in terms of command. The notion of command is generally under stood I such contest
as the military where there is a hierarchical arrangement of competence and
prerogative and where command go from higher to cover level according to hart
Austin’s actual model is more like a care of a gun man making a demand backed by a
threat than a sergeant giving an order to a subordinate. Hart observes that law is not
the gun man situation522.

2.4 Sociological School

The sociological school of jurisprudence emerged as a result of synthesis of various

juristic thoughts. The exponents of this school treat law as a social phenomenon.
According to them law is a social function an expression of a human society
concerning the external relations of its individual members. The jurists should
concentrate his attention not so much in individuals and the abstract right a ‘‘willing
agent ‘‘as on the social purposes and interest served by law.

Montesquieu [1689-1755] is the forerunner of the sociological method in

jurisprudence. In his work ‘’the spirit of law’’ he declared laws should be
determine by a nations characterizes so that they should be in a relation to the climate
of each country to the quality of each soil to the principal occupations of the natives
whether to the husbandmen huntsmen or shepherds. They should have a relation to the
degree of liberty which constitution will bear.

Auguste Comte [1798- 1857] was considered to be the founder of sociology.

According to him society like any other organism can progress when it is guided by
scientific principles. There are other jurists who have given their contribution in
sociological school of jurisprudence starting with Rudolf Von Ihering. According to
him the purpose of law is the protection of interests he defined interest as the pursuit
of pleasure and avoidance of pain. Due to this definition his theory is called social
Unitarianism. Also he has given the theory of punishment is a means to social end. It
should not be based on retributive or compensatory ground.

Ihering’s theory has been criticized for two reasons. First he suggests that his function
of the law is to reconcile the conflicting interests but he has not given any solution for
it. Secondly Ihering theory of purpose is that law in fact protects will and not the
purpose.
Karl Kewlyllin Is another sociological jurist who talks about social solidarity means
people in the society depends on each other. Their life is interdependent. Therefore
the purpose of law is to enable them to integrate in society that is solidarity. The law

522
Ibid pg 435

258
must think of living unity interdependence integration in the society. If there is no
solidarity society will disintegrate.

Apart from the above jurists there are other jurists who have given contribution on
sociological school of jurisprudence. These are like, Roscoe Pound, and Eugene
Ehrlich.

2.4.1 Realistic School

In America sociological jurisprudence has developed an extreme wing under the name
of realistic school. The sociological method has brought legal science into intimate
relation with the fact of social life and made jurists recognize law as a product of
social jurist. Realism denounces traditional legal actually do in reaching the final in
the case before them. Realists define law as generalized prediction of what the court
will do.

Llewellyn says that realism is not a school of jurisprudence at best it may be called a
branch of sociological jurisprudence. That’s why sometimes it is called the left wing
of the functional school.

Roscoe pound has defined realism as fidelity to nature accurate recording of things as
they are as constructed with things as they are imagined to be or wished to be as one
feels they ought to be.

The realist movement concentrated its attention on the role of the judges in the
interpretation of law. Its proponents regarded judges as moulders of the law who have
greater freedom of choices in coming into decisions than it is usually acknowledged
by the exponents of analytical jurisprudence. So the realistic school insists upon a
study of the personality of the judges to forecast with greater forecast with greatest
accuracy probable judicial actions in a given fact situation.

The main characteristic of the realist jurisprudence as stated by Good Hart are

 The realists believe that there can be no definiteness above law as its
predictability depends upon the set of facts which are before the court
for decision.

 They do not support the formal logical and conceptual approach to law
because the court when deciding a case reaches to a decision on
emotive rather than legal ground.

 They lay greater stress on psychological approach to the proper

understanding of the law as it is concerned with the human behaviour
and convictions of the lawyers and judges.

 Realists are opposed to the value of legal terminology for they consider
it as facit method of suppressing uncertainty of law.

 The realist school prefers to evaluate any part of the law in terms of its
effects.

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Among the jurists of realism school in America mentioned has to be made first.
Oliver Holmes. According to him he made a statement that the life of law is not logic
but experience. According to him law is what courts d not what they say until court
has passed judgments on certain facts there is no law on the subject yet in existence.

This particular assertion of Holmes was evidential from the events of the legal history
of England. The first source of English law was common law made by judges. The
second important source of England law was equity which was also made by judges.
It is these judges who moulded the law to meet the requirements of English society.

The third source of England law was the statutes of general applications. These were
also interpreted by judges, if they declare that a certain provision is invalid then it will
be the end of the statute.

Other American jurists of realism school are Benjamin Cordozo, Jerome Frank and
Roscoe Pound. Apart from American jurists on the concept of realism the other group
of jurists following the same idea about the law belonged to the Scandinavian
countries.

The lender of the Scandinavian jurists is Hegerstrom. He may be regarded as the

founder of the realism in Sweden. According to him there are no such things as
goodness and badness in the world the words represents simply emotional attitudes of
approval and disapproval respectively towards certain facts and situations. He also
condemned that the legal concept of positivist such as concept of duty, right
obligation and justice. Other Scandinavian jurists are Wilhelm Lundstedt, Oliver
Crooner and Alf Cross.

2.4.2 Purposes of Law

Philosophers who belonged to sociological school believes that law has an intimate
relation with the society as a whole that is law represents the need of the society, law
is after interest of the people, therefore has a certain interest to promote in a society.

Then they believe the interest is proper criteria to determine whether or not there is a
law. In this regard the difference between sociological school and analytical is the fact
that sociological school believes that law is after serving the interest of the society at
large for the welfare of all523 as Rudolf Von Ihering says law has a social purpose
while analytical school focused on individual interests as H. L. A Hart says, law made
by man to another man, same view held by john Austin.

They believed that if law was made to serve individual interest there will be chaos as
in nature every individual has needs wants and desires to have certain things and if
law allows every one through his own means to satisfy his needs there will be

523
As Karl Llewellyn says individuals as his own interest to pursue and public has its own interest to
pursue. But in order to avoid chaos and bring about the social solidarity ‘’ the individual interest and
public interest should reconcile at a certain point so as to promote social interest , this should be the
main purpose of the law

260
conflicts, thus law must assume social purpose. State must take responsibility to
protect the interest of the people through rewarding for good deeds and coercion as by
Rudolf.

2.4.3 Scope of the Study of Law

Realists believe that law should not be studied only on point of view of an abstract
idea associated with the concept of law such as justice, right duties. They wanted law
to be studied from the functional point of view. This view is different from the views
of positivists such as Austin whose philosophy focused on the fact that law should
give rights and duties to people. The duty which comes from expressed desire of the
superior force which is in form of the command and if not adhered to attract
punishment which he calls sanction.

2.4.4 The Making of the Law

Realists believe that the function of making the law is for the judges and not for
a superior being/ Sovereign. This is because judges and the people who through
interpretation of the rules knows what the law is in consideration of various
factors such as social economic and political as Sir Oliver Wendell Holmes said
life of law has never been logic but experience by this he meant that a rule
however logical it may be it is not law unless judges say that it is applicable to
the given facts of the case.

Through the legal history of England realists belies that the role of law making
is of judges that first source of English law (common law) was made by judges
who said whether or not customs can be enforced. The second source of English
law (equity) was also made by judges to cure the mischief found in common law
rules to fit the requirements of the changing society. The third source (statutes)
also was interpreted by judges and if they declare that a certain provision is
invalid it will be the end of the statute.

On the other hand analytical school believed that the only institution vested with
the power of making the laws is the sovereign524 and no person can declare such
a rule as invalid or enforceable not even the judges interpreting it. The judges
are to apply the rules as they are as Jeremy Bentham said King can do no wrong.
The same with Austin who propounded that a positive law is the one made by a
superior being expressing wish a desire in a form of a command towards inferior
being.

2.5 What are the major differences between the original concept of
jurisprudence and the present concept from the above observation?

524
See Cavendish pg 40-42

261
While the ancient schools of jurisprudence did not connect the source of law and
society or the concept of jurisprudence with the society, on the other hand, the
present concept of jurisprudence maintain that jurisprudence has a connection
with the society.

Again, apart from other ancient schools of jurisprudence do accept neither

nature, command, history, nor the past it deals with social matters as happening
in within the society for the interest of the society. Law in present times is
expressed in the interest of the people; and such interest is what in modern times
is known as a school of social interest/social purpose of law.

While in ancient times law was regarded as one serving interest of individuals,
at present times the position is that if the law does not serve the social purpose
of the society it is not recognised as the law.

Different from other ancient schools, the school of jurisprudence at present time,
look upon the concept of law as social function, an expression of human society
concerning the external relations of its individual members. that is the jurist
should concentrate his attention not so much on individuals and abstract right as
‘willing agent ‘ as on a social purposes and interests served by law. Also
different from other ancient schools, sociological jurisprudence has pointed law
towards social justice and has assumed that law must seek to attain certain ends.
On this Roscoe pound says;
“The sociological movement in jurisprudence is movement for
pragmatism as a philosophy of law… for putting the human factor in the
central place and relegating logic to its true position as an instrument”.

It is further pointed out that the present time concept of jurisprudence, different
from other ancient concept, it recognises the conflicting interest of individuals
against those of the society. but the present time concept went further in
suggesting some measures of converging such interests for the some purpose,
operation which is brought about and commerce, society and the state result
from it.

Rudolph von Ihering says that the content of law not only may but must be
infinitively various. He adds to it that purpose is a relative standard and hence
law must adopt its regulations to the varying conditions of the people, according
to their degree of their civilisation and needs of the time. This was different
from the idea for instance of natural law which was giving certain permanent
and universally valid contents of law. Generally under the present concept, the
individual is enabled to desire the common interest in addition to his own.

3.0 CONCLUSUON
To conclude, generally, it has to be pointed out that despite the fact that there are
such differences in as far as these schools are concerned yet the study of all
these theories enables students studying legal concepts to widen up their
knowledge in as far as the foundation of legal concepts are concerned and in fact
the student will be able to be in a position of arguing for or against certain legal
position which is laid down by various eminent legal scholars or philosophers
particularly in showing which side of the argument is much more accurate and

262
 relevant to present time. The study of philosophical school of jurisprudence is
still eminent as it is amongst the modern school of jurisprudence. What is of
paramount to be understood by the scholar is that the certain jurisdiction can be
claim to be their follower of the school of jurisprudence of paramount
importance is that under every school of jurisprudence the hegemony is given to
a particular school of thought.

Qn:
Discuss the legal status of the following;
i) Lower animals
ii) Unborn person
iii) Dead person
iv) The state
OUTLINE

1.0 INTRODUCTION
The concept of person.
2.0 MAIN BODY
Discussion on the legal status of the following Concepts
- Lower animals
- Unborn person
- Dead person
- The state.
3.0 CONCLUSION

1.0 INTRODUCTION
The concept of person.

The word person definitely refers to human being. However the difficult in
jurisprudence is that in certain situations in law human beings are not considered as
person merely because they are human beings. The word person is derived from the
Latin word persona which according to Mahajan525 it owes its origin from mask, later
it was used to denote the part played by man in life. As the time went on the concept
was used as the man who played the part. This meaning kept on changing but lastly it
was used to denote a being who is capable of possessing rights and duties.

According to Salmond a person is any being whom the law regards as capable of
rights or duties. Any being that is so capable is a person, whether a human being or no
being that is not so capable is a person, even though he being a person. Dias on
jurisprudence said the word person has different shapes of meaning because they do

525
V. D. Mahajan, (2001), Jurisprudence and Legal Theory p. 377

263
certain functions, having certain objects, and having certain use. Where there is
function, object and use then there is a person

The further discussion on the concept of person is reiterated under the following
headings.

That word person has function of representing a person. This originally was taken in
the Roman to mean the person who performs drama i.e. actor/character representing
another. In this respect therefore the term persona was used. Even the Diplomat is the
persona.

Another aspect is on the necessity. Here the focus was on the various parts which in
the background played role in forming a person. Law has to recognise a particular
person or institution because of the necessity. A dead person is regarded as a person
for necessity i.e. wishes, likewise in England child not yet born is a person because of
necessity.

Funding of certain body/institution money to be kept for person company law has
recognised it as a person. Corporate body are also recognised in law as person. With
these headings the concept of person is recognised in the wider sense in as far as
jurisprudence is concerned.

However it has to be borne in our minds that there are two kinds of person namely
natural person and legal person. In this question which demands the thorough
discussion on the concepts of lower person, unborn child dead persons and the state it
has to be understood that the former three concepts fall in the ambit of the natural
person while the latter fall in the legal person. Therefore persons means not only
human beings but also association such as corporations, companies, trade unions,
friendly societies, institutions like universities, hospitals, objects like an idol as well.
Thus, a person is an entity to which rights and duties are attributed.526

2.0 MAIN BODY

2.1 The legal status of the lower animals.

All beings borne in nature are animals. They are called animals because of certain
reasons as there are economical social and political animals. Higher animals are
human beings. Lower animals are not in the category of man but they are living.
As far as the legal status of lower animals the jurists are divided in two groups those
who support that lower animals are persons and the group which states that lower
animals are not persons.

In the ancient legal system lower animals possessed liabilities to some offences.
Keaton writes that in Greek law, we hear of animals tried of offences to human
beings, and obviously, therefore, they are considered capable of having duties and
rights. Even in the Middle Ages trials of animals continued.

526
S. R. Myneni, (2004), Jurisprudence (Legal Theory) p. 242

264
Modern legal systems look at animals as possessing rights and duties. There are
movements in the world for animals’ rights. These movements aimed at treating both
animals and human beings equally.

Legislations in modern legal system have been enacted to protect animals against
cruelty. There is a certain life which is protected in these legislations for instance the
Wildlife Conservation Act aimed at protecting the lives of the wild animals as far as
their safety is concerned.

The maintenance of the fact that the lower animal poses rights and duties is further
maintained by the fact that there has been the permission to establish charitable trust
for the lower animals. In the earlier time the status of the lower animals and the
formation of the charitable trust were there for human beings. The trust created for the
cats and kitten is now taken as proper for the protection of the lives of the kitten.
Likewise the charitable for the welfare of the animals such as cows, buffalos and
sheep is good charitable trust in so far as it leads to the advancement of religion.

Other jurists maintain that lower animals are incapable of legal rights and duties as
they maintain that law is made for men and allow no fellowship or bonds or
obligation between men and lower animals. The same group of jurists maintain that if
lower animals posses moral rights these rights are not recognised by law.

However despite the two schools of thoughts it is concluded that the status of lower
animals is that they possess rights taking into consideration of the fact that the cruelty
of animals is the criminal offence and the fact that the trust for the benefit of the
particular animals is as good and valid as a public and charitable trust.

2.2 The legal status of unborn child.

It is said in law that there is nothing in law to prevent a man from owning property
before is born. The person not yet born is treated by legal system in the world as a
person in a limited purposes namely; safety, property and health. Unborn person is
referred as a person who has not been born but who has been conceived by mother.

Mahajan527 writes a man may settle property upon his wife and the children to be born
to her. Even if he dies intestate, his unborn child will inherit his estate. The child in
the womb of his mother is for many purposes regarded by the legal fiction as already
born. In the words of Coke: “the law in many cases hath consideration of him in
respect of the apparent expectation of his birth”.

Wilful or negligent injury inflicted on a child in the womb by reason of which he dies
after having been born alive, amounts to murder or manslaughter.

The right of unborn child either proprietary or personal are all contingent on his birth
as a living human being. The legal personality attributed to him by way of
anticipation falls away ab initio if he never takes his place among the living. Abortion
and child destruction are crimes but such acts do not amount to murder or
manslaughter unless the child is born alive before he dies.

527
Ibid p 382

265
In short the law respects the legal status of unborn child on the place where such
unborn child will be considered on the aspects of safety, property and the health.
Likewise the point to be understood is that the legal status of unborn child is
recognised only where the said unborn child is born and dies and lastly the term
unborn child means the person not yet born but who has been conceived in her
mother’s womb.

2.3 The legal status of dead persons.

Approaches of different legal systems differ on their treatment of the dead person as
far as the legal status is concerned. It is taken that the personality of human being
commences its existence on birth and ceases to exist at death. With this view it is
stated that dead men are no longer persons in the eye of law528. They have laid down
their legal personality with their lives and they are destitute of rights and liabilities.
They have no rights because they have no interests.

However certain legal systems treat a person after death as a person if not for all
purposes then for certain purposes. It is said such treatment is not for all purposes
because they can not go and register a property. There are three things in respect of
which the anxieties of men extend even after death.

As far as his body is concerned others have to respect him. Dead body is respected;
disrespect to dead person is a tort. A living man is interested in the treatment to be
given to his own dead body.

The property of the dead man is also protected. The wish of the dead person that his
property be treated in the certain manner has to be respected. In this respect
Mahajan529 states that;
“For years after a man is dead, his hand may continue to regulate and
determine the enjoyment of the property which he owned while he was alive.
The law of succession permits the desires of the dead to regulate the actions of
the living. Moreover whatever he has left behind to be distributed as gifts or
given in charity will be respected by law and enforced according to his wishes
laid down in a proper document”.

The reputation of the dead person when affected after the death for instance
defamatory statement to his body is a tort. In this point it is stated that the libel against
the dead person is the misdemeanour- but only when its publication is truth an attack
upon the interest of the living person. The rights so attacked or so defended is in
reality not that of the dead, but that of his living descendants530.

2.4 The legal status of the state.

The status of the State as far as international law is concerned is that state is a legal
person. Recognition is one of the methods by which an international personality is
conferred on a State. It is stated that of all forms of human society the greatest is the
528
Mahajan op cit p 380. See also P. J. Fitzgerald, (1966), Salmond on Jurisprudence 12th edn p 301
529
Ibid p 382
530
Fitzgerald op cit 302.

266
State. In USA the State is recognised as a person. The federation is the person in law
and the same is the case with the States. Legal proceedings are started in the name of
“the State of New York” In India the Union of India is recognised as the legal person.

For a long time the law of England did not recognise the State as a corporation or a
legal person. That had been so due to Monarchical nature of Government which
recognised King/Queen as the sole corporate. According to Holland, the State is a
greater juristic person and enjoys many quasi rights against individual as is liable to
landed proprietor. Jethrrow Brown thinks that the recognition of the State as the
person is not understood by men either due to conservatism or poverty of ideals
arguing that the recognition of the State as the legal person is the matter of time hence
we have to wait.

3.0 CONCLUSION

To conclude generally the concept of the person can be understood narrowly by

confining on the ordinary meaning that person simply means human beings. However
the mind of lawyers and social scientists have to be widen in the broad sense and
accept that the concept of person if taken on the basis of what Dias stated has to be
taken bearing in the mind the use, object and the function which the person performs.
Likewise as far as the jurisprudence is concerned the categorisation of the persons has
to be realised on its widest sense thus while the archaic view had been that dead
persons, unborn child, lower animals and the State were not taken as persons the
discussions above have revealed the reality that these concepts have been availed
personality though with certain qualifications for instance whether dead person is a
person or not is restricted on certain aspects only such as reputation and property as
well as the body of the dead person.

Qn: Explain the distinction between a corporation aggregate and

corporate sole
OUTLINE

1.0 Introduction
2.0 The concept of corporation aggregate
3.0 The concept of corporation sole
4.0 The distinction between corporation aggregate and corporation sole
5.0 Conclusion

Introduction

A corporation generally can be defined as an artificial or fictitious person constituted

by the personification of a group or a series of individual. The individuals forming the
corpus of the corporation are called is members or precisely promoters or
shareholders of the company. Corporation can either be a business corporation or non
business corporation. The question given requires me to explain the distinction
between a corporation sole and corporation aggregate, in answering it shall I shall
give an explanation of what corporation sole and corporation aggregate is an
thereafter give out he distinction between the two concepts.

267
The Concept of Corporation Aggregate

It should be known that most of the corporation sole are Business Corporation. The
history of the corporation aggregate could be traced from the 17th century whereby in
1670 The East India Company became the first ever company formed. The
corporation was formed under a charter and it was to operate business overseas. The
charters also provided that it could sue or be sued. The charted companies were
thereafter formed under the said charter and they had to operate outside England. Now
these were the companies which on their formation a special procedure had to be
followed. Before that time business was conducted by individuals in their respective
capacity as sole traders or through partnership firms.

A corporation aggregate can be defined as a collection of individuals united into one

body, under a special denomination, having perpetual succession under an artificial
form and vested by the policy of the law with the capacity of acting in several respects
as an individual liberty of taking and granting property, of enjoying privileges and
immunities in common, and of expressing a variety of political right, more or the less
extensive, according to the design of its institution or the powers conferred upon it,
either at the time of its creation at any subsequently period of its existence531.

Thus it can be said hat a corporation aggregate constitutes of an incorporated body or

group of individuals who unite together to achieve a certain common interests. The
corporation aggregates can be of various kinds. These kinds of corporations are
important in law as they help in determination of disputes. For example today there
are a number of limited companies in the world. These companies in law are
recognised as persons with separate entity, and thus they can own property among
other thing which the law comes into operation in facilitating their operation.
Corporation sole

A corporation sole constitutes of a person succeeding another or an office held by a

person, which is of permanent nature, which performs certain function and has right
and duties and there is succession. It also means an incorporated series of successive
persons. This kind of a corporation has one member at a time. As other kinds of
corporation it has a perpetual succession. Some authors describe it as a body
corporation having perpetual succession. A cooperation sole is perpetual but there
may be and mostly are periods in the duration of corporation sole ,occurring
irregularly, in which there is vacancy or no one in existence in whom the corporation
resides and is visibly represented.

Example of corporation sole are offices of: the president, prime minister, attorney
general, minister of heath, auditor general among others. It can be said that all offices
which are there by virtue of representing a public interest then such is a corporate
sole.

After looking into the concept of corporate aggregate and corporation sole. I shall
now give the distinction between the two kinds of corporation.

531
Mahajan p 386

268
Distinction between a corporation sole aggregate and corporation sole

A corporation aggregate constitute of a group of persons who join together to achieve

a certain purpose. Thus in this kind of corporation comes into existence on instances
where there is a certain fixed number of persons as provided under the law in which it
is incorporated. While a corporation sole constitutes of a single person who in turn
represents the interest of others.

Another difference is that in corporate sole is an example of dual personality. This is

due to the fact that a person holding the office has one capacity as a person because he
is a human being and also another capacity as a person when holding the office. So in
the office the person can do certain matters on his individual capacity and also he can
do other things in the capacity of the office he is holding. This is not the true in
corporate aggregate because under this kind of corporation, a corporation operates as
a person independent of its members and hence no dual personality.

Also the corporation sole does not require seal while a corporation aggregate can act
or express its will only by a deed under common seal. Thus it can be said that a seal is
very important in corporation aggregate and thus a document executed without a seal
will not be recognised. This is because the existence of a common seal is evidence of
incorporation.

Not only that but also in the corporation aggregate the members who are called
shareholders do contribute to the capital of the company. This is achieved by buying
the shares or by guaranteeing while corporation sole the member is not required to
contribute as he is usually brought there by operation of law.

Further more the occupant of the office can acquire property for the benefit of his
successor. He can sue for injuries to the property while it is in the hands of his
predecessor. This is not true in the case of corporate aggregate. In corporation
aggregate the company exist as a separate entity capable to sue or be sued and thus no
other person can sue in case there is any default.

Another difference is that ha main purpose of corporation sole is to ensure continuity.

While a corporation aggregate main concern is to get interest.

Conclusion

Conclusively corporation, whether corporate aggregate or corporate sole, it has he

following features, that is a corporation in law has a different existence and
personality from its members, it also has capacity to enter into contract. Also a
corporations property is not the property of shareholders but of company. A
corporation survives to the last of its members it thus does not die with the death of
share holders. These features are similar in all the kinds of corporation.

Qn: Discuss the theories of legal right

269
 TABLE OF CONTENTS

1.0: INTRODUCTION
2.1: Understanding of the concept of right.
2.2: Kinds of rights
2.3: Ingredients of a legal right

2.0: MAIN BODY.

2.1: The Will Theory
2.2: Interest Theory

3.0: CONCLUSION.

REFERENCE:

1.0: INTRODUCTION
2.1: Understanding of the concept of right.
The term right has been defined by various jurists in various ways. Salmond defines it
in connection with the state where he says that right is that which is recognized and
protected by the state. It is argued that not every needs as to the satisfaction of a
particular individual constitutes a right. The right has to be protected by the law.

Other scholars like Austin and Holland define the term right in the light of the
interests of the law. Here interests refer to the demand or requirements of a certain
thing. In actual fact, interest refers to the relationship that is between the necessity and
the thing which can satisfy such a necessity. Austin says that right is an interest of one
person from another person for instance from an employee to an employer. He
therefore defines the term right in the light of the relationship between two persons.

However the jurists of the 20th century came up with new view on what is a right. For
instance, Roscoe Pound defined the term right through a summary of such definitions
given by other scholars where he observed that right is an interest protected and
recognized by law is a legal right; where there a claim, to do or not to do from A to B,
there is a right of a person; when A has a certain capacity recognized by the law to
alter the capacity of the other person, that is a right; that nature has given a person the
capacity to do something for himself and that gave rise to the natural rights orr human
rights or fundamental rights; that right refers to the system in which whatever is
referred as justice to a man is a right.

2.2: Kinds of rights

There are several kinds of rights and these include perfect and imperfect rights; right
in personam and right in rem; positive and negative rights; personal and pecuniary
rights; legal and equity rights; and jura in re allena and jura in re persona. However
the categories of rights can be condensed into two major categories, that is, rights in
the technical sense or legal rights532; and rights in a wider sense.

532
Also referred to as rights in strictu sensu

270
Legal rights are those which are found in a situation where there is a person to whom
the right belongs and the person to whom the right is exercised to. In this there must
be right and duty. Every legal right has a correlative or corresponding duty. On the
other hand there are some rights which reside within a person but not recognized by
the law. They do not provide for duty and therefore have no binding effect.

2.3: Ingredients of a legal right

A legal right must always reside in a certain person. It is owned by a person. He is the
owner of a legal right. A legal right must have a person against whom the right is
available. He is the person of incidence. It must always contain the subject matter. In
a legal right there is always certain thing to do and not to do a certain thing; It is either
positive or negative, and that a legal right must have a title.

2.0: MAIN BODY

There are several theories which explain the concept of a legal right. These theories
have been advocated by various scholars depending on the basis of their schools of
thought, that is, on the basis of natural law school of thought; positivist school of
thought; sociological school of thought and so on.

Generally, the major theories of legal right are the will theory and the interest theory.
The discussion of this paper will take into effect how scholars have expressed their
views with respect to the theories of legal right.

2.1: The Will Theory

The Chief exponents of this theory include Austin, Holland, Pollock, Viginogradoff,
Emmanuel Kant, to mention but few. These scholars are mainly concerned with the
origin of a right. According to this theory, a right is an inherent attribute of the human
will. Scholars in this theory believe that Man starts with thinking of something and
realizes that he needs that thing. Such realization of a Man and desire to have a certain
thing as his own is what is termed as Will. It follows that the subject-matter of a right
is derived from the exercise of a human will.

The Will theory was inspired and extended by the doctrine of natural rights. Scholars
say that will is a right which is a natural right and inalienable. Nature has given a Man
the capacity to know what should be done for him. A Man always seeks freedom. It is
the function of law to confer certain powers or allow certain freedom to individual in
the form of legal rights.

Natural law scholars believe that a Man by nature is guided to follow his own desire
and conducts. A Man is influenced by nature to desire what he wants. That desire is a
Will.
According to Justice Holmes, a legal right is;
“Nothing but a permission to exercise certain natural powers and upon
certain conditions to obtain protection, restitution or compensation by the aid
of public force”533

533
Also a legal right is the power of removing or enforcement legal limitations on conduct

271
Again according to Puchta, a legal right is a power over an object which by means of
this right can be subjected to the Will of the person enjoying the right. While Holland
says that legal right is the capacity residing in one man of controlling with the assent
and assistance of the state, the actions of others.

2.2: Interest Theory

One of the scholars who advocated for this theory is Rudolf Von Iherin who says Man
has no doubt on his capacity. It is for the society which has final say on what
constitutes a right through recognition and enforcement of such right. A legal right is
a legally protected interest. Iherin does not put emphasis on the element of will in a
legal right. He puts emphasis on the material element of interest. The basis of right is
not will but interest. According to Buckland, a legal right is an interest or an
expectation granted by law. Salmond says that a legal right is an interest recognized
and directed by a rule of right534.

Sociological theory lays a view that not all interests result into rights but only such
interests which can result into harmony and peace of the society. State cannot replace
its own will to that of individual. State must always take into consideration the
interests of the society535. In sociological theory neither state’s interests nor those of
individual have such a paramount importance over the society’s interests.

Under sociological theory, it is the interest of the whole society at large which is
given paramount importance other than those of state and individual. Whenever there
is a conflict between the rights of the state against those of individuals then it is the
society which shall prevail to determine as to which right stands. Normally the courts
are the ones to determine the interests of the society.

According to the totalitarians, the whole concept of legal right is wrong. The only real
thing is the state and not much importance should be attached to the individuals. The
state is omnipotent and all-embracing and individual has no existence independent of
the state. All rights belong to the state and the individual as such can claim nothing.

3.0: CONCLUSION
From the above discussion it can be observed that the theories advocating for the
concept of legal right have been put in different ways by various scholars depending
to what these scholars believe in. Normally scholars were influenced by their line of
thinking which motivated them to argue in accordance to their beliefs. Scholars in
Natural law theory argue according to their school of thought, those of sociological
also argue in accordance to their theory and even on other schools of thought. But all
this is intended to examine as to what real is the origin and basis of the concept of
legal right.

534
Paton defines a legal right in terms of recognition and protection by the legal order.
535
Duguit says that the law which recognizes the rights/interests of the society is only that which result
into social solidarity. He says that the emphasis on will is anti-social as it shows that man is in conflict
with his fellow-beings. He is of the view that there is no conflict of interests between society and the
individuals.

272
ALTERNATIVE ANSWER.

Outline.
1.0 Introduction
2.0 Essential Element of Legal right.
3.0 Theories of Legal Rights.
 Will theory
 Interest theory.
4.0 Conclusion.
5.0 Bibliography.

1.0 Introduction.
Legal right is a kind of interest, recognised and protected by law. Every needs or
want of human being is not right unless it is recognised and protected by law.
According to Hibbert, a right is “ one person’s capacity of obliging others to do or
forbear by means not of his own strength but by the strength of a third party.

According to Salmond, a right is an interest recognised and protected by a rule of

right. It is any interest, respect for which is a duty, and the disregard of which is
wrong. A legal right must obtain not merely legal protection but also legal
recognition. According to Holland a right is a capacity residing in one man of
controlling, with the assent and the assistance of the State, the action of others.

Having seen different meaning of legal right between different authors now am going
to discuss the theory of legal rights.

2.0 Essentials of legal Right.

In order a legal right said to be there, there are elements, which are required to be
established.

The first essential element is that there must be a person who is the owner of the right
who is subjected of the legal right. Sometimes described as a person of inherence.

Secondly, a legal right accrues against another person or persons who are under a
corresponding duty to respect that right. Such a person is called the person of
incidence or the subject of the duty.

Thirdly, there must be the object of the right. This is the thing over which the right is
exercised. This may also be called the subject matter of the right.

Fourthly, its content or substance, it may be an act, which the subject of incedence is
bound to do, or it may be forbearance on his part.

The last essential element of legal right is the title to the right. Facts must show how
the right vested in the owner of the right. That may be by purchase, inheritance, gift or
assignment.

3.0 Theories of Legal Right.

There are two main theories with regard to the nature of legal right.

273
Will Theory.
This is the theory belongs to natural law of jurisprudence; it says that man has the
capacity by nature to know what has to be done. The jurist says that all right
originates in the minds of the man.

According to this theory, a right is an inherent attribute of the human will. The right is
derived from the exercise of human will. The will theory was inspired and extended
by the doctrine of natural rights. It is the function of law to confer a certain powers or
allow certain freedom to individuals in the form of legal right. A legal right is a power
conferred by law. Justice However, Holmes states that, a legal right is nothing but a
permission to exercise certain natural powers and upon certain conditions to obtain
protection, restitution or compensation by the aid of public force. Puchta provides that
a legal right is a power over an object, which by means of this right can be subjected
to the will of the person enjoying the right.

Locke believed in alienable rights, according to him in certain spheres of individual

life, the state could not interfere. The basis of the right was the will of the individual.

The Interest Theory of Right.

This theory shows the ultimate stage when the right is framed. Ultimate stage in the
formation of right is recognition. This recognition of right is by the state and the
language of the state is law. Law shows what should be done to healthy, safe,
harmony etc.

The Philosopher Rudolf Van Inhering says, “ A legal right is a legally protected
interest.” He puts emphasis on the material element of interest. The basis of interest
is not a will but interest. According to Buckland, a legal right is an interest or an
expectation granted by law. Salmond, a state that right is an interest recognised and
directed by a rule of right. However some of the jurist tries to bring the reconciliation
between the will theory and interest theory. Allen says the essence of a legal right
seems to be not legally guaranteed power by itself nor legally protected interest by
itself, but the legally guaranteed power to realize an interest. A similar attempt to
reconciliation made by Jellinek that a right is the will power of man applied to a
utility or interest recognised and protected by a legal system. The human will does not
operate in a vacuum and interests are the objects of human desire. An interest is a
formal expression of the will of an individual or a group of individual. A correct
theory of legal rights must take into consideration both the element of will and
interest.

According to Gray, the interest theory is only partly true. He emphasised that a legal
right is not an interest in itself but is only a means to extend protection to interests.
Gray consider legal right as that power by which a man makes other person to do or
refrain from doing a certain act by imposing a legal duty upon them through the
agency of law (State).

Duguit state that, state has a limitation based on social interest of the society. He
contended further that, the interest must be that of the society. He said that will is not
an essential element in law or right. The real basis of law is social solidarity. The
emphasis of on will is anti-social as it shows that man is in conflict with his fellow
being. Duguit rejects altogether the conception of legal rights. There is no conflict of

274
interest between society and individual. No one has any right than always to do his
duty. Duguit goes to the extent of saying that the term ‘right’ should be removed from
the legal vocabulary.

According to the Totalitarians, the whole concept of legal right is wrong. The only
real thing is the state and not much importance should be attached to the individuals.
The state is omnipotent and all embracing and individual has no existence
independent of the state. All rights belong to the state and the individual can claim
nothing.

4.0 Conclusion.
Generally, both the theories reveal that they are not so much opposed to each other, as
they appear to be. These theories exaggerate in each other. It is only a synthesis of the
two that can give a correct picture. The human will is always directed towards certain
end. These ends are nothing but certain interests. Law protects certain wills persuing
certain interest as rights. Therefore, right means the legal protection and recognition
of human will directed towards the satisfaction of certain interest. Allen puts it very
beautifully as “the essence of right seems to me to be not legally guaranteed power by
itself, but the legally guaranteed power to realize an interest.

QUESTION: Discuss the theories of corporate personality.

Outline.
1.0 Introduction.
2.0 Theories of corporate personality.
 Fiction theory.
 Realistic theory.
 Concession theory.
 Bracket theory.
 Purpose theory.
3.0 Conclusion.
4.0 Bibliography.

1.0 Introduction.

The concept of legal personality emanate from the wider concept of person. The
concept of person has different meanings depending on the way it is used. Despite the
fact that, different jurists have defined the term person differently, the ordinary
meaning of person is human being, however in certain situation human beings are not
considered as person merely because there human being.

According to Salmond a person is any being whom the law regards as capable of
rights and duties. Therefore according to him any being that may have rights and
duties may be regarded as person despite the fact that it is not a human being.

According to Dias the term person has different shells of meaning depending on the
use, quality, function, purpose and necessity.

275
A person can either be legal or natural. Under natural person there are human beings,
lower animals, unborn child and dead persons. In respect of legal person there
corporations, institution and funds.

Mahajan., defines corporation as an artificial or fictitious person constituted by the

personification of a group or series of individuals. For a corporation to exist three
condition must be satisfied, that is, there must be a group or body of human beings
associated for a certain purpose; organs through which the body or group acts; and a
will attributed to a corporation by a legal fiction.
A corporation can either be corporate aggregate or a corporate sole. Whether
corporate aggregate or corporate sole each corporation must have the following
characteristic features; different legal personality it can sue or be sued on its own
name, perpetual existence, it can enter into contract on its own name and it may own
property. Unlike natural person a corporation can act only through its agent. It does
not die in the way natural person die; the law provides special procedure for the
winding up of corporation.

2.0 Theories of corporate personality.

There are various theories advanced by different jurists with regard to the nature of
corporate personality. These theories, which are going to be discussed herein below,
are the fiction theory, realistic theory, concession theory, bracket theory and purpose
theory.

The Fiction Theory.

Savigny, Salmond and Holland advocated the fiction theory. According to them the
personality of a corporation is different from that of its members. Personality is
attached to a corporation by pure legal fiction. There are two aspects of fiction that
fictions creating a thing not exist into existence and attribute rights and duties to such
a thing. Thus according to this theory, it is only human beings that can properly be
called persons and corporations are so called by legal fiction of the law.

The Realistic Theory.

Von Otto Gierke propounded this theory. According to him every group has real
mind, a real will and real power of action. A corporation has a real existence
independent of the fact whether it is recognised by the state or not.
He further provided that without law, sovereign and state there is legal personality.
According to this theory, every group comes to have a personality of its own whether
that group is a social one or political one.

Under this theory it is provided that law does not play a creative function but a
declarative function. Whatever the law do is not the creation but recognition. For
example in the first phase of German group of people lived together without the
concept of state, law and sovereignty but they did perform their duties and rights.
Also without authority of law people themselves create a ruler (person).

Concession Theory.
According to this theory, the legal personality of a corporation is only conferred by
law. If the state accepts that organization then there could be a corporation. Thus,
corporations are treated as persons merely by concession on the part of the sovereign.

276
Bracket Theory.
This theory says that the members of the corporation are the only persons who have
rights and duties. The granting of juristic personality means no more than putting a
bracket round the member in order to treat them as a unit. That bracket is a
corporation.

Purpose Theory.
The purpose theory, like the bracket theory, says that only human beings have
personality and juristic persons are not persons at all. Under this theory there is
certain purpose for recognition of a corporation. Every legal personality comes for
certain purpose, and basing on that purpose the law recognises a corporation as a
person. Incase that body goes against the purpose for which is created it will be said
to act ultra vires.

3.0 Conclusion.
The theories of corporate personality are of great help in the understanding in the
concept of legal personality as far as the corporation is concerned. Despite the fact
that each of these theories contains element of truth, none can, by itself, adequately
interpret the phenomenon of juristic personality. Corporate personality is a technical
legal device, applied for a multitude of very diverse aggregations, institutions and
transactions that have no common political or social denominator, whereas each of the
many theories has been conceived for a particular type of juristic personality. None of
them foresaw the extent to which the device of incorporation would be used in
modern business.

277
BIBLIOGRAPHY.
Fitzgerald P.J (2004) Salmond on Jurisprudence. 12th Edn, Universal Law
Publishing Co. PVT. LTD, Delhi.

Mahajan, V.D, (2001), Jurisprudence and Legal Theory, Eastern Book Company,
Lalbagn.

Myneni S.R (2004) Jurisprudence (legal theory) 2nd Edn S.P Gogia c/o Asia
Law house, Hyderabard

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CIVIL PROCEDURE QUESTIONS AND ANSWERS.
QUESTION
“Recent statutory developments in Tanzania have thrown the concept of jurisdiction
into disarray”
Discuss

OUTLINE

1.0 INTRODUCTION
1.1-The concept of jurisdiction

2.0 MAIN BODY

2.1 Statutory development and the changes in jurisdiction

2.2 Jurisdiction as to the General and Special Courts
2.3 The Recent Statutory Development and the Concept of Jurisdiction
2.3.1 Advantages of the noted statutory development
2.3.2 Disadvantages of the noted statutory development.

3.0 CONCLUSION

Bibliography

1.0 INTRODUCTION

In Tanzania there has been in the recent years the development of statutes. These
developments have the impact on the jurisdiction of the courts as there has been the
establishment of the courts with special jurisdiction. Though the said developments
have affected the entire system of the courts as there is the establishment of the
hierarchy which is independent such as the land division courts in which the Ward
Tribunal is taken as the court for the purpose of the Act establishing it and at the top
there is the High Court Land Division. Before going to the keen of the question it is
better to start by familiarising ourselves on the concept of jurisdiction.

1.1 THE CONCEPT OF JURISDICTION

The term Jurisdiction is not defined in Tanzanian statutes; hence we have to fall back
to the common law by virtue of section 2 (3) of the judicature and application of laws
Act herein below referred to as the JALA which allows the application of such laws in
our legal system. Jurisdiction is defined as the power or authority of court to hear and

279
determine a cause, to adjudicate and exercise any judicial power in relation to it 536.in
other words by jurisdiction it is meant the authority which a court has to decide
matters that are litigated before it or to take cognizance of matters presented in a
formal way for its decision537.

Thus jurisdiction of court means the extent of the authority of a court to administer
justice prescribed with reference to the subject matter, pecuniary value and local
limits538. However generally Jurisdiction is defined as the power of the court or
tribunal to hear and determine matters which are placed before it. Jurisdiction being
important matter it was stated in the case of UTAMWA V AG & MUNGAI539 that
jurisdiction must be determined at the beginning of the proceedings not at the in the
course of or at the end of proceedings.

2.0 MAIN BODY

2.1 STATUTORY DEVELOPMENT AND THE CHANGES IN

JURISDICTION.

In civil procedure the understanding of the jurisdiction of court one has to look on the
statute establishing the respective court. In our country the civil procedure is guided
by the civil procedure code 1966 which according to section 2 of the code the court in
which applies are the High court, the District court and the Resident magistrate court.
However section 7 of the civil procedure code provides the presumption of
jurisdiction to all civil court and gives cognizance of the power of other statute to oust
general civil jurisdiction and to grant exclusive jurisdiction in certain civil matters.
In recent years there have been enactments of several statutes which in one way have
affected the ordinary application of the jurisdiction compared to what was previously
conceived.

The recent development of statutes in Tanzania has witnessed the establishment of

several divisions of the high court which varies the jurisdiction of the court. As it is
known the High Court has been established by article 108 of the Constitution of the
United Republic of Tanzania 1977 as amended from time to time. The jurisdiction of
the High Court is provided for under section 2(1) of Judicature and Application of
Laws Act540 that it has an unlimited jurisdiction over all matters.

There is also the enactment of the High Court Registry rules. These rules established
several sub- registries of the High Court which operate in zones, but this is not to be
taken to mean that, the High Court territorial jurisdiction is confined on the said zones
rather it is just for administration matters only. However, there has been recent
enactment of several statutes which either takes away the jurisdiction of court or
makes the court to have concurrent jurisdiction. To understand this, it is time now we
look at different enactments of statutes which have effect on jurisdiction.

536
C.K. Takwani, Civil Procedure,5th Ed, p 33
537
Official Trustee V Sachindra AIR 1969 SC 823 (827):(1969) 3 SCR 92
538
Raja Soap Factory V S.P Shantharaj A.I.R (1965) SC 1449:(1965) 2 SCR 800
539
Civil Appeal 40/2000.
540
Cap 358 R.E 2002

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To start with is the Land Division; this is a division of the High Court which is
established under section 3 of the Court (Land Dispute Settlement) Act. This law has
taken away the High Court jurisdiction over land matters which previously was the
concern of the High Court main division and vested it to the respective division. The
Act also has caused the establishment of the Village Land Council, the Ward
Tribunal, the District Land and Housing Tribunal; which are recognised as courts
under the Act. All these bodies established under that law are vested with exclusive
jurisdiction over land matters. The Courts (Land Dispute Settlement) act is the
product of section 167 (1) (b) which vests exclusive jurisdiction on land matters over
among other tribunals the High Court Land Division

Another enactment of law which has affected the jurisdiction of the courts is the
Labour Institutions Act; this law under the provisions of section 50 provides for the
establishment of a Labour Division of the High Court; which is a court which
exercises jurisdiction over labour disputes as provided under section 94 of the
Employment and Labour Relations Act 2004.The court has exclusive jurisdiction over
labour matters. This court has taken away the jurisdiction which was at the beginning
exclusively vested on the District Court.

Also the Commercial Division of the High Court is one of the High Court divisions
which are established by the high court registry rules. Though established by the said
rules it is a division of the high court and not a sub registry. This new established
division is very different from the two previously explained ones, because though it is
established to deal with commercial matters the law establishing it has not granted it
exclusive jurisdiction .It therefore exercises concurrent jurisdiction with the general
division of the high court. The court has been established to deal with commercial
matters.

In recent years there has been enactment of several statutes. The enactment of
statutes which establishes courts usually affect the pre existing system of jurisdiction.
A good example is the Courts (Land Dispute Settlement) Act. This court has varied
the pecuniary jurisdiction of courts over land matters, but with reference to the
established courts/tribunals such as the District Land and Housing Tribunal which has
been established by the law, deals with matters which the subject matter does not
exceed 40 million shillings and the Ward Land Tribunal of which has a pecuniary
jurisdiction of 5 million shillings. It should be known that this law has taken away the
primary court and district court ordinary jurisdiction over land matters and vested it
to the afore said courts.

2.2 JURISDICTION AS TO GENERAL AND SPECIAL COURTS

Generally Tanzania has three tier court systems which comprises of the High court at
the top, District court and Resident Magistrate Court at the middle and the Primary
Court at the bottom.

The High Court by virtue of section 2(1) of JALA, has unlimited civil jurisdiction,
territorially and pecuniary. The Resident Magistrate Court and District Court have
concurrent jurisdiction over civil matters as provided under section 41 (1) of the
Magistrate Court Act, 1984. District court and resident Magistrate court are

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established under sections 4 and 5 of the MCA respectively. The civil jurisdiction of
the two courts before the recent statutory development is as follows.

The pecuniary jurisdiction of the district court in relation to immovable property is

150,000,000/=Tsh. And in respect of the subject matter capable of being estimated at
money value, the courts can entertain such matters where the value does not exceed
100,000,000/=Tsh541. The Resident Magistrate having concurrent jurisdiction with
District court could entertain matters of the same pecuniary value. It should be known
that before the recent statutory development, the court could try any civil matter of
any subject matter. And also the district court had exclusive jurisdiction in labour
matters.

However, recently there has been statutory development which has affected the
ordinary jurisdiction of courts in entertaining civil matters; for example, there have
been established division in the High Court which have exclusive jurisdiction over
land matters, another division vested with exclusive jurisdiction over labour matters
and another division dealing with commercial matters. However, the main division of
the high court has retained unlimited jurisdiction over other matters except those
which the divisions have been given exclusive jurisdiction i.e. Land, labour and
commercial divisions.

Also the exclusive jurisdiction of the district court to deal with labour matters has
been taken away and it is now vested in the high court labour division by virtue of
section 50 of the labour Institutions Act. This division has been granted exclusive
jurisdiction over labour matters.

The jurisdiction of district court in respect of land matters has been also ousted under
the provisions of section 3 of the Court (Land Dispute Settlement) Act which has
established the high court division, the District land and housing tribunal and ward
tribunal and village land council which has been vested with exclusive jurisdiction
over land matters.

The pecuniary jurisdiction of the district court also has been specifically granted to
the court by virtue of the Written Laws (Miscellaneous Amendments) Act 2004.under
the law which amends the Magistrates Courts Act Section 40 adding that the court
will deal with commercial matters and also that its jurisdiction on such matters in
respect recovery of possession of immovable property where the value does not
exceed fifty million and in respect of subject matter that can be estimated at money
value the amount should not exceed thirty million.

Formally under section 18 (2) of the Magistrate Court Act the chief justice had power
by order published in the government gazette to make rules which could give the
primary court jurisdiction on the land matters especially on the administration of the
estate of the deceased person provided that the deceased person at a time of death had
a fixed place of a body within the area of the jurisdiction of the court and the law
applicable in the administration or distribution to the estate is customary or Islamic
law. The chief justice enacted these rules by virtue of GN No. 320 of 1964. So having
the hierarchy of the courts on land matters from ward tribunals (special courts) the

541
This is provided by the Written Laws (Miscellaneous Amendment) Act No 3 of 2002

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jurisdiction formally vested on the primary court is bared by this hierarchy of land
courts at the matters would be directed towards these courts.

2.3 THE RECENT STATUTORY DEVELOPMENT AND CONCEPT OF

JURISDICTION

The overview of the recent statutory development and its impact on the concept of
jurisdiction is two folds. To determine whether the statutory development in Tanzania
has thrown the concept of jurisdiction into disarray or not one has to look on the
advantage and disadvantages of the creation of the special divisions of the courts.

2.3.1 Advantages of the noted statutory developments.

The statutory development has helped to provide specific courts to deal with specific
cases arising from specific discipline for instance the land division which have
exclusive jurisdiction in land matters. Thus the specialization of the courts in different
disciplines shows the picture of the well organized court system.

Also this development has facilitated the disposition of cases easily this is because
before the introduction of these divisions all cases were confined in the general or
ordinary jurisdiction of the courts. For instance the district courts apart from having
exclusive jurisdiction on the labour matters such jurisdiction has been vested into the
labour division hence reduce the burden to the district courts of dealing with
numerous cases. This in fact has facilitated disposition of cases.

2.3.2 Disadvantages of the noted statutory developments

It is well settled law that the court of appeal is not established by the Act of the
parliament however following the introduction of the Courts (Land Dispute
Settlement) Act recognises the court of appeal as the court with jurisdiction over land
matters. This recognition by section 3 (2) (e) of the Act brings inconsistence because
as far as the jurisdiction of the courts because the court of appeal does not have
original jurisdiction. What was supposed to be the concern of this provision was to
deal with the courts of original jurisdiction. Whereas this section has lead into conflict
as the court of appeal, the court of appeal has jurisdiction as provided for by the
Appellate Jurisdiction Act, 1979.

In addition the establishment of the division of high court are acting as the bar
towards the access to justice, for instance the high court commercial division has only
sub registry in Arusha and main registry in Dar es Salaam. Also the high court land
division has its establishment only in Dar es Salaam therefore the cases of land
matters in the other regions have to wait the circuit movement of the judges from Dar
es salaam which acts as the delay as it is not easy for them to circulate in the country
at appropriate time.

The exclusive jurisdiction vested in the general division of the High Court for
instance exclusive jurisdiction on bankruptcy, probate matters in exclusion of small
estate, company especial in insolvency and winding up and admiralty plays as

283
disadvantage as it leaves only one step for the appeal by the one having suit to be
dealt by this court.

The recent development of statute has a disadvantage in that, it has witnessed the
establishment of several courts with exclusive jurisdiction this has caused confusion
to people as they fail to know exactly that as to which court they should institute their
case, this may result into dismissal of cases. This is a result of people’s ignorance in
law and changes therein.

Further, another disadvantage due to the development of the commercial court it has
been too cost full for people to file suits in commercial courts hence deny peoples
rights as they cannot afford such cost to institute their cases. On top of that the
Commercial Division of the High Court as it has concurrent jurisdiction with other
divisions of the High Court it appears that case which were supposed to be instituted
in this division of the High Court can either be instituted in the Land Division542 or in
the General Division of the High Court.

There is another problem as far as the jurisdiction of the courts as it appears

apparently that under section 40 (2) (a) and (b) of the Magistrate Court Act that the
District court has pecuniary jurisdiction over immovable property as it is 150,000,000
and 100,000,000 for the other properties where then subject matter is capable of being
estimated at money value.543From the provisions of this Act the District Court is
having the jurisdiction on the immovable and other properties as given by these laws.

At the same time the District Court has jurisdiction over the commercial matters
where in section 2 of the Magistrate court there the inclusion of the term Commercial
Case544 whereby the court has jurisdiction on the commercial cases in which the
district court has jurisdiction on proceeding of immovable property not exceeding
fifty million, and proceeding in which the value can be estimated at a money of the
subject matter not exceeding thirty million. The problem with these laws is that it
appears difficult on the part of jurisdiction because people found it difficult as to
which court to institute the suit whether to be instituted in the district court or the land
division as the law deals with the immovable property, or the part of the district court
with the commercial division.

3.0 CONCLUSION

To conclude, generally the law of Tanzania is the law which has not reached the stage
of its development in which the community can come up with the conclusion that
there is the settled law in Tanzania. Following the present court system it is evidenced
that even the jurisdiction vested to some courts by either the statutes establishing them
or other statutes have experienced either the express bar of jurisdiction or the bar of
such jurisdiction by general implication. This is because the adopted statutes from the
common law are under transformation to suit the situation of our local circumstances.

542
The cases involving securities like mortgages and other cases which are involving commercial
activities but they involve securities like land
543
See the Written Laws (Miscellaneous Amendments) Act No 3 of 2002
544
In the Written Laws (Miscellaneous Amendment) Act No 4 of 2004, commercial means a civil case
involving a matter considered to be of commercial significance including but not limited to [See
those instances provided under roman I to roman xi)

284
The present statutory development therefore apart from facilitating the attainment of
justice in the society its impact has affected the existed jurisdiction of the courts that
in a large part of the country due to ignorance of law it has become difficult for the
society to comprehend with the new enactments as far as the jurisdiction of the courts
is concerned. All in all the statutory development in Tanzania is aimed not to outer
jurisdiction of the courts but the main purpose is to facilitate the attainment of justice
by adopting the system of specialization.

Qn:
Find out how do the provisions of the civil procedure code, 1966 reflects the
adversarial system of procedure.

OUTLINE

1.0 INTRODUCTION
-Meaning of Adversarial Dispute Settlement
-Features of Adversarial Dispute Settlement

2.0 MAIN BODY

2.1 The Reflection of the Adversarial System in the Provisions of the Code.

2.2 Observation of the Code In Relation to the Adversarial System.

3.0 CONCLUSION

BIBLIOGRAPHY

1.0 INTRODUCTION

The concept of Adversarial system

There are several ways in which disputes involving individuals in the society can be
settled: one of the ways is the adversarial system of dispute settlement. This is a
system whereby the court has no role to play except in the hearing of the case, it is
different from what is commonly known as inquisitorial system of dispute settlement.
Adversarial system is a system where the parties to dispute appear before the court as
enemies, they are the ones to prosecute the case, to decide on the procedural step to
take and at what time, also the court plays a passive role.

The system has several features such as; the court merely plays a secondary role of
enforcing the rules of procedure and will not take any procedural step which is within
the parties rights’ to take or not to take without an express request from the parties.

285
there for as Dr Lamwai545 says the courts role is reduced merely to that of an
umpire’s role court does not have investigative powers, can not call independent
witnesses and can not try the issues which are not disclosed by the pleadings

The parties therefore under adversarial system play the predominant role in the
conduct of the litigation until the actual trial which come from the predominant
control of the court here the parties are regarded as opponent or adversaries who
subject to the rules of court and orders made by the court in particular proceedings are
free to conduct their litigation in their own way.

The parties are required to prepare their own cases for trial and make their own
investigations in this sense therefore there is the party investigation and party
prosecution. The party is supposed to call his own witnesses and to present his own
case at the trial. Also the parties are the masters of procedure as any procedural step
taken in a civil case must be taken by parties .Example the law allows the parties to
exhibit interrogatory but does not bind them to do so, this is what is called dispositive
election. And finally the court gives his judgment after hearing both parties.

The adversarial system which owed its origin from the English Legal System
presupposes the giving of decision on the basis of winner takes all. This system
however was adopted in Tanzania by the reception clause which received the English
Laws both procedural and substantive546.

As to whether the courts in Tanzania adhered to the principles of Adversarial system

of dispute settlement strictly the position was stated in the case of JOHN
MAGENDO V GOVANNI547 where the High Court stated that where a particular
provision of law is cited wrongly it is the duty of the court having taken judicial
notice of the law to correct it. Thus the case enunciated the position as to the status of
adversarial system in Tanzania that the courts should not play hundred percent passive
roles like in England.
2.0 MAIN BODY

After looking into the concept of adversarial dispute settlement it can be deducted that
the system is also used in Tanzania to solve civil dispute, where by one of the statutes
used is the Civil Procedure Code 1966 cap 33 RE 2002 (here in below referred to as
the Code). As required by the question we shall now deal with the Code as to how it
reflects the adversarial system.

2.1 The reflection of the adversarial system in the provisions of the code.

The existence of a dispute between persons presupposes the existence of a litis

contestatio this is established where there has been a demand by one of the parties by
way of a demand note and it has been met by a refusal by the other party. At this
instance it is on the discretion of the party making such a demand to take the matter to
court.

545
Lamwai, R.M, PhD Dissertation, P.6
546
Article 17 (2) of the Tanganyika Order in Council 1920 (22/7/1920) imported into Tanzania the
English common laws the Doctrines of Equity, and statutes of General application.
547
[1973] LRT n 60

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On the institution of any civil suit usually there are two parties that is the plaintiff who
is the claimant and the defendant who disputes the claims. Order I rule1 deals with the
plaintiff while Order I Rule 3 deals with the defendant in a civil suit. Under section
22 of the code it is provided that a suit is instituted by the presentation of the plaint or
in any other manner prescribed. Usually it is presented by the plaintiff. This should be
read together with Order VI Rule 1 which provides that there should be pleading.

Pleading includes plaint and written statement of defence which is a document drawn
by the defendant in reply to what has been stated in the plaint by the plaintiff. Where
there is pleading the sense of adversarial system is reflected as after presentation of
the plaint by the plaintiff will make the defendant to react by presentation of written
statement of defence as provided under Order VIII of the code this will only be
possible where the defendant has been summoned as required by Order V Rule 1 (a)
and (b). From this it can be seen that there is an active role of parties on the stage of
institution of the suit and the court here plays a passive role this reflect on the
adversarial system where by the system needs an active participation of parties in a
suit.

On the same aspect another sense of adversarial system is evidenced under Order VII
Rule 9 which requires the plaintiff to endorse on the plaint or annex there to, a list of
documents (if any) which he has produced along with it. The collection of evidence
and the presentation before the court is done by parties to the dispute; here the court
plays a passive role. The finding of evidence by parties to dispute therefore reflects
the adversarial system of dispute settlement.

Also the code reflects the adversarial system on the hearing stage, where it envisages
for the appearance of the parties to the suit before the court as provided under Order
III Rule 1 of the Code. Here the party himself may appear or may be represented by
an advocate or by a recognised agent. Order IX rule 9 imposes the duty to the parties
to appear before the court for the hearing or when summons is served. In the
adversarial system appearance of the parties before the court is the inherent feature
which in our law has been reflected in the above provisions. This duty is of paramount
importance because the parties will be in the position to contest in the court and the
judge/magistrate will be there as an umpire regulating the contest of the parties.

The code under Section 26 is to the effect that witnesses can be summoned to give
evidence pursuant to sections 23 and 24 the same is well expounded under Order XVI
Rule 1 that the parties at any time may apply to the court to obtain summons to be
served to the persons/witnesses to appear before the court and give evidence. This
presupposes that the parties to the suit are the masters of procedure they have to
decide what procedural steps to take and at what time and the court becomes an
arbiter or a referee hence becomes one of the ways in which the code reflects the
adversarial system of procedure.

Again under Order XVI Rule 2 (1) the cost for calling witnesses is incurred by the
parties which as a matter of procedure it is given to the court before the summons is
granted and the time to appear is fixed. This reflects adversarial system which
advocates for party investigation and prosecution as the parties are required to prepare
his own case for trial hence the cost incurred therein is of the parties.

287
The parties in the suit have the rights to examine the witnesses, the aim being to
collect enough evidence to support their suit Order XVIII Rule 2 (1) .The court in
adversarial system operates in the basis of judicial ignorance and thus the court let the
case unfold as presented by the parties; Hence the parties have to examine the
witnesses they have called as the parties are presumed to have the best knowledge of
their case.

In the adversarial system of dispute settlement the parties are required to make
investigation and discoveries of their own case, the code under provisions of Order XI
Rule1 provides that the parties to a suit being plaintiff or defendant may make
interrogatories to the other party by the leave the court so as to make
investigations(to enable the party to know the nature of his opponents case) on the
matter in dispute provided that the interrogatories are given in one set unless
otherwise provided by the court and such interrogatories should relate to the matter in
dispute. Interrogatories are written questions which are put by a party to civil
proceedings to his opponent and which must be answered by the opponent by filling
an affidavit. There is no limit to the time in which interrogatories may be exhibited.

To enhance the contest between the parties to civil proceedings the code entitles the
parties to issue a notice to his opponent for inspection of documents which are in his
own possession or power as it is shown in Order XI Rule 13.to all these inspection
and discoveries aimed at collecting evidence by the parties themselves. From this it
can be said that likewise in the adversarial system parties are required to conduct
investigation of their own case. And the court is there to listen the reason being that in
private property and incidence of their ownership is known only to the owner as no
way the parties can be excluded hence it is the party who knows where to find the
evidence and therefore they must find their evidence at their own expense as provided
under Order XI rule 3.

After completion of recording the evidence submitted by each party before the court,
finally the presiding officer of the court gives his judgment. This is the procedure
adopted in adversarial system. Likewise under code, section 28 provides that; the
court after the case has been heard, shall pronounce the judgment, and such judgment
a decree shall follow. Thus section 28 has to be read together with Order 20 Rule 1
and 2 which provide for the pronouncement of the judgment. What is implied in these
provisions the court pronounce the judgment after and the judge or magistrate who
usually play the role of being passive has heard the evidence of the parties. This is the
feature of adversarial principle and their judgment pronounces is on the basis of
winner takes all. Further after the winner takes all, the decree holder shall file for the
execution of decree under the code Order XXI.

2.2 Observation of the Code In Relation to the Adversarial System

Having seen the reflection of the adversarial system in the code it has to be noted that
the court plays a passive role as stated by Biron J, on an appeal originated from the
Resident Magistrate of Morogoro in the case of JOHN MAGENDO V. GOVANNI
(supra), however he went further to point that the court should not play a total passive
role rather it should play assistance role as not to watch the parties making procedural

288
blunders. The court should advice the parties on procedure and what they are
supposed to do in order to prove their case.

Although the code is based on the adversarial system of the administration of justice,
there has been a judicial modification of the adversarial system in Tanzania to give
the court some active roles to play in the cause of hearing a case. The parties still have
a choice of the procedural steps. But where it is apparent to the court that one or both
parties is unable to proceed properly because of his ignorant or legal illiteracy then it
is upon the court to advise that party in a way that, it is one of the methods to
guarantee the access of justice in Tanzania.

Further the court also had been given a more active role under Order VIII A of the
code; the order introduced some new procedures in our civil litigation that before the
case set for hearing under adversarial procedure the court sit as a mediator, in a
system which is called Alternative Dispute Resolution. This is alternative to the
adversarial system, that instead of adjudication in adversarial system which based on
evidence and law, the Alternative Dispute Resolution is held by a mediator instead of
a judge. Therefore the code is partly adversarial and partly reconciliatory.

CONCLUSION
Conclusively it could be said that, the civil procedure code, 1966 has reflected the
adversarial principles of dispute settlement an applied in England. However some
modifications have been made in the code to ensure that it suits our conditions. It
should be borne in mind that adversarial system of procedure much assumes legal
literacy to the parties involved and that is why they are left to conduct their case alone
and the court remains an umpire. This fact when taken in our country it can be seen
that the level of legal literacy by the citizens is very low together with the poor
economic condition which hinders people to hire advocates made it essential that the
code is amended so as to accommodate all persons

Qn: Joinder of parties and representative suit are similar and dissimilar.
Discuss.

TABLE OF THE CONTENTS

1.0: INTRODUCTION
1.1: The concept of parties to the suit.
1.2: Meaning of Joinder of parties and Representative suit

2.0: MAIN BODY

2.1: The Similarities between Joinder of parties and Representative suit..
2.2: Differences between Joinder of parties and Representative parties.

3.0: CONCLUSION

REFERENCE.

289
 1.0: INTRODUCTION
1.1: The concept of parties to the suit.
In a general rule, in any civil suit there must be two parties to a suit. These parties are
the plaintiff and the defendant548. The general principle is that a plaintiff should be the
person who is directly claiming a right against another, or who is claiming directly
under him. Such right is not merely a moral right rather a legal right in law. On the
other hand, a defendant is a person against whom a right in law is claimed.

In a civil litigation, it is for the plaintiff to prosecute the case while the defendant has
to defend the case as against the plaintiff. For instance if A is claiming against B and
that the former has instituted a civil case in a court against the latter, then A becomes
the plaintiff who is prosecuting the case against B who is the defendant defending the
case against A.

1.2: Meaning of Joinder of parties and Representative suit

Within the concept of parties to the suit there arises the concept of Joinder of parties
and Representatives. No one can be compelled to join as a plaintiff in one suit with
another person. However the law provide for those who can sue or be sued jointly.
Order I Rule 1 and 3 provide for who can be joined as plaintiffs in one suit, and who
can be joined as defendants in a suit respectively. It follows therefore that the joinder
of parties is permissive however, it is not mandatory549.

In deciding whether to join plaintiff or defendants one has to look on the cause of
action. This implies that, when talking of joinder of parties, there is a connection
between Order I and Order II which relates to the joinder of cause of action. In fact,
no where in the Civil Procedure Code550 where there is an express definition of a
cause in action. But in the cause of practice, it is commonly known as the legal
complaint raised by the plaintiff against the defendant and it comprises all the facts
which are asserted by the plaintiff and denied by the defendant. All these facts have to
be proved by the plaintiff in order to make him be entitled to relief.

Under Order I Rule 1, all persons may be joined in one suit as plaintiffs where any of
such persons has a right to relief arising out of the same act or transaction or series of
acts or transactions and where it is proven that if separate suit were brought, common
question of law or fact would rise.

It is in the interests of the republic that litigation must come to an end, and that good
administration of justice is not interested in the multiplicity of suit. Multiplicity of
suits weaken the society because more time will be spent in litigation than in
production and further will create possibility of having conflicting decisions by the
same court or different courts on the same facts and same law.

548
These parties are further categorized into necessary party(which refer to that party whose presence
in court is necessary for the purpose of issuing an effective decree) and proper party(which refer to that
party whose presence in the court is dispensable, that is its presence is not necessary for the court to
issue an effective decree, but whose presence is important)
549
This is in the fact that, where the court is of the view that joining of the parties would embarrass or
delay the trial may put the plaintiffs to their election or order separate trials or make such other order as
may be expedient. This is as per Order I Rule 2.
550
Cap 33 R.E.2002

290
Therefore in joinder of parties, the law creates a favourable condition where the same
evidence which is going to be adduced by the plaintiff against several defendants or
by defendant as against the plaintiff, to be jointly used in prosecuting or defending a
case.

It has to be noted however that there are basically two requirements as to the joinder
of parties to be possible. That is there must be a right to relief which has to be legal
right and not moral right. This legal right must arise out of the same act or transaction
or series of acts or transactions. It is not necessarily that the parties joined should have
the same relief or common relief claimed against the defendant. What is important is
that such claims arise out of the same act or transaction.

The other requirement is that, one should establish that, if separate suits were brought
either by the several plaintiffs against several defendants, then common question of
law would arise. This was stated in the case of STROUD V LAWSON551 where the
court stated that on determining the issue of whether to join the parties in one suit, the
common question of facts is looked upon the evidence which will be required in
proving the different suits by different parties or against the different parties or
defendants if separate suits were brought.

On the other hand, Representative suit is a suit in which a small group of persons are
allowed to institute a suit and prosecute it on their own behalf and on behalf of others
who are not in the court. Where the court pronounces its decision, then it binds all
who are in and those not in the court. In U.S.A this is termed as group action. It
happens where there is a group which intends to pursue group interests. Such suits can
not be instituted without court issuing the court Representative order.

In order for a court to issue a representation order, it has to be satisfied itself that there
is a joint interest among the members of the group. The law regarding representative
suit is provided under Order I Rule 8 of the Civil Procedure Code. And as it was
stated in the case of DAUDA ABDULLAH V AHMED SULEIMAN552 where the
Court when interpreting the provisions of Order I Rule 8 of the Kenyan Civil
Procedure Code which is in pari materia with the same provision under the Tanzanian
Civil Procedure Code, had this to say;
“We have to consider the language of Order I Rule 8 and be guided by it and
not attempt to extend or limit what according to its natural construction
appears to be ambit of the rules. The rule authorizes the bringing of a
representative action only where there are numerous persons having the same
interest in the suit. It says nothing whatsoever about suits founded in contract
or in tort or any other kind of suit. The sole test is whether the plaintiffs and
persons whom they claim to represent have the same interest”

Therefore, in the light of the above authority553, a representative suit does not depend
upon the nature of suit. A representative suit depends upon the existence of the joint

551
[1898]2Q.B.44,52
552
[1946]13EACA 321
553
DAUDA ABDULLAH’s Casesupra followed an English case of the DUKE OF BEDFORD V
ELLIS&OTHERS[1901]AC 7 which is one of the leading cases in Representative suit. In the latter
case, Lord McNaughten, J, had this to say;

291
interest in the suit by those seeking to represent others and those to be represented. In
actual fact when the court is considering a representative suit it has to take into
account whether there is a common interest among the parties and whether they have
common grievance554.

2.0: MAIN BODY

The center of this work requires a discussion on the similarities and differences of the
Joinder of parties and Representative suit. These can be discussed here below as
follows;

2.1: The Similarities between Joinder of parties and Representative suit..

The two resemble in the sense that when separate suits are filed, common questions
of law and facts would arise. This is as per Order I Rule 1&3 of the Civil Procedure
Code for the case of joinder of parties.

Both save time of the court. This is inline with the maxim that it is in the interests of
the republic that litigation should come to a speed end. Institution of separate suits
may cost the court the time to hear and determine all such suits which in actual sense
do have connection to one another at the same time on the part of representative suit,
representation of so many parties to a suit where all such parties do have common
interest and common grievance will cost the court time to hear all such parties with
common interests.

They are all aimed at avoiding multiplicity of cases. That is in case of representative
suit, instead of each party coming before a court suing on the different cases with
same facts and common interests; they are all represented by in a single case with
common grievance. Similar to the joinder of parties where the parties instead of suing
their cases differently, they are joined in a single suit to avoid multiplicity of cases.

Again both save the purpose of maintaining the confidence of the court, which is to
reach a common decision in such suits of the same facts. This implies that it is in the
interests of justice that decisions of the same court on the cases of same facts should
be certain and consistent.

In both Joinder of parties and Representative suit, the doctrine of Res Judicata applies.
This is the doctrine555 which means that no court shall try a suit whose subject matter
is substantially and directly the same as the subject matter which was tried in another
suit. No case which has been instituted either in Joinder of parties or in representative
suit can be re-instituted after having been determined by a competent court which has
pronounced the decision thereof. Parties to the suit have to take that as a decision
given by a competent court.

In considering whether the representative action is maintainable you have to consider what is
common to the class and not what differentiate the cases of individual members… for the sake
of convenience, it was a right given to a common interest and common grievance…
554
In the case of MARK&CO LTD V KNIGHT S.J.CO LTD[1910]2KB 1021 the court said that
there are three requirements which the court must be satisfied with and those are; all members of the
alleged class in a representative suit must have a common interest; all members must have the common
grievance; and the relief to be given in such a suit must be beneficial to all.
555
It is provided under Section 9 of the Civil Procedure Code. And it was discussed its elements in the
case of KARSAN V BROGHA [1953]20EACA 74.

292
 2.2: Differences between Joinder of parties and Representative parties.
The two concepts have some aspects of differences. These can be discussed as follows
herein below;

That in Joinder of parties a claim and relief from each of the party may be different
depending on their causes of action even though such claims have arisen out of the
same act or transaction or series of acts or transactions while on the other side in
Representative suit, claim and relief shall be the same because the parties will be
having common interests and common grievance in a suit.

Again in Joinder of parties judgment pronounced may bind in different ways some of
the parties depending on in whose judgment is given in favour in each cause of action
while in Representative suit the judgment bind the parties in the same manner. This is
because in a Joinder of parties the parties though having claims arising out of the
same act or transaction or series of acts or transactions, yet the judgment will vary
depending on the claim of each party on its cause of action, while in the
Representative suit, all the parties will be having common interests and common
grievance and hence judgment pronounced will be binding the same way to all.

Also in Joinder of parties causes of action may be more than one but having occurred
in the same act or transaction or series of acts or transactions but in Representative
suit, there must be common interests and common grievance on all the parties
represented in a suit.

In recording the names, for Joinder of parties all the names will appear due to the fact
that these parties will be having various causes of action which have arisen out of the
same act or transaction while in Representative suit, the one who is appointed to
represent others is the one whose name will appear in records even though the
judgment passed will bind all the other parties represented.

Further, in Joinder of parties any party can argue and prosecute or defend his case
while in Representative suit only a representing party can argue and prosecute a case.
This is in the reason that in Joinder of parties, such parties may be having different
causes of action which have arisen at the same act or transaction but each of them
demanding relief of his own while in Representative suit the parties will be having the
same cause of action only that they are represented by an appointed party to that case.

Representative suit is mainly in respect of plaintiffs only and not defendants while
Joinder of parties is in respect with both plaintiffs and defendants. This is due to the
fact that the practice of the court is that Representative suit is granted at the time of
instituting a case while Joinder of parties may even occur after the institution of a
case.

In Joinder of parties different from Representative suit, there is conflict of interests

between the parties so joined in a suit and which sometimes may result into the
distortion of one party’s evidence due to the evidence given by the other party while
defending his claim, on the other side that is not the case in Representative suit since
the evidence adduced shall be directed towards the common interests of the parties
and common grievance. In other words, the plaintiffs will be joining their efforts
towards attacking their common enemy as stated by Jessel, MR in THE

293
COMMISSIONER OF SEWERS OF THE CITY OF LONDON V
GELLATTY556, where he stated;
“All persons having a common right which is invaded by a common enemy
although they may have different rights inter-se are entitled to join in
attacking that common enemy in respect of a common right”.(emphasis is
mine)

In Joinder of parties any party can be added or struck out at any time of
proceedings557 while in Representative suit that can not happen. This is as per Order I
Rule 10(2) which provides that the court upon application of either party to the suit or
on such terms which may appear before the court to be just, may order the name of
any party improperly joined whether a plaintiff or defendant, be struck out.

In the Case of YOWANA KAHERE AND OTHERS V BUNYO ESTATE LTD558

eight plaintiffs were suing a common landlord. Their landlord had given them a notice
to quit the land which they had occupied in different portions in that landlord’s land.
They were not tenants in common. They joined one action some claimed that they had
unlawfully evicted, and their building and crops had been destroyed. Others were still
in possession of the land but claimed that their building and crops had been destroyed.
The eight plaintiff sued in one suit. The issue was whether they had been properly
joined.

The court answered that question in a negative way and had this to say;
“It is necessary for joinder of parties that these conditions should be fulfilled
that is to say, that the right to relief alleged to exist in each plaintiff should be
in respect of or arise out of the same transaction and also that there should be
the common question of fact or law in order that the case may be within the
rule”.
It follows therefore that, in the above case the parties were found to be improperly
joined and hence struck out.

3.0: CONCLUSION.
To conclude this work it is better to point once again that though the two concepts
seem to be similar in one way or another, on the other side Joinder of parties and
Representative suit are different in terms of the way they operate and their effects
thereto. However both are aimed at maintaining the maxim that it is in the interests of
the republic that litigation should come to a speed end.

Qn “During the course of the proceedings in the court various pleadings,

summonses, and affidavits, lists and orders have to be served between the
parties. Service is done by the court through the court process servers or the
court may direct the parties to serve each other.”

556
[1876]3Ch.D 610,615.
557
This was discussed in the case of HORWOOD V STATESMAN PUBLISHING
CO.LTD(1929)1LTR 59 at 57 where the court stated that;
“…you should include all parties in one action subject to the discretion of the court if that
inclusion is embarrassing to strike out one or more of the parties…”
558
[1959]EA 319

294
Briefly discuss the validity of this assertion in the light of the law and practice
relating to the service of documents.

INTRODUCTION
The object of the civil procedure law is to enable the parties as well as the courts to
know matters, which are in dispute so as to have guidance in determining cases fairly.
This object can only be attained by what is known as service of document. In the
context of civil procedure service of document means a process whereby the other
party to the litigation is served with document of which the other party has either filed
to the court or intends to rely upon during the court proceeding.

In Blacks Law Dictionary, 559 service means, the formal delivery of a writ, summons
or other legal process after three attempts, service had not been accomplished also
termed as service of the process. The final delivery of some other legal notice, such as
pleadings, be sure that a certificate of it is attached to the motion.

Process server means a person authorized by the law or by a court to deliver formally
process to a defendant or respondent.560

Again, in the Concise Law Dictionary,561 Service of Process means, the delivery of
notice of any cause or suit being instituted or of any steps being taken therein to the
party affected thereby or having an interest in the subject matter of the suit.

Process server means one who serves in the manner prescribed by law a summons,
mandate or writ issued by court of law.562

RATIONALE FOR SERVICE OF DOCUMENT

The service of document complies with the principle of Natural Justice, that is, Audi
alteram partem. This means, no man should be condemned unheard. For instance,
when the plaintiff has filed a suit before the court of law, it is a mandatory
requirement that the defendant should be informed of the claim raised against him so
that he can be afforded a chance to reply to such claim. Hence there is requirement of
him to be served with the claims.

No person should be taken by surprise in court proceeding. Whatever is going on or

takes place in the court the other party should be made aware of it. This help to avoid
prejudice to the party. Thus at each stage of court process if there is any new matter
arise, party must be served with such information informing him of what is going on.

It is a fundamental rule of the law of procedure that a party must have a fair and
reasonable opportunity to represent his case. And for that purpose, he must have a
notice of legal proceedings initiated against him. The service of summons in the
defendant is therefore, a condition precedent to a fair trial. If the summons is not
served on the defendant or it does not give him sufficient time to represent his case
effectively, no decree can be passed against him.

559
Blacks Law Dictionary, 8th Ed, p 1399
560
Ibid p.1170
561
Ramanatha, R., (2004), Concise Law Dictionary, 2nd Ed, p.781
562
Ibid p.

295
HOW SERVICE OF DOCUMENTS MAY BE EFFECTED
In this work, attempts have been made to show how courts are involved in serving
different documents to the parties. It must be noted that, these are only few of the
documents which are served by the courts and due to time constraint we could not
exhaust each and every court document.

Pleadings:
Order VI, Rule 1, define pleading to mean a plaint or written statement of defence
(including a written statement of defence filed by a third party) and such other
subsequent pleading as may be prosecuted in accordance with Rule 13 of Order VIII.
In pleading the court document involved are plaint, written statement of defence and
counter claim.

In any civil litigation, a suit is instituted by presentation of a plaint to the court. 563 The
law requires that the plaintiff at the time of filing a suit should furnish the court with
sufficient copies of the plaint necessary to enable the court to serve the same to
defendant or defendants564 or other parties to the suit. After proper presentation of a
plaint by the plaintiff to the court and a case assigned to a specific judge or magistrate
as the case may be, the court will order the issue of summons accompanied with a
copy of a plaint to be served to the defendant through process server or the plaintiff or
his agent requiring him to file a written statement of defence within 21 days from the
date of receiving the summons.565 These documents may be served together with
summons.

Summons:
There are two types of summons. That is, summons to appear and summons to file
written statement of defence. Summons to appear informs the defendant that the
plaintiff has filed a suit against him and calls upon the defendant to appear and answer
the claim on the date, time and place specified on it. On such summons, he will be
required to produce all documents and evidence he intends to rely in support of his
case.566
Summons can be served in the following manners:

By personal service
This is done by delivering and tendering a copy of summons dully signed and sealed
to defendant or each of them, if they are more than one, as the case may be.567 A copy
of the summons must be delivered to the defendant together with the copy of the
plaint and other document after the defendant or agent has been made to sign in an
appropriate place on the summons as evidence that he has been duly served. The
process server (amin) will then return the original copy of the summons to the court,
and will swear to an affidavit stating how or when he dully effected the service on the
defendant or his agent. Such affidavit constitutes sufficient evidence of service.568

563
Order IV Rule 1 of the CPC
564
Order VI Rule 2(1) (a) (b) of the CPC
565
Ibid Rule 1 Para (b)
566
Order V Rule 1 and 4 of the CPC
567
Order V Rule 12
568
Order V Rule 16 and Rule 18

296
Service on agent or manager
In case the defendant has empowered an agent to accept service or where defendant is
not residing in the local limit of the court, the service shall be sufficient on a manager
or agent who at the time of service personally carried on business or worked for such
defendant within such limits.569

Service on adult member of the family

When the defendant is absent from his residence at the time of service of the
summons and there is no possibility of his presence and he has no agent, service may
be made on an adult member of his family but a servant is not regarded as a member
of his family. 570

Affixation
After the process server’s efforts of finding defendant has failed and he is satisfied
after all due and reasonable diligence that he could not find the defendant, such
process server must affix a copy of summons on the outer door or some conspicuous
part of the house in which the defendant ordinarily resides or carries on business for
gain. Having done so, the process server must within 14 days of affixing such copy
return the original to the court stating that he has so affixed the copy, the
circumstances under which he did so, and the name and address of the person by
whom the house was identified and whose presence the copy shall be affixed.

Substituted service
Where the court is satisfied that there is reason to believe that the defendant is
keeping out of the way for the purpose of avoiding service or that for any other reason
summons can not be served on him by the ordinary way, the court will order that, the
summons be served by affixing a copy of it in some conspicuous place in the notice
board of the court house and also on some conspicuous part of the house (if any) in
which the defendant is known to have last resided or carried on business or personally
worked for gain, or in such other manner as the court thinks fit. This is called
substituted service, and is as effectual as if it has been made on the defendant
personally. In such a case, the court must fix such time for the appearance of the
defendant as the case may require.571 The process server will swear an affidavit that
he affixed the summons in the place as directed by the court.

Moreover the court may order service by an advertisement in the newspaper, the
newspaper shall be a daily newspaper circulating in the locality in which the
defendant is lastly known to have actually and voluntarily resided, carried on business
or personally worked for gain.

Service by Post
If the court is satisfied that, to require a summons to served on a defendant in the
ordinary manner or by substituted service may cause undue delay and that the
summons may more conveniently be served by post, the court may order that the
569
Order V Rule 13
570
Order V Rule 15
571
Order V Rule 20

297
summons be served by post572. When the court, or the defendant receives the
acknowledgment purporting to be signed by the defendant or his agent or his agent
refused to take delivery of summons when tendered to him, the court issuing the
summons shall declare that the summons had been duly served on the defendant. The
same principle applies in a case where the summons was properly addressed, prepared
and duly sent by registered post, acknowledgment due; and acknowledgement is lost
or not received by the court within 30 days from the date of issue of the summons.
When the summons sent by registered post is returned with an endorsement “refused”,
the burden is on the defendant to prove that the endorsement is false573

If the court is satisfied that the service is effected by post and duly served to the
defendant such service will be as effectual as if the summons had been served on the
defendant personally.574

In other jurisdiction like India the service of summons can be effected through an
electronic media, such as fax or such other means the court may approve.575

Service Where Defendant is confined in Prison

If the defendant is confined in a prison, the original and a copy of the summons shall
be delivered or sent to the officer in charge of the prison for service on the
defendant.576

Service of the defendant Resides in the jurisdiction of another court and where he
is outside Tanzania
Where the defendant resides within the jurisdiction of another court or in another
state, the summons may be send to the court where he resides577. Such court will serve
summons on the defendant. Moreover, where the defendant reside in a foreign
country, the service of summons may be effected through the political agent there or a
court established there with authority to serve summons578

Service by Plaintiff or Agent

A plaintiff or his agent may himself serve summons on a defendant. In such an event
service may be deemed to have been duly effected if an affidavit is filed by the person
who effected the service stating that he personally served the summons on the
defendant, that the defendant was personally known to him or by exhibiting the
summons or a copy of it endorsed by the defendant with an acknowledgement of
service or giving reasons why such acknowledgement could not be obtained.579

Written Statement of Defence:

This is the document filed by the defendant or his agent or advocate to the court
replying the allegation raised by the plaintiff in his plaint of which he was required to
reply within 21 days. If the written statement of defence is not filed within the
572
Ibid O. V, r 30
573
C.K. Takwan (1997) Civil Procedure, 4th, p 150 and also Order 21 of CPC
574
Ibid O. V, r 21 (2)
575
Acharya, N.K., (2004), Guide to CPC, 1st Ed, p.76
576
O.V, r.24
577
O.V, r.22 & 23
578
O.V, r 29 & 28
579
O.V, r. 31

298
specified time, the defendant has no right to file it later on without the permission of
the court.580 The plaintiff will get the copy of written statement of defence on the date
of mention.

OTHER TYPES OF DOCUMENTS AND ORDERS

Other types of documents and orders, which can be served through the court process
servers includes; judgments, interim orders, decree, ruling, drawn order, chamber
summons accompanied with an affidavit etc

There are instances where the court may direct the party or parties to serve documents
to each other. When this is done, then the other party who is receiving the document
has to sign the original document as evidence that he has received the same. Example
of this documents are like written submission, reply to the written submission and
rejoinder to the written submission. Sometimes the party may serve the other party
documents during the hearing. For instance the documents which the party wants to
rely as evidence but did not annex it when filing the plaint.

CONCLUSION
It can be said that, there are many documents, which can be applied to the court by the
parties in the whole proceedings of the suit, but those which are mentioned above are
the most commonly used. With regards to the manner of servicing those documents, it
is crucial to note that in many instances the parties themselves can engage in the
services of the documents to the other party, this may happen when one cannot afford
to furnish some amount to the court so that his service can be effected by the court
process server.

Qn; The failure to frame issues amounts to procedure irregularity and not
illegality. In the light of this contention, outline the practical importance of
framing issues and consequences of failure to frame issues.

1.0 INTRODUCTION.

In every civil case, it is a common practice that issues are to be framed after the
parties have presented their pleadings. The function of pleading is to ensure that the
questions which are in controversy between the parties should be clearly ascertained
so that each party is aware of what the other party contends and also enables the court
to know what questions it has to decide in the particular suit 581. In the case of
JANMOHAMED UMERDIN V. HUSSEIN AMARSHI AND OTHERS582 it was
stated that the framing of issues is the rule that governs the conduct of a civil
proceeding which neither the court nor counsel is entitled to leave out of account.

The duty of raising the issues rests, under the Civil Procedure Code, on the court. It
should itself go through the pleadings and not depend merely on the draft issues filled
by the parties583. But though the duty to frame issues is cast on the court, the

580
O.VIII, r. 14
581
B.D. Chipeta, (2002), Civil Procedure in Tanzania, p.166
582
(1953) 20 E.A.C.A. 41
583
RUK-UL-MULK SYED ABDUL WAJID V. R VISWANATHAN AIR 1950 MIS 33 (FB)

299
responsibility for framing them should be shared by the pleaders appearing for either
of the parties584.

Issues are those questions on which the parties are not agreed and which the court is
called upon to decide. Issues can also be defined as a point in question at the
conclusion of the pleading between the contending parties in an action.

Issues are to be frame in respect only of those facts which have been alleged by one
party and either denied or not admitted by the other party585, that is to say, a material
proposition of fact or law is asserted or affirmed by one party but denied by the
other586. Each material proposition affirmed by one party and denied by the other shall
form the subject of a distinct issue587.

The issues can be of two kinds or types, that is, they may be issues of law or issues of
fact. The issues of fact are those which their existence depend on evidence while
issues of law on the other hand are legal conclusions derived at after application of the
law to the facts which have been proved.

There are some circumstances in which court may be confronted with issues of both
fact and law. Where the court is of the opinion that the suit or any part of it may be
disposed of on the issues of law only, the court must try those issues first. In which
case, it may, if it thinks fit, postpone the recording of the issues of fact until after it
has disposed of those issues of law. In the case of SINGIDA REGIONAL
TRADING COMPANY V. TANZANIA POST AND TELECOMMUNICATION
CORPORATION588 the court held inter alia that since the issue of law went to the
root of the suit, the court had first to determine that issue of law.

If the court comes to the conclusion that the decision on the preliminary issues of law
will dispose of the entire suit, it will postpone the issues of fact and decide on the
issues of law, and where it turns out that issues of law suffice the disposition of the
entire case then the issues of fact will be left out.

2.0 Framing of Issues.

The assertion that failure to frame issues amounts to procedure irregularity and not
illegality is true. This point can be substantiated by the case of NORMAN V.
OVERSEAS MOTOR TRANSPORT (TANGANYIKA LTD)589 which stated that the
failure to frame issues is an irregularity which is not fatal so long as the parties at the
trial knew what is the real question between them, and evidence is taken on it and the
court considers it.

2.1 Importance of framing issues.

584
BHASKAR V. NARANDAS (1950) 608
585
FATEH MUHAMMAD V. IMAM-UD-DIN (1920) 2 LAH LJ 188.
586
the First Schedule to the Civil Procedure Code, 1966, Order XIV Rule 1(1) when read together with
Order XIV Rule 1(2)
587
Ibid, Order XIV Rule1(3)
588
[1979] LRT n. 11
589
[1959] E.A 131

300
The framing of issues is a very important step because the outcome of the case will
largely depend on issues that have been framed. The following paragraphs show why
courts should frame issues and the importance of doing so.

The issues guide the parties on how to go about in adducing evidence. A party will
not be allowed to adduce evidence which does not go on proving or disapproving the
issues framed. Such evidence will be irrelevant and hence inadmissible. Therefore, the
framing of issues is very important because it will help courts to save time and costs
for hearing matters which are irrelevant to the case.

Apart from guiding the parties on how to go about in adducing evidence, the framing
of issues helps the court to address its mind to specific issues, that is, confines the
court to specific areas in which the issues have been framed. This was the view of the
case of NKALUBO V. KABIRIGE590. However, there is an exception to this general
rule in case the parties knew of the issues but they were not pleaded.

The other importance of framing issues relates to appeals. If the case goes to appeal,
the appellate court has to confine itself to issues framed in the trial court. The court of
appeal cannot determine issues which were not framed during the trial but it shall deal
with issues of law though they were not framed or were abandoned during the trial591.

2.2 Consequences of failure to frame issues.

The failure or omission of framing issues may have two consequences. At the first
place, it may be regarded as procedural irregularity which is not necessarily fatal to
the proceedings592; and the other hand if the court is of the opinion that the failure or
omission of framing issues prejudices the parties, such omission will be fatal593.

The court will not hold that the omission or failure to frame issues was prejudicial to
the parties if it is of the opinion that despite the fact that no issues were framed, the
parties knew what was at issue and produce evidence in what they knew was at issue.
This was also stated in AGRO INDUSTRIES LTD V. ATTORNEY GENERAL594
where it was held that;
“when a trial court allows parties to address it on any issues, the court must
conclusively determine those issues, notwithstanding that the issues were not
in the pleadings”.

Omission or failure to frame issues shall be regarded as prejudicial to the parties

where it results into parties failing to direct evidence to the issues. In such a case if
any injustice occurs it is incurable except by quashing the decision of the court. This

590
[1973] E.A 103 at 105
591
SHAIKH MAKBUL V. UNION OF INDIA AIR 1960 Ori 146.
592
MUHAMMAD YUSUF V. MUHAMMAD YUSUF AIR 1958 MAD 527
593
WALI SINGH V. SOHAN SINGH AIR 1997 CaL 386
594
[1994] TLR 43 (CA).

301
point was discussed in the case of JOSEPH MARCO V. PASCAL
RWYEMAMU595.

3.0 Conclusion.
Basing on what we have discussed above, we are of the opinion that the framing of
issues is very important and that the failure to do the same may either be illegality or
procedure irregularity depending on the facts of each case. Where such omission or
failure to frame issue leads to injustice, then the court will quash the decision made
basing on such omission.

Qn: The basic principle is that so far as possible all evidence in the suit should be
taken viva voce before the trial court. Any one who seeks to have the evidence
taken in any other way is seeking an indulgence of the court and must show good
reasons to justify his application.

Discuss the assertion above.

1.0 INTRODUCTION

Viva voce is a Latin word that stands for ‘with living voice’. ‘By word of
mouth or orally’. In reference to the examination of witnesses, the term means
that oral rather than written testimony is to be taken before the court of law.596

Viva voce, being an oral evidence, is well defined under section 3 (1) of
Tanzania Evidence Act, 1967 (hereinafter referred to as TEA) to mean all
statements, which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry.

2.0 DISCUSSION ON THE RULE REGARDING VIVA VOCE (ORAL

EVIDENCE)

2.1 The General Rule regarding to Viva Voce:

After having seen the definition of viva voce (oral evidence) hereinafter is the
discussion of the rule. This rule is governed by the provisions of Order
XV111 of the Civil Procedure Code, 1966 (hereinafter referred to as CPC).
The said Order XV111 deals with the hearing of suits and examination of
witnesses. This Order enacts the principle of orality of proceedings as
opposed to the principle of documentation which applies in pleadings. Rule 2
(1) of the same Order states that:

“On the day fixed for the hearing of the suit or on any other day to which the
hearing is adjourned, the party having the right to begin shall state his case and
produce his evidence in support of issues which he is bound to prove.”

595
[1977]LRT 59
596
Garner B. A., (2004), Black’s Law Dictionary, (8thed), Thomson West, U.S.A

302
 The other party shall then state his case and produce his evidence, if any, and
may then address the court generally on the whole case, as provided for under
rule 2 (2) of the same Order.

The basic principle regarding viva voce is well stated in the case of
Premchand Raichand Ltd & Another v. Qurray Services of East Africa Ltd. &
Others597 that:
“so far as possible all evidence in the suit should be taken viva voce
before the trial court. Any one who seeks to have evidence taken in
any other way is seeking an indulgence of the court and must show
good reasons to justify his application.” The point of discussion here is
on the issue of what amounts to good reason. In answering the above
issue we are of the view that on the side of the party, there may be
personal reasons, such as ill-health or inability to obtain a visa or the
applicant has to show that the evidence is necessary and the witness
can not be procured to appear before the court of law so as to testify.

The above principle was adopted in the case of Leopold Wolford (Zambia) Ltd
V A.H. Hunter598 The same position of the law is complimented by section 62
(1) of TEA.

2.2 Exception to the general rule:

After having seen the general rule regarding to viva voce, here below is the
exception to the rule that not always the evidence should be adduced orally.
There are circumstances which the evidence can be adduce through written
way or any other way as it deem fit. The following are the circumstances
under which the evidence can be adduced in other way other than viva voce.

The first circumstance is that, there is a time the court accepts evidence by
way of an affidavit as an exception to general rule. An affidavit is a document
which contains sworn statements of facts signed by the deponent before the
commissioner for oaths which can be used as evidence in proceeding before
court.

However, as stated in the case of Standard Goods Corporation Ltd V

Harakhchand Nathu and Co.599 that affidavit based on information must
disclose the source of information, this is not merely matter of form, but goes
to the essential value of the affidavit. It may have been sworn in all sincerity
and the deponent may have been advised as he says, but since the source of
information may have been unreliable, the affidavit can have no evidential
value.

The second circumstance under which the court accepts evidence other than
viva voce is on the point of commission as provided for under order 26 of The
Civil Procedure Code600. Commission can be defined as an authority to
exercise a power or a direction to perform a duty; for example, a commission

597
[1969] E.A. 514
598
[1973] L.R.T 59
599
[1950] 17 E.A.C.A. 99
600
. Act No. 49 of 1966

303
 of a justice of the peace601. Under order 26 rule 1 of the CPC the court may
examine witnesses who can not appear before the court. Under this order the
witnesses are of two types, (a) those who are within the jurisdiction of the
court but can not be compelled as they are protected by law for instance
Diplomats. To know who is protected and who is not, one has to look at the
law. (b) those who are outside of the jurisdiction of the court.

Application for commission may be made either by courts on motion or either

of the parties to move it. The application must be supported by an affidavit
which will contain facts which necessitate commission powers of court as
provided for under order 26 rule 4 of the CPC (supra). The court has power to
issue a commission for a witness who is beyond territorial limits of its
jurisdiction. It may also order commission of a witness who is about to leave
its territorial limits. A person to whom a commission is issued is known as
commissioner who has the power to examine witnesses, record the evidence
and return the records to the court which issued the commission and where it
is possible, the witness will be given the day and time of examination and may
be given a right to cross examination.

However, where a party did not have an opportunity to cross examine the
opponent during the commission, such evidence can not be adduced in court
unless the parties are personally in court.

Another circumstance which the court accept the evidence adduced in other
way than viva voce is through dying declaration as stipulated under section
34(a) of TEA, for the statement made under dying declaration to be admissible
two conditions must exist, these are: (a) the person who made the declaration
is really dead and the second one is that the alleged declaration must be
original and such statement must refer the cause of death or the circumstances
of his death or the transaction leading to his death.

3.0 ADVANTAGES AND DISADVANTAGES OF VIVA VOCE (ORAL

EVIDENCE)
In respect of the above discussion, viva voce (oral evidence), being direct
evidence has its advantages and disadvantages as explained hereinafter:

3.1 Advantages
Viva voce (oral evidence) complies with the ‘Best Evidence Rule’
which requires that oral evidence should be adduced direct; that is to
say, a witness who by the words of mouth appears before the court of
law to testify as provided for under section 62 (1) of TEA.

Secondly, viva voce (oral evidence) gives an opportunity to the

opponent party to cross-examine a witness who has testified so as to
test his demeanor.

Thirdly, viva voce (oral evidence), being a direct evidence, reduces the
risk or tempering with the evidence.

601
. Oxford Law Dictionary, New Edn. P 83

304
 Fourthly, viva voce (oral evidence) enables the court to ask the witness
for more clarification on controversial issues since there is eye to eye
contact.

3.2 Disadvantages
Viva voce (oral evidence) has relative costs due to the fact that it
requires personal attendance of witnesses before the court of law; so
courts and parties incur costs to procure attendance of those witnesses.

Another disadvantage of viva voce (oral evidence) is that, it tends to

delay proceedings because there are some witnesses who are not easily
procured due to unavoidable circumstances, such as illness, diplomatic
immunity, death, etc, hence justice delayed is justice denied.

4.0 CONCLUSION:
By the way of conclusion and for the submissions made thereof, this piece of
writing has the following to say, viva voce being an oral evidence is regarded
by courts of law to be the best evidence to be tendered before it regardless its
exceptions and weakness (disadvantages) as explained in part 2.2 and 3.2 in
this paper.

Qn: You are an advocate for the defendant in a suit in the High Court of
Tanzania Land Division at Dar es Salaam for the recovery of possession of land.
Discuss what course or courses of action you would take in the following
alternatives.
a) The plaintiff has obtained an ex-parte temporary injunction to restrain the
defendant from entering or remaining the land in dispute.
b) The plaintiff’s defense to counter claim contain solely evasive denials.
c) On the date fixed for mediation the plaintiff and his advocate are absent.
d) On the date fixed for hearing of the suit the defendant is admitted at the
Muhimbili Orthopaedic Institute.

OUTLINE

1.0 INTRODUCTION

2.0 MAIN BODY:

Discussion on the issues

3.0 CONCLUSION

Bibliography

1.0 INTRODUCTION

305
The question poses different issues to be dealt with by us, as the advocates of the
defendant. The following are the summary of the issues to be dealt with in the course
of facilitating the defendant to recover the possession of the land in dispute. These
issues are extracted from the instances given in the question.

 The action to be taken in the course of advising the defendant where there is
ex-parte temporary injunction granted by the court against him.
 The course to be taken as the advocates of the defendant where the plaintiff’s
defence to counter claim contain solely evasive denials.
 The course of action to be taken where in mediation both the advocate and the
plaintiff are absent.
 The course to be taken as the advocates of the defendant where at the time of
hearing the defendant was admitted to the Hospital.

2.0 MAIN BODY:

Discussion on the issues

To start with the first issue where there is ex-parte temporary injunction issued against
the defendant, it is better to introduce the key concepts in the issue. The concept of
temporary injunction means a judicial process whereby a party is required to do or to
refrain from doing any particular act.602 Temporary injunction is thus an injunction
issued during the pendency of proceeding. Mulla states that, an injunction is
temporary, for it endures only until the suit is disposed of or until further orders of the
court.603

From the given question as advocates for the defendant before advancing to the
course to be taken as far as ex-parte temporary injunction issued against the
defendant, it is better to put into the contemplation on the requirements for an order
granting temporary injunction. Pursuant to Order XXXVII of the Civil Procedure
Code Cap 33 herein below referred as the CPC, under Rule 1 the conditions are set up
on what to be considered when granting temporary injunction. From the provisions it
is stated that Order granting temporary injunction will issue if the property in dispute
in a suit is in danger of being wasted, damaged or alienated by any party to the suit of
or suffering loss of value by reasons of its continued us. Likewise Order XXXVII
Rule 1 advances by stating that where the defendant threatens or intends to remove or
dispose or his property with a view to defraud his creditors the court may grant
temporary injunction to restrain such act.

The law further is to the effects that before granting the temporary injunction the court
is duty bound to direct notice of application of the same (injunction) to the opposite
party with an exception that if such notice is given will cause undue delay and that the
object of granting injunction will be defeated then such notice will not be given to the
opposite side604. Therefore where the injunction Order is granted by the court without
notice to the opposite party then that will be ex-parte temporary injunction.

Though it is necessary and mandatory for the defendant to be given a notice in regard
to injunction, the court retains discretionary powers to grant ex-parte temporary
602
C.T. Takwani (2004) Civil Procedure p 229
603
V.K.Gupta (2004 )Mulla Code of Civil Procedure p1584
604
Order XXXVII Rule 4 of the CPC.

306
injunction. The plaintiff must show cause why notice should be dispensed with, such
reason can be given viva voce or by court’s instance. This is supported by the case of
IBRAHIM V NGAIZA605 where the judge stated that the granting of temporary
injunction is a matter of discretion of the court and this discretion can be said to have
been judiciously exercised if the court appreciated the facts and applied those facts to
the principle governing issuance of temporary injunction. One of the principles is that
the court should be satisfied that there is the substantial issue that is triable between
the parties and that there is the likelihood that the applicant might be entitled to relief
and whether the status quo should not be preserved until the dispute is investigated.606

In the application for the temporary injunction it is the duty of the applicant to show
that the waste that is going to be occasioned is not an ameliorating waste that it is
going to injure the property and it is substantial. The case of RICHARD WHEELER
V. CLACSTON ALIMAN AND A.C. DOWDEN607 emphasised on the principle by
stating that the waste should not be ameliorating nor trivial, it must be waste of an
injurious character. It must be waste of not only of injurious character but also of
substantially injurious character and if either the waste be real ameliorating waste that
is a proceeding which result in benefit not injury. Then temporary injunction should
be granted.

Therefore if the above requirements are not fulfilled then the Order granting
injunction can be challenged. From the given question, it is said that the defendant has
been restrained from entering or remaining in the land in question, and that the court
granted an ex-parte injunction. However with effects to the scenario there has been no
reason given which fall in the exception given under Order XXXVII Rule 4 of the
CPC which is to the effects that the defendant intended to cause destruction on the
land in any way. Likewise the court decision in favour of the plaintiff as far as the ex
– parte temporary injunction in the discussed cases revealed that even if it is alleged
that there is the likelihood of waste of the property of the plaintiff; that waste must be
substantial not ameliorating.
Due to the above facts therefore as the advocates for the defendants the only way to
serve the situation is to resort to Order XXXVII Rule 5 of the CPC which is to the
effect that;

“Any Order for an injunction may be discharged, or varied, or set aside by

the court on application made thereto by any party dissatisfied with such
Order”.

With the above provision of the law it is seen that the law is very general. The
reliance is on the application to set aside the temporary injunction, but in regard to the
scenario and the position the defendant there was the issuance of the ex–parte
temporary injunction.

This drives us, as the advocates for the defendant to the relevant provision relating
setting aside of the Order of ex – parte temporary injunction; the provision which is

605
(1971) HCD 249
606
The same view is stated in the case of ALLOYS ANTHONY DOWE V ALLY JUYAWATU
(1969) HCD 268
607
(1978) 3A.C 709 at 724.

307
specific in that respect for our case is the application to set aside ex- parte decree608 as
provided under Order IX Rule 13 of the CPC. In setting a decree or a judgement we
shall serve notice to the plaintiff to that regard as the requirement enshrined under
Order IX Rule 14 of the CPC. The application will be made as per Order XLIII Rule 2
of the CPC.

In the second part of the question where the plaintiff’s reply to the counter claim
contains evasive denials it is better as the advocates for the defendant to start by
understanding the concept of counter claim. Counter claim is provided under Order
VIII of the CPC, however the code does not define the concept. A counter claim may
be defined as a claim made by the defendant in a suit against the plaintiff it means the
claim independent of, and separable from, the plaintiff’s claim which can be enforced
by a cross action.609

A counter claim is a claim brought by the defendant in civil proceedings against

plaintiff on a cause of action which arose before the presentation of the written
statement of the defence610. A counter claim is treated as cross suit and is governed by
the rules of pleading as a plaint as laid down in Order VII of the CPC.

From the question given we have been told that, the plaintiffs defence to counter
claim contains solely evasive denials. It should be known that under Order VIII Rule
11(2) of the CPC the rule is to the effect that rules relating to a written statement of
defence by the defendant shall apply to a reply by the plaintiff or a person joined as a
party against who counter claim is made611. Thus as advocates for the defendant we
shall deal with the provisions relating to written statement of defence.

In regard to a reply to the counter claim as stipulated under Order IX Rule 3, a

plaintiff is supposed to deny specifically each allegation of fact which he does not
admit the truth. It is further provided that in every allegation if there is no specific
denial of allegation of fact in a plaint (counter claim) then such facts will be taken as
to have been admitted except where a person is under disability612.

From the question given we have been told that the plaintiff’s defence to counter
claim contains solely evasive denials. Now as provided under Order VIII Rule 4 of
the CPC the law is to the effect that the denials from opposite party do not include a
vague, routine denial and where a defendant denies an allegation of facts in the plaint,
he must not do it evasively, but answers the point of substance. It was held in the case

608
Decree is defined under section 3 of the CPC to mean formal expression of an adjudication which,
so far as regards the court expressing it conclusively determines the right of the parties with regard to
all or any of the matters in controversy in the suit and may be either preliminary of final and shall be
deemed to include the rejection of a plaint in the determination of any question within section 38 or
section 89 but shall not include a) an adjudication which an appeal lies as an appeal from an Order or
b) any Order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit
can be completely disposed of. It is final when such adjudication completely disposes of the suit. It
may be partly preliminary and partly final. (Underscoring is ours)
609
Takwani, Op.cit p 184 referring Concise Oxford Dictionary 1995 p 306
610
OrderVIII Rule 9 of the CPC
611
Order VIII Rule 11(2)
612
Order VIII Rule 5 ibid

308
of THORPE V HOLDWORTH613 that a defendant is bound to deny that any
agreement or any terms of arrangement were ever come to, if that is what he means; if
he does not mean that, he should say that there were no terms of arrangement come to,
except the following terms, and then state what the terms were; otherwise there is no
specific denied at all.

From the discussion above it can be said that when the plaintiff makes evasive denials
of a claim made against him it will be taken that he has admitted the facts of the
counter claim. As advocates of the defendant we will bring it to the knowledge of the
court that the claims against the plaintiff have been admitted by the plaintiff. Thus,
the provision of Order VIII Rule 4 of the CPC will apply.

In regard to the third question which is to the effect that on the date fixed for
mediation the plaintiff and his advocate are absent. As advocate for he defendant we
shall resort to Order VIIIA Rule 5 of the CPC which is to the effect that;

“Where a party to a case or the party’s recognised agent or advocate fails

without good cause …..to appear at a settlement conference … the court shall
make such Orders against the defaulting party, agent or advocate as it deems
fit, including an Order for costs, unless there are exceptional circumstances
for not making such Orders.”

From this provision as advocates for the defendant we are of the view that the plaintiff
has no reasons for non appearance and that the court should make Order such as an
Order for the costs incurred by the defendant in conduct of the case and also the
Orders to the effect that the suit in mediation should be brought to an end in
defendants favour.

The fourth question is on the fact that at the date fixed for hearing the defendant is
admitted to the Muhimbili Orthopaedic Institute. The legal system in Tanzania
follows an adversarial system of dispute settlement. This system emphasises that,
parties are the masters of the procedures in a case because they are presumed to know
their case better than any other person. The court remains as an umpire to facilitate the
settlement of the dispute. This makes the presence/appearance of parties during the
hearing of the case to be essential so as the case can proceed smoothly. In regard to
civil matters as provided under Order VIII Rule 15 of the CPC when all the pleadings
have been presented before the court, then, the court has to fix a date for hearing of
the case.

During the hearing as a general Rule parties are suppose to appear in court either by
personal appearance, or through an advocate or through a recognise agent. To ensure
that the parties appear before the court then summons to appear must be issued to the
respective parties to the suit this is provided for under Order V of the CPC. For the
case with the defendant the court at the time of hearing if there is non appearance of
the defendant, the court is supposed to inquire as to whether the summons was duly
served according to order V and may proceed ex –parte.614

613
(1876) 3 CD637
614
B.D.Chipeta, (2002) Civil Procedure in Tanzania: A Student’s Manual, p 126

309
The summons would have indicated that in case of non appearance the court would
proceed ex – parte. As advocates for the defendant at this instance where there has
been non appearance of the defendant and there is ex-parte hearing therein, we have
two channels to employ;
The first course is pursuant to order IX rule 7 of the CPC that if there was the
adjournment of the hearing of the suit ex-parte by the court and the defendant
appears and assigns good cause of his previous non appearance the defendant will be
heard in answer to the suit as if he had appeared on the day fixed for his appearance
subject to the direction by the court to pay costs or otherwise as the court may decide.
Now the defendant being admitted to hospital is the good cause for his previous non
appearance thus the court has to take it into consideration by allowing the defendant
to proceed with the suit.

In case the ex-parte hearing was concluded the judgement pronounced will be ex-
parte judgement. This was defined in the case of MOHI TEXTILE MILLS V DE
VOEST615 to mean a judgement given when there is no appearance by the party
against whom it is given. The definition which was given in this case however is
subject to qualifications as it covers the plaintiff. The case further defines the phrase
‘a suit called for hearing’ and stated that the suit is called for hearing when it is to be
heard for the first time. Therefore the judgement under Order IX rule 13 even if the
defendant does not appear is not ex-parte judgement if the defendant appeared at the
first hearing.

Back to our situation the defendant was admitted to the hospital, the law is clear that
an ex-parte judgement can be set aside if there are sufficient reasons for doing so. For
instance in the case of OSANGA V. NABUNGO616 it was held that ignorance of
crucial procedure was sufficient ground to set the judgement aside.

However the rule regarding the appearance of parties is to the effect that, appearance
means attendance in person or by an advocate in court on the date stated in the
summons which is also the date for hearing of the suit. Once a defendant is present
either in person or by advocate when the case is called up that is sufficient
appearance.617 In the case of appearance by an advocate, it has been said that a
pleader (advocate) must have been duly instructed and able to answer all material
questions relating to the suit otherwise the party can not be said to appear by pleader.
At this instance the above stated provisions relating to setting aside of the ex-parte
judgement will come into operation.

On the other side as advocates for the defendant, if the case is that we have received
all instructions regarding the suit then, though the defendant is admitted to the said
hospital, the law is that the presence of an advocate in a court amounts to appearance
by a party (Defendant) and thus no consequences for non appearance can follow
afterwards. As advocate we can ask the court to adjourn the case in case it is
important for him to make a personal appearance before the court.

However the rule which allows the advocates to appear for the defendant and ask for
adjournment is not absolute. It has been held in the case of MUKERJEE V
615
[1975] LRT No 17
616
(1965) E.A384
617
B.D.Chipeta op cit p. 121 -122. see also Gupta op cit p 919 - 920

310
MUKERJEE618 that the fact that an advocate appeared on the first hearing to seek an
adjournment was held to be not sufficient ground to set aside an ex-parte decree if
after refusing an adjournment he withdraws from the case and thus the defendant is
left unpresented and hence no appearing619. The same principle is reiterated in the
cases of JESSE KIMANI V MC CONNEL & ANOTHER620and MOSHI
TEXTILE’S Case.

From the above observations as advocates for the defendants we are of the view that
the non appearance by the defendant before the court as a result of sickness is a good
reason to set-aside the ex-parte judgement if such will be issued by the court on
assumption that we had no enough instruction from the defendant. On the other hand
assuming that we had received instruction from the defendant the rules governing
appearance by advocate will come into operation accordingly.

CONCLUSION
Therefore from the discussion above, as advocates of the defendant on a suit in the
high court involving the recovery of the land by the defendant, we are of the view that
such recovery can be achieved by following procedures and laws, depending on the
circumstance given in the question. That, the courses of action to be taken will depend
on the respective instance at a time and also on the circumstances of each particular
case. In our opinion the knowledge of law and procedure is a tool towards the
attainment of justice.

Qn: Explain the scope of the powers of the civil court:

a) To examine the witnesses called by the parties.
b) To summon and examine witnesses on its own accord.

1. O INTRODUCTION.
In our introductory remark it is our duty to define the word examination as used under
the law; this is simply because the word witness is common to the members of the
class.
Examination means the questioning of a witness on oath or affirmation, and in court
of law witness is subject to examination in chief cross-examination and re
examination621.

When the suit comes up for hearing, the party having the right to begin will state his
case and produce his evidence in support of the issues, which he is bound to prove.
The order in which parties will be required to produce evidence depends largely on
the question as to who has the burden of proving a particular issue. In general, the
plaintiff, being the person who asserts facts on which his cause or causes of action are
founded, has the right to begin, under the civil law the right to begin the case is vested
to the plaintiff unless the defendant admits the facts alleged by the Plaintiff as per O
XVIII r 1 of the Civil Procedure Code (herein after is referred to as CPC).

618
(1907) 34
619
Gupta loc cit
620
(1966) EA 547
621
E.Martin, A Dictionary of Law, 5th, 188

311
The duty of adducing evidence whether oral or documentary before the court is upon
the parties and, or their witnesses. Therefore when the court set the day of hearing the
parties may obtain, on application to the court or to such officer of the court appointed
on this behalf, summonses to a person whose attendance is required either to give
evidence or to produce documents, as per O XVI r 1 of CPC, also under Order XVI
rule 2 (1) of CPC provide that;

“The party applying for a summons shall, before the

summons is granted and within a period to be fixed, pay
into court such a sum of money as appears to the court to
be sufficient to defray the traveling and other expenses
of the person summoned in passing to and from the court
in which he is required to attend, and for one day’s
attendance.”

This Order shall be read together with sections 23, 24 and 26 of the CPC
apply so far as the witness summonses are concerned. Section 23 gives
powers to the courts to issue summonses when the suit is duly filed to
the defendant.

This process of the summons to the witnesses is done after framing the
issues, the trial begins and at the trial, the plaintiff and the defendant lead
evidence in support of their claims. The rule that the evidence of
witnesses should not be in is in question and answers form is not
absolute. There are times when the nature and importance of a question
or the importance of an answer to it is such that it is necessary to record
both the question and the answer to it.

As a general rule, all witnesses must be examined in open court622 and

on oath or affirmation, that is, they must swear or affirm (depending on
their religious faith) to tell the truth, the whole truth and nothing but the
truth. The only exceptions to this rule are children of tender years, the
who, if the court is satisfied, after due inquiry, that although they do not
know the nature, value and obligations of oath. Such witnesses may give
evidence without being sworn or affirmed.

There are three stages in examination of witnesses: examination in chief,

in this, the party calling the witness examines him, that is, he asks the
witness all questions the answers to which will support his case.
The aim of examination in chief is to let the witness give all the
materials facts, which the witness knows and on which the case of the
party calling him wholly or partly depends. When examination in chief is
complete, the opposite party is given the opportunity to examine the
witness. This is called cross-examination and its purpose is to test the
accuracy and truthfulness of the witness, to destroy or weaken his
evidence, or to show that the witness is unreliable or to extract from the

622
O XV111 r 4

312
witness evidence, which is favorable to the party. When cross-
examination is over, the party calling the witness will, if he so desired,
examine the witness again. This is called re-examination. The purpose of
it is, so to speak, to mend holes or repair the damage done by cross-
examination.

Section 144 of the Evidence Act provides that order of production and
examination of witnesses will be regulated and governed by the law.
Criminal cases by the criminal procedure code and in civil litigation by
the civil procedure code.

2.0 MAIN BODY

(a)The scope of powers of civil courts to examine the witnesses called
by the parties,
As far as our question is concerned particularly in the power of civil
courts to examine the witness called by the parties, it is the duty of the
parties to call for witness to give evidence and not the duty of the court,
this was held in the case of Generose Ndimbo V B.Y Kapesi623 that it is
the duty of each party to prove the claim in civil case and the court can
only summon witnesses if the court is asked to do so.

Therefore from the case it remain that it is the duty of parties themselves
to call for the witnesses though there are some circumstances in which
the court can do so, these circumstances will be explained later.
Therefore in examination of the witness called by the parties the court
has the following powers in relation to examination.
Firstly the court is responsible for the order of re examination of the facts
or matter, which is new by the adverse party, provided the party has
permission from the court as per s.147 (3) of the Evidence Act.

Also the court have power to permit a witness to be recalled either for
further examination in chief or for further cross examination and if does
so, the parties have right of further cross examination and re
examination, as provided under sect.147 (4) of the Evidence Act, and
also this has been provided under O XVIII r12 of CPC, which provides
that, if sometimes occur that after a witness has given evidence, either of
the parties or the court may be of the view that some material facts to
which the witness could have testified has been omitted, in such event,
the court at any time may re-call such witness and subject to rules of
evidence, put question to him as the court may deem fit.

Further more any person present in the court may be required by the
court to give evidence or to produce any document then and there in his
possession or power as per O XVI r 7 of CPC.

623
[1988] TLR 73

313
The court has power to declare the witness as a hostile witness,
therefore, the party may not declare cross examine his own witness
unless the witness has turned hostile and the court has granted
permission to the party to cross examine the witness.
Therefore the civil courts has power to examine the witnesses called by
the parties, but this is power is limited simply because, it is the duty of
the parties themselves to examine the witnesses as they are the ones who
are responsible in calling them but in doing so the court may in order to
discover or to obtain proper proof of relevant facts, ask any question he
pleases, in any form and at any time of a witness of a parties relevant
fact or irrelevant and neither the parties shall be entitled to make any
objection to any such question or order without the leave of the court to
cross examine any witness upon any answer given in reply to any such
question, this is per s176 of the Evidence Act.

The power of the court under that provisions have the following
limitations which are provided under sub sect 2,in that, the sub sect 1
shall not authorize the court

Firstly to compel any witness to answer any question or produce any

document, which such witness would be, entitled to refuse to answer or
produce under Part II of this Chapter (Evidence Act) if the question were
asked or document were called for by the adverse party.

Also to ask any question, which it would be improper for any other
person to ask under sects 158 or 159, which provides for the court to
decide, when questions shall be asked and when witness compelled to
answer, and also for the questions not to be asked without reasonable
grounds.

Lastly, to dispence with primary evidence of any document, except in the

case excepted by this Act, it is provided that documents must be proved
by primary evidence except in the cases mentioned under the Evidence
Act, and the circumstances are provided under s.67 of the Evidence Act.

(b) The scope of powers of civil courts to summon and examine

witnesses on its own accord.

It is provided by the law that parties are responsible to call witnesses

simply because they are the ones who knows their case and the persons
to assist them as their witnesses, however the law provides on the other
hand that where the court at any time thinks it necessary to examine any
person other than a party to the suit and not called as witness by the party
to the suit the court may, of its own motion, cause such person to be
summoned as a witness to give evidence or produce any document, and
may examine him as a witness,this is provided under O XVI r 14 of
CPC.The procedures underline the fact under the adversarial system it is
the party himself who will prosecute his case, thus he is in a better

314
position to know his witnesses and secure the attendance of his
witnesses.

It is pointed out that the power is normally used to examine expert

witnesses, it should not never be used to build up a party’s case and in
the case of Joseph Marco V P.Rweyemamu624 it was held that in the
case that when a witness is summoned under the provision of r 14 he is
the witness of the court and not a witness for any of the parties, the court
should not use its power under this rule to help to strengthen a party’s
case.

According to the case of Thobias Zenda V Herman Zenda625, r 14

should be exercized very rarely the judge stated that, this rule empowers
the magistrate to call at his own initiative an additional witness at any
stage in the proceeding if he thinks it is necessary to do so, the broad rule
being that it is for the party to present his own case to the court and not
for the court to make a case for litigant. The instances in which the
provisions of this rule may be invoked will depend on the facts of each
case. Furher more in the case of Salum V Said626 it is held that this
being judicial discreation, it has of course, to be exercised judicially, it
must only be exercised where the court is satisfied that it is for the
interest of justice to do so and also it is only rarely that a court will, of its
own motion, in cases such as this seek to clarify an issue by requiring an
additional witness

3.0 CONCLUSION

From the above question it can be noted that, it is a duty of the party to
civil proceedings to present his case, which is discharged by the
investigating to the case, and presenting relevant evidence, the court
under no circumstances should introduce in investigating a party’s case
and summon witness on behalf of a party. Court has power to summon
witness other than those summoned on application by the parties, and the
witnesses so summoned are the witnesses of the court and not of the
parties.

Qn: Discuss the circumstances under which a court of law will make the
following four orders.
(i) Amendment of pleadings
(ii) Discovery and Inspection
(iii) Striking out of pleadings

624
(1977) LRT.59
625
(1977) LRT 23
626
(1970) HCD n 95

315
 (iv) Summary judgement

OUTLINE
1:0 INTRODUCTION

2:0 AMENDMENT OF PLEADINGS.

2:1 The circumstances under which the court of law would make an order of
amendment of pleadings.

3:0 DISCOVERY AND INSPECTION

3:1 The circumstances under which the court of law would make an order of
discovery and inspection.

4:0 STRIKING OUT OF PLEADINGS

4:1 The circumstances under which the court of law would make an order of striking
out of pleadings.

5:0 SUMMARY JUDGEMENTS

5:1 The circumstances under which the court of law would make an order of summary
judgement.

1:0 INTRODUCTION
Courts of law in their process of administering justice are encountered with different
kinds of roles/functions to which they must perform, as they are part and parcel of the
court procedure. In this respect, it is the aim of this presentation to discuss in detail
one of the roles of the court of law, which is concerned with making orders. This
paper will most specifically dwell on the circumstances under which a court of law
would make the following orders: Amendment of pleadings; discovery and
inspection; striking out of pleadings and summary judgement.

2:0 AMENDMENT OF PLEADINGS.

Pleadings is the formal allegations by the parties to a law suit of their respective
claims and defenses, with the intended purpose being to provide notice of what is to
be expected at trial627. Under rules of civil procedure the pleadings consist of a
complaint, an answer, a reply to a counter-claim, an answer to across claim, a third
party complaint, and a third party answer. The same is defined under Order vi Rule 1
of the Civil Procedure Code, hereinafter referred to as the CPC.

2:1 The circumstances under which the court of law would make an order of
amendment of pleadings.
At any stage of the proceedings, the court has the power to allow either party to alter
or amend his pleadings in such a manner and on such terms as may be just. But all
such amendments must be made for the purpose of bringing out for determination the
real questions in controversy between the parties628.

627
Henry C. B, (1991) Blacks Law Dictionary, 6th Ed. p.798.
628
Order vi rule 17 of the civil procedure code Act No.49 of 1966.

316
This rule, like most of the rules governing pleadings, is based on the principle that
pleadings must raise all matters that are in dispute so that either party is aware of what
the other party contends, and so that a multiplicity of legal proceedings is avoided. It
is in this vein that, such amendments must be freely allowed if thereby the real
substantial questions can be raised between the parties and a multiplicity of legal
proceedings avoided. It should be borne in mind that, the making of the amendments
is not really a matter of power of a court but it is the duty of the court to allow such
amendments, so that substantial justice may be done629.

Previously, the proviso under Order vii Rule 11(a), as amended, used to reject a plaint
when and where it did not disclose the cause of action. But the G.N. No. 228 of 1971
now has cured the position under a proviso. That, provided that if the court is satisfied
that if the plaintiff is permitted to amend the plaint, the plaint will disclose the cause
of action if the court may allow the plaintiff to amend the plaint subject to such
condition as to costs or otherwise as the court may deem fit to impose. The same
position was reiterated in the case of HANS NAGORSEN .v. BP TANZANIA
LIMITED630, where Kyando J, ordered the plaint to be amended so that defects
pointed out could be rectified.

Another circumstance is where there is a question of controversy between the parties

in dispute. A point of controversy can arise for instance, where parties in dispute have
not agreed as to what document is to be attached to the plaint as annexure. In support
of this aspect is the case of TANZANIA OLYMPIC COMMITTEE .v. A.
SIMBAULANGA,631 where it appeared that there had been confusion between the
parties as to the annexures to certain documents in the pleadings. In this regard, the
court of Appeal ordered for the amendment of the plaint.

3:0 DISCOVERY AND INSPECTION

In a general sense, discovery is the ascertainment of that which was previously
unknown, the disclosure or coming to light of what was previously hidden, the
acquisition of notice or knowledge of given acts or facts, as in regard to the discovery
of fraud affecting the running of the statute of limitations or the granting of a new trial
for newly discovered evidence632.

Therefore, it is the utter purpose of discovery to make the other party disclose the
existence of documents and the inspection of documents by the party applying for
such discovery. Inspection is to examine, scrutinize, investigate, look into, check
over, or view for the purpose of ascertaining the quality, authenticity or conditions of
an item, product, document, residence, business etc633.

Discovery and inspection are governed under Order xi of the CPC. In any suit the
plaintiff or defendant by leave of the court may deliver interrogatories in writing for
the examination of the opposite parties or any one or more of such parties, and such

629
HARJI KARSAN .v. MONJEE RAGHAVJEE (1943) E.A.C.A.10
630
[1987] TLR n.175 at 183.
631
[1997] TLR 184 (CA)
632
Henry. Op. Cit 322.
633
Ibid. p.547.

317
interrogatories when delivered shall have a note at the foot thereof stating which of
such interrogatories each of such persons is required to answer634.

3:1 The circumstances under which the court of law would make an order of
discovery and inspection.
Interrogatories as a general rule are to be allowed whenever the answer to them will
serve either to maintain the case of the party administering them or to destroy the case
of the adversary. In England, interrogatories are allowed so as to ascertain the nature
of your opponent’s case or the material facts constituting his case, and to support your
own case either directly by obtaining admission or indirectly by impeaching or
destroying your adversary’s case635.

In our jurisdiction, in respect of Order xi Rules 2, 10 and 15(2) of the CPC, the court
shall make order as to discovery and inspection of documents when and so far it is of
the opinion that it is necessary either for disposing fairly of the suit or for saving costs
and must not be unreasonable. Order xi makes provision for the delivery of
interrogatories by either party by leave of the court.

Objection to answering any interrogatory may be taken in the affidavit in answer on

the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose
of the suit or not sufficiently material or on any other ground.

4:0 STRIKING OUT OF PLEADINGS

Striking out is the procedure for attacking pleadings and originating processes on the
ground that they are not correctly formulated. A successful striking out application
may result in an action being stayed or dismissed, the pleading being struck out and
judgement being entered or it may result in the offending part of the pleading being
struck out636.

4:1 The circumstances under which the court of law would make an order of
striking out of pleadings.
Generally, a court may, at any stage of the proceedings, order that any matter in any
pleading which may be unnecessary or scandalous or which may tend to prejudice,
embarrass or delay the fair trial of the suit be amended or struck out 637. There is
usually no difficulty in deciding what matter is necessary. The difficulty lies in
deciding what matter is scandalous, embarrassing or prejudicial to a fair trial of the
suit. A matter is said to be scandalous if it is indecent or needlessly offensive, or is an
allegation made for the malignant purpose of abusing or prejudicing the opposite
party638.

In considering the question whether a pleading tends to prejudice, embarrass or delay

the fair trial of the suit, a liberal interpretation should be given to the words ‘trial of
the suit’. Hence, not only a pleading, which tends to prejudice or embarrass a party at
the actual trial of a suit but also a pleading, which tends to prejudice or embarrass at
any stage of the proceeding in the suit, would be within this rule.

634
Order xi Rule 1. of the CPC.
635
Vinay, K.G. (2005), Mulla Code of Civil Procedure, 14th Ed. p. 949
636
Stuart, S. (1995), A Practical Approach to Civil Procedure, 2nd Ed. P. 361.
637
Order vi Rule 16 of the CPC.
638
Chipeta, B.D (2002) civil Procedure in Tanzania, p.69.

318
Incomplete allegations of facts can be struck off and further, the allegations which are
totally unnecessary and have been made with a view to embarrass the defendants
cannot be permitted. A pleading is embarrassing if it is so drawn that it is not clear
what case the opposite party has to meet at the trial. But a pleading is not
embarrassing merely because it is prolix639.

5:0 SUMMARY JUDGEMENTS

This is a procedural device available for prompt and expeditious disposition of
controversy without trial when there is no dispute as to either material fact or
inferences to be drawn from undisputed facts, or if only question of law is involved.
Any party to a civil action to move for a summary judgement on a claim, counter-
claim, or cross claim when he believes that there is no genuine issue of material facts
and that he is entitled to prevail as a matter of law 640. Summary judgement is a
procedure whereby a plaintiff can apply for judgement against a defendant, usually
shortly after saving a Statement of Claim, without proving the case at trial. The policy
behind the procedure is to prevent delay in cases where there is no defence641.

5:1 The circumstances under which the court of law would make an order of
summary judgement.
Under Order xxxv of the CPC, it is clear that, in a summary suit, the trial begins after
the court has granted leave to the defendant to contest the suit. Having done this, the
court can proceed upto the stage of hearing the summons for judgement and passing
the summary judgement in favour of the plaintiff. This will be done by the court under
two circumstances: If the defendant has not applied for leave to defend or if such
applications has been made but refused; or if the defendant who is permitted to defend
fails to comply with the conditions on which the leave to defend was granted642.

Qn:
The plaintiff, a limited liability company is a prosperous manufacturer of cooking oil
in East African Region. It has sued your client, a natural person, in the High Court of
Tanzania (commercial Division) for unpaid portion of the purchase price of cooking
oil. What course or courses of action will you take on behalf of the defendant before
the hearing in a following alternative?
(a) The registered office of the Plaintiff Company is located in Nairobi, Kenya.
(b) The plaintiff has not, to date, filed reply to the defendant’s counterclaim.
(c) The defendant dies before the date of hearing.

OUTLINE

1.0 INTRODUCTION

2.0 CAUSES OF ACTION TO BE TAKEN ON BEHALF OF THE DEFENDANT

639
Vinay. Op. Cit. P.809.
640
Henry Op. Cit. 1001.
641
Stuart, S. P. 158.
642
Vinay, Op. Cit. P.1552.

319
 2.1 THE REGISTERED OFFICE OF THE PLAINTIFF COMPANY IS
LOCATED IN NAIROBI, KENYA

2.2 THE PLAINTIFF DOES NOT FILE THE REPLY TO THE

DEFENDANT’S COUNTERCLAIM

2.3 THE DEFENDANT DIES BEFORE THE DATE OF HEARING

3.0 CONCLUSION

4.0 REFERENCES

1.0 INTRODUCTION

The hearing of the parties can be effectively done when the pleadings are complete. It
is from the pleadings that the court will frame the issues, and it is from the issues that
the court may hear the parties and make decision basing on evidence presented before
the it. Pleading is a matter, which normally occupies the attention of the parties to the
suit in the early stages. O. VI, r. 1 of the Civil Procedure Code (hereinafter to be
referred as the CPC) defines pleading as the plaint, written statement of defense and
the reply to the written statement of defense an d any other documents which is
submitted to the Court in the process of preparing the suit. Pleading is a legal term
consisting of documents and art of drafting such documents. Pleadings are not
evidence but mere allegations, which will have to be supported by evidence.

The facts of the questions are as follows “the plaintiff, a limited liability company is
prosperous manufacturer in East Africa Region. It has sued your client, a natural
person, in high court of Tanzania (commercial Division) for unpaid portion of the
purchase price of cooking oil.”
We have been asked as to what cause of action we will take on behalf of the
defendant before the hearing in the following alternative situations?
(a) The register office of the plaintiff company is located in Nairobi Kenya
(b) The plaintiff has not, to date, filed reply to the defendant’s counter claim
(c) The defendant dies before the date of hearing.
Part two of this work discusses the cause of action in the above-mentioned alternative
situations, part three is the conclusion and part four is bibliography.

2.0 CAUSES OF ACTION TO BE TAKEN ON BEHALF OF THE

DEFENDANT

2.1 The Registered Office of the Plaintiff Company is located in Nairobi,

Kenya
Since the registered office of the Plaintiff Company is outside Tanzania, he will be
required to pay the security for costs. According to O.XXV r, 1(1) of the CPC If the
plaintiff is residing outside Tanzania and that such plaintiff does not posses any
sufficient movable property within Tanzania other than the property in the suit, the
court may, either on its own motion or on the application of the defendant, order the

320
plaintiff within a time to be fixed by the court, to give sufficient security for payment
of all costs incurred and likely to be incurred in the suit by the defendant. The case of
Farrab Incorporated .v. Brian J Robson and others 643 reiterates this principle,
where the defendant to the suit filed in Kenya made an application for security for
costs on the ground that the plaintiff was a corporation registered and having place of
business at Moshi, Tanganyika. The court granted the application.

2.2 The Plaintiff has not filed reply to the Defendant’s Counter Claim.
In this situation we urge the court to pronounce the judgement in favour of plaintiff
upon such proof of the claim as per O VIII r 14 of the CPC. The law requires that
where any party has been required to present a written statement under sub rule 1of
rule 1 or a reply under rule 11 fails to present the same within twenty one days, the
Court shall pronounce judgement against him or make such order in relation to the
suit or counter claim, as the case may be, as it thinks fit. It is worthnoting that counter
claim is taken as a plaint against the plaintiff and the plaintiff is required to reply in
terms of O. VIII r, 11. In the case of Joe Rugarabamu .v. Tanzania Tea
Blenders644, the respondent filed a written statement of defence along with a
counterclaim. The appellants failed to respond to the counterclaim within time. Before
the suit was held on merit the respondent applied for judgement to be entered on the
counterclaim under O. VIII r, 11 and r, 13 of the CPC. The trial judge granted the
application and entered judgement on the counterclaim. On appeal against the
judgement on the counterclaim the court held that “failure to file a reply to
counterclaim within twenty one days contravened O. VIII r, 11 of the rules of CPC”.

2.3 The defendant dies before the date of hearing

In this situation we will apply to the court to have the legal representative of the
deceased defendant joined to the suit. According to O. XXII r, 4(1) of the CPC, if a
defendant dies and the right to sue survives against him the court on an application
made on that behalf will cause the legal representative of the deceased defendant to be
made a party to the suit and will then proceed with it.

3.0 CONCLUSION
With regards to the above discussed circumstances, we conclude that the courses of
action to be taken in the first instance is for the defendant to apply for the plaintiff to
pay security of costs equivalent to the costs incurred or likely to be incurred. In the
second situation where the plaintiff fails to reply to the defendant’s counter claim, the
judgement will be entered in favour of the defendant. Where the defendant dies before
the date of hearing the law provides for the rights to be represented.

Qn: Asha was seriously injured when traveling as a front passenger in car driven by
Juma, which was involved in a head-on collision with a car driven by Adam.
Asha contemplates filing a suit for damages. Both vehicles were insured by
National Insurance corporation Ltd. In his reply to the demand note Juma
denies liability and blames Adam. In his defence Adam denies liability alleging
his vehicle skidded on a wet road and further alleges Asha was contributorily
negligent in not wearing a seat belt. Asha has already lost earning of Tshs.

643
(1957) E.A 441
644
[1990] TLR 24

321
 50,000 a month over last month and is unlikely to return to work for at least 8
months. She has used up all her savings and is rapidly sinking into debt.

Advise Asha on, whom to sue and the principles that will be applied.

OUTLINE

1.0 Introduction

2.0 Main Body

2.1 Parties to a suit

2.2 Joinder of defendants

2.2.1 Interpretation of ‘common question of law’

2.3 Third Party Procedure

3.0 Conclusion

3.0 Bibliography

1.0 INTRODUCTION

The general rule is that no person is compelled to join as plaintiffs or defendants with
others in one suit. However the law makes provisions for those who want to sue
jointly to do so because we are operating an adversarial system, which system
presupposes an individualistic approach to complaint; in other words, under
adversarial system the parties to proceedings are masters of the procedure.

Joinder of parties has one intention, that of avoiding a multiplicity of suits; and it is in
the interest of the public that litigation should come to a speedy end. Whether one is
going to need the same evidence if several suits were brought, it is in this case
advisable to join the parties. Also to minimize the costs of proceedings or litigation as
well as saving time of the courts are reasons behind joinder of parties.

The court has the duty to control the action; it may order a splitting up of the parties
when it is of the opinion that the causes of action would not be conveniently tried
together, for example the plaintiff would be embarrassed when the suits are going to
be tried jointly. Order 1 rule 2i gives the court such a power, that is, “court may put
plaintiff to an election or order the splitting of the suit. Putting the plaintiff to an
election means the plaintiff is made to chose who should remain in the suit or who
should go. This is absolute discretion by the court but to be exercised judiciously,
only after the court is satisfied that the joinder of the suit would delay the proceedings
or that the plaintiff is going to be embarrassed.

322
2.0 Main body
The question in hand involves who are parties to a suit; the principles of joinder of
parties and Third party procedure. To attempt the question the following issues will
assist to set the scope of the answer:
(i) Whether Juma and Adam can be parties to a suit to be filed by Asha
(ii) Whether Juma and Adam can be jointly sued in a single suit
(iii) Whether the National Insurance Corporation, the insurer of the two
motor vehicles can be brought into the same suit.

2.1 Parties to a suit

For any civil litigation to exist there should be opposing parties, and there has to be a
dispute, that is, subject matter in dispute. There has to be also a cause of action and a
claim for relief.

Where there are opposing parties, the one in whom the cause of action rests is called
the ‘plaintiff’, and the one who against him/her the relief is sought or claimed is
termed as the ‘defendant’. Out of these two categories there are two types of parties
in any civil litigation, namely ‘necessary parties’ and ‘proper parties’.

A necessary party to civil proceedings is that party in whose absence no effective

order can be give. He is a person, if plaintiff ; and if defendant, he is a party against
who a relief is sought. To establish whether a party is a necessary party the important
question is whether the court may issue effective order in his absence or not. This is
because the purpose of civil litigation is to issue an effective order; to avoid a
possibility of issuing an empty decree. There is a formulation of the categorization
found in Saha: “The Code of Civil Procedure” 1908 p. 263 that:
“A necessary party is one without whom no order can be made
Effectively and the proper party is one in whose absence an effective
Order can be made but whose presence is necessary for a complete
And final decision on the question involved in the proceedings.
Against a necessary party there must be a right to some relief in respect
Of the matters involved in the proceeding in question, it must not be
Possible to pass an effective decree in the absence of such party. The test
For determining effectiveness of a decree is whether a decree can be
Executed without the presence of the party in question as regards the
Property sought to be decreed in favour of the plaintiff.”

Without dwelling much on the parties, in a summary, it can be said that, two
principles can be stated in respect of the concept of parties to suit, that is to say: All
necessary and proper parties have to be before the court so as to facilitate the effectual
determination of the matter in dispute – meaning joinder of parties. Furthermore, to
avoid a multiplicity of suits all disputes or questions arising between such parties
should, as far as possible, be determined in one action – joinder of causes.

The above principles being applied in the question in hand, and on determing the first
issue, it can be said that, Juma and Adam, in their reply to Asha’s demand note
disputed Asha’s claims, hence they are the opposing parties. Asha on one side, that
is, a plaintiff, and Juma and Adam on the other side, that is, defendants. Between
these parties there is a dispute, that is, liability to Asha’s injuries caused by the motor

323
vehicle accident involving the two motor vehicles, one driven by Juma and the other
driven by Adam. There is a cause of action and Asha can claim damages for the
injuries she sustained and compensation for loss of income.
In view of the above, it is my considered view that Juma and Adam are the proper
parties (defendants) to be sued by Asha as they are persons whose presence is
necessary for a complete and final decision on the question involved in the claims.
Asha is a necessary party on the side of plaintiff for she is the one in who the cause of
action rests. It is not mentioned in the given material facts whether Juma and Adam
are also the owners of the motor vehicles. Had it been that they are mere drivers, and
that there are different people claimed to be owners of the motor vehicles or
employers of the two, the following advice could have been added, that is, those
owners should also be made parties, that is, they are the necessary parties to the suit
because in their absence no effective order can be given. Otherwise, if Juma and
Adam are both drivers and owners of their vehicles, then each of them will be both
proper and necessary party because an effective judgment can be obtained against
each of them and presence of each is necessary for a complete and final decision on
the question involved in the proceedings. The first issue is therefore answered in the
affirmative.

2.2 Joinder of Defendants

As said above, a person may sue on his own behalf, but subject to certain conditions,
several persons may sue jointly. Similarly, a person may be sued alone, but again
subject to certain conditions, several persons may be sued jointly in a single suit. I
will now proceed to examine the circumstances in which there can be proper joinder
of defendants,

All persons may be joined as defendants against who, a right to relief, in respect of or
arising out of, the same act or transaction or series of acts or transactions, is alleged to
exist, whether jointly, severally or in the alternative; where if separate suits were
brought against such persons, any common question of law or fact would arise. ii It is
not necessary for the joinder of defendants that every defendant should be interested
as to all the reliefs claimed in a suit against him, or as to every cause of action
included in any proceeding against him.iii In other words, it is immaterial that the
causes of action against the defendants are different. A plaintiff is entitled under this
rule to join several defendants in respect of several and distinct causes of action.
Where the court is of the opinion that the joinder would embarrass a defendant or put
him to unnecessary expense, it will order separate trials

As a general rule, then, where claims against different parties involve or may involve
a common question of law or fact bearing sufficient importance in proportion to the
rest of the action to make it desirable that the whole of the matter be disposed of at the
same time, a court will allow the joinder of the defendants subject to its discretion as
to how the action should be tried.iv It was held in an English case of Payne v. British
Time Recordervin which Scrutton, L.J., stated, at page 393:

…Broadly speaking, where claims by or against different parties involve or

may involve a common question of law or fact bearing sufficient importance
inproportion to the rest of the action to render it desirable that the whole of the
matters should be disposed of at the same time, the court will allow the joinder

324
 of plaintiffs or defendants subject to its discretion as to how the action should
be tried.

The second issue is whether Juma and Adam could be jointly sued in single suit. As
stated above, a plaintiff is not compelled to sue any defendant. It is the plaintiff who
chooses who to sue. However, the law allows him/her to join defendants under
circumstances as given under Order 1 rule3.vi Defendants may be joined if the right
of relief against them arises out of the same act or transaction, or a series of acts or
transactions. If separate suits were brought against defendants common question of
facts or law may arise, that is, whether you are going to need the same evidence
against all the defendants.

2.2.1 Interpretation of ‘common question of law’

The position of Order l rule 3 (supra) is construed liberally. It implies that the
question of law is common but the liability of defendant may be separate or general.
In the case of Harwood v. Statesman Publishing Coy Ltd,vii the judge stated:
“You must look at the language of the rules and construe them
liberally and where there are common question of law or fact
involved in different causes of action, you should include all
parties in one action subject to the discretion of the court if such
inclusion is embarrassing, to strike out one or more of the parties.
It is impossible to lay down any rule as to how the discretion of the
court ought to be exercised. Broadly speaking where claims by or
against different parties involve common questions of law or fact
bearing sufficient importance in proportion to the rest of the
action to render it desirable that the whole of the matters should be
disposed of at the same time, the court will allow the joinder of
plaintiff or defendants subject to the courts discretion as to how
the action should be tried.”
How to give a liberal construction of rule, the above case gives a clue, that is,
common questions of fact or law to bear the same evidence. But the court has the
final say to order joinder or strike out.

The case of Abdullah Mohamed v. The official Receiverviii adopts Horwood’s position
in theoretical basis. On practical basis consideration should be the case of Stroud v.
Lawsonix, in which conditions were given on joinder of parties, in other words, these
have to be satisfied:
(i) There must be joint interest in the relief (for plaintiffs) or
against the reliefs (the defendants; and
(ii) To avoid a misjoinder of parties there should be same
defendants in respect of joinder of plaintiffs and same plaintiffs
in respect of defendants.
Chitty, J. stated the principle as follows:
“It is necessary that both these conditions should be fulfilled, that
Is to say, the right to relief alleged to exist in each plaintiff should
be in respect of or arise out of the same transaction and also there
should be common question of law or fact in order that the case
will be within the rule.”

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The case was dealing with joinder of plaintiffs but can be disposed to the joinder of
defendants too. It should be noted that the two conditions must exist jointly, that is,
they are complementary not exclusive. (Both of them must be there, neither can stand
alone). You look at nature of the cause of action or basis for the cause action, which
vests in every one of them separately. Then look whether you are going to need the
same evidence.

In the case at hand, the basis of cause of action which vests in Juma and Adam is that
both being drivers of two different motor vehicles were involved in a head-on
collision which resulted to seriously injuring Asha; the injuries which caused Asha to
suffer loss of earnings and further unlikely to return to work for at least 8 months.
This is a cause of action which vests in each one of them separately. There is a
common question of fact, the liability of the drivers involved in the head-on collision
of the motor vehicles. Basing on the facts of the case given, it is my considered view
that there is a joint interest against the relief (the defendants, that is Juma and Adam)
The two of them separately denied liability of causing injuries to Asha, hence, under
Order 1 rule 3 they can jointly be sued.

In the case of Peter & Co. Ltd. v. Mangalji & Othersx the court was
interpreting Order 1 rule 3 (supra) in pari material with Order 1 rule 5
of Uganda Civil Procedure law. Sherridan, J. pointed out points to be
satisfied before joinder of defendants as follows:
(i) The right to relief in respect of or arising out of the same act or
transaction or a series of acts or transactions must be alleged to
exist whether jointly or severally, and
(ii) The suit must be one where if separate suits were brought
against such persons any common question of law or fact will
arise

It is my view that Asha’s right to relief is in respect of or arising out of

the same act, that is, causing injuries and damages through careless
driving by the two drivers, which resulted to head on collision. The
suit is one where if separate suits are filed against each of them
common fact and law will arise, that is, who is liable.

There is another position which also may allow Asha to sue the two jointly even if she
is not sure of who is her correct defendant. This is found under Order 1 rule 7. xi
According to this provision of law she may join all people she may think are liable to
her and leave it to court to decide who to sue. This has an advantage that the people
who will appear before the court they would show why they should not be joined,
hence Asha would not fail to realize his relief. However there is a disadvantage in
respect of expenses; the one who will be struck out will make her suffer costs payable
to him. Also the impression that she will show to court may create a feeling to the
court that she is not master of her own law.

In the result therefore, the second issue is also answered in the affirmative.

2.3 Third Party Procedure

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In this paragraph, I will endeavour to discuss though in brief the principles of third
party procedure so as to determine the third issue as to whether the National Insurance
Corporation, the insurer of the two motor vehicles can be brought into the same suit.

Third Party Procedure is available to the defendants only and it has to fall within the
four corners of Order 1 rule 14.xii The party brought in by defendant is not an
ordinary party to the suit and the plaintiff has no quarrel with him; not original party.
It is a procedure which facilitate the conduct of two suits simultaneously (at the same
time), that is to say, original suit brought by plaintiff and the second suit brought by
defendant against third party. It was based on Equity but the Judicature of 1881
made the Common Law also to apply it. Its rationale are as follows, that is to say,
third party is based on the political position that, as far as possible all matters relating
to the subject matter of the suit should be determined in one suit. It is also based on
public policy that as far as possible multiplicity should be avoided. By enacting third
party procedure into civil procedure facilitate the bringing of a third party who is not
sued by plaintiff. Third party procedure therefore, has the effect of saving the time of
court and time of parties by allowing the claim of defendant to be entertained
simultaneously. All the facts surrounding the case are put into court at the same time.
There will be no possibility of conflicting decision.
The above rationale of the third party procedure is stipulated in the case of Standard
Securities Ltd. v. Hubbard & Another Tele Insurance Ltd Third Party. xiii Penny
Cuick, J. in this case stated the objects of third party procedure that:
“The objects of the rule are to prevent multiplicity of actions, to enable the
court
to settle disputes between all parties to them in one action and to prevent the
same question from being tried twice with possibly different results.”

Let us take one example. A sues B for damages to his house resulting from a motor
accident between two vehicles driven by B and C. In such a case, B may apply for a
third party notice against D, his insurance company, because B’s claim against D is
connected with the subject matter of the suit between B and A and relates
substantially to the relief claimed by A from B.

In order that a third party may lawfully be joined in a suit the subject matter between
the third party and the defendant must be the same as the subject matter between the
plaintiff and the defendant and the original cause of action must be the same. This
was so held in the case of Yafesi Walusimbi v. A-G.xiv This case was elaborated in
the case of Edward Kironde Kagura v. Casta Pereira,xv also the case of Overseas
Touring (Road Services) Ltd. v. Arica Produce Agency. xvi According to the two
cases, third party procedure is limited to claims for contribution or indemnity only. In
the case of Kironde (supra) the right to indemnity arises mainly out of a contract but it
is not confined to contracts. That is a general situation. But in East Africa there has
been some modification. The courts have accepted the position that a joint tort feasor
proceedings can be introduced in cases of right to indemnity or contribution. This is
by virtue of the case of Champion Motor Spares Ltd v. Barclays Bank D.C.O and
Another.xvii

In England we obtained a summary on the above situation in Birmingham & District

Land Co. v. London and North Western Rly Co.xviii This case was interpreting the
provision of Order l6 rule 48 of the Supreme Court Practice which is similar to our

327
Order 1 rule 14 (supra). According to that case, “in order to bring a case within
Order 16 rule 48 (equivalent to Order 1 rule 14 (supra)) it is not enough that if the
plaintiff succeeds the defendant will have a claim against the third party but defendant
must have against the third party a direct right of indemnity as such which right must
generally if not always arise from a contract express or implied.”

In the case of Parry v. Carsonxix we can find a general rule that, so that a third party
action can be competent the defendant must show that in case he is found liable to the
plaintiff then he has a right to recover against a third party. He shows that in his
affidavit and in his pleadings. Such a possibility exists only when the subject matter
is the same, that is, it is possible when there is a direct connection. In this case the
judge said,
“In order to bring himself within the ambit of Order 1 rule 14 the
applicant must show upon the face of his pleadings and upon his
supporting affidavit that he would be entitled to indemnity from the
third party in respect of the amount which the plaintiff claims from him
in the event of that claim being successful.”
This conclude the discussion on point of law concerning third party. In practice an
application to file a Third Party Notice is made ex parte, that is, in the absence of the
plaintiff and it must be supported by an affidavit. Order 1 rule 14 (2) (supra) does not
indicate the method of application; hence, we fall back to Order XL111 rule 2 (supra),
that the application is by way of a Chamber Summons supported by affidavit.

In the above circumstances and basing on the principles of law therein, I advise the
would be defendants, that is, Juma and Adam, that upon being sued by Asha and after
filing their defence, they should also file an application by way of Chamber Summons
under Order 1 rule 14 (2) (supra) and any other enabling law, for leave to produce a
third party notice. Such an application must be supported by an affidavit which
should state, inter alia, the nature of plaintiff’s case, stage to which the proceedings
have reached, nature of defendants’ claim against the third party. It should also state
the relationship between the defendants and the third party- all those in terms of Order
1 rule 14 (supra). This procedure under Order 1 rule 14 (supra) is intended to save
time of the court and to minimize costs. In the final result then the third issue will
therefore, have been answered in the affirmative.

3.0 Conclusion
In the above discussion it was attempted to show the basis of an advice to Asha on
whom to sue and the principles that will apply. From the discussion therefore, Asha
is advised to sue Juma and Adam for damages and loss of earnings caused by injuries
she sustained from the accident caused by the two. The advice has been extended to
the proposed two defendants that, because the two vehicles were insured by the
National Insurance Corporation Ltd., they should seek to bring into the suit a third
party on grounds of indemnity from the third party in the event the defendants are
held liable.

Qn:
The remedy of temporary injunction is the most abused remedy in the hands of
courts. This is because the courts have so far failed to establish any credible rules
of law for guiding judicial discretion in the granting of temporary injunctions.

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OUTLINE:

1.0 INTRODUCTION.

2.0 THE CONCEPT OF TEMPORARY INJUNCTION.

3.0 CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED.

4.0 PRINCIPLES GOVERNING TEMPORARY INJUNCTIONS.

5.0WHETHER THE REMEDY IS ABUSED BY COURTS FOR FAILURE TO

ESTABLISH RULES GUIDING COURT DISCRETION IN GRANRING THE
SAME.

5.0 CONCLUSION.
6.0 BIBLIOGRAPHY.

1.0 INTRODUCTION.

An injunction is a judicial remedy prohibiting persons from doing a specific act called
a restrictive injunction, or commanding them to undo some wrong or injury called a
mandatory injunction, and may be either temporary, interim or interlocutory, or
permanent. Order 37 deals with temporary injunctions.

Generally, in civil procedure law, injunctions are of two kinds, temporary and
perpetual. Injunction being in the nature of a preventive relief is generally granted
taking note of the equity. However, the court has no jurisdiction to grant by way of
interim relief what could never be granted in the main suit itself. Also, an injunction
can only be granted by a competent civil court and not by any revenue authority under
a tenancy law or by an election tribunal which is not a civil court.645

2.0 THE CONCEPT ASPECTS OF TEMPORARY INJUNCTION.

Temporary injunctions are restraints orders against a party or property of a party

before the suit or matter is finally determined.
The injunction is called temporary, for it endures only until the suit is disposed of or
until the further orders of the court. A temporary or interim injunction may be granted
on an interlocutory application at any stage of a suit.
Order 37 rule 1 of the civil procedure code stipulates that;

Where in any suit it is proved by affidavit or otherwise;

-that any property in dispute in a suit is in danger of being
wasted, damaged, or alienated by any party to the suit of or suffering
loss of value by reason of its continued use by any party to the suit,
wrongly sold in execution of a decree; or

645
Mohd Siraj Ahmad V.State Election Commission AIR 2000 Gau 101

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 - That the defendant threatens, or intends to remove or dispose of
his property with a view to defraud his creditors, The court may, by
order grant a temporary injunction to restraint such act or make such
other order, for the purpose of staying and preventing the wasting,
damaging, alienation, sale, loss in value, removal or disposition of the
property as the court thinks fit, until the disposal of the suit or until
further orders.

Similarly, in any suit for restraining the defendant from committing a breach of
contract or other injury of any kind, whether compensation is claimed or not, the
plaintiff may, at any time after the suit has been filed, and either before or after
judgement, apply to the court for a temporary injunction to restrain the defendant
from committing such breach of contract or injury complained of, or any breach of
contract or injury of a like nature arising out of the same contract or relating to the
same property or right646.

If the court is satisfied that the defendant might commit the breach or injury
complained of by the plaintiff, it will grant the temporary injunction sought on such
terms as it thinks fit. In a recent case of M/S Empire Properties Ltd v Kinondoni
Municipal Council647 whereby the defendant wish to demolish Masaki Building
Complex which would cause irreparable damage to the plaintiff. In order to avoid
such damage the court granted temporary injunction.

In addition, in making orders of temporary injunctions the court may order such term
as to the keeping of accounts and giving security.

Orders of temporary injunction may be made ex parte as provide under order 37 rule
4. The court must in all cases direct notice of the application to be given to the
opposite party. The court before whom such an application is made can only proceed
ex parte where it appear that the giving of such notice would cause undue delay and
that such undue delay would defeat the object for which the application has been
made as shown in Hans Wolfgang Golcher v G. Manager Morogoro Canvas Mill
Ltd648 Maina, J stated that;

“…the rule that the court shall in all cases, except where it appear that the
object of granting the injunction would be defeated by the delay, before
granting an injunction, direct notice of the application to be given to the
opposite party is mandatory… If the opposite party can be served without
delay, as was the position in this case, an ex parte injunction should not be
issued.
”
The same was insisted in the case of Tanzania Knitwear Ltd. V Shamshu Esmail649.
3.0 CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED.

These can be found under order 37 rule 1 of the Civil Procedure Code. Where in any
suit it is proved by affidavit or otherwise;

646
. Order 37 Rule 2(1) of C.P.C.
647
. Civil Case 2006 (Unreported)
648
. (1987) T.L.R. 78.
649
. (1989) T.L.R 48.

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  That; any property in dispute in a suit is in danger of being wasted, damaged
or alienated by any party to the suit, or wrongfully sold in execution of a
decree, or;
 That the defendant threatens or intends, to remove or dispose of his property
with a view to defraud his creditors.
 That the defendant threatens to disposes the plaintiff or otherwise causes
injury to the plaintiff in relation to any property in dispute in the suit;
The court may, by order, grant a temporary injunction to restraint such act or make
such other order, for the purpose of staying and preventing the wasting, damaging,
alienation, sale, loss in value, removal or disposition of the property as the court
thinks fit, until the disposal of the suit or until further orders.

3.0 PRINCIPLES GOVERNING TEMPORARY INJUNCTIONS.

The granting of a temporary injunction under the power conferred by this (rule) is a
matter of discretion. True, it is a matter of judicial discretion. But if the court which
grants the injunction rightly appreciates the facts and applies to those facts the true
principles, then that is a sound exercise of judicial discretion.650 In the case of Ibrahim
v Ngaiza651 it was held that; it a question of discretion of the court, which discretion
must be exercised judicially by appreciating the facts and applying them to the
principles governing issuance of temporary injunctions.

The court can grant a temporary injunction in exercise of its inherent powers under
section 95. Where a suit was dismissed for default and application was made for the
restoration of the suit, though Order 37 rule I cannot be involved, yet the court can
grant an interim injunction under section 95 in the interest of justice.

The court in granting temporary injunction must first see that there is a bonafide
contention between the parties, and on which side, in the event of success, will lay the
balance of inconvenience if the injunction does not issue. Or as stated in the judgment
of Cotton LJ in Preston v. Luck,652 to entitle a plaintiff to an interlocutory injunction,
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 a plaintiff is entitled to relief.
The real point upon an application for a temporary injunction is not how the question
ought to be decided at the hearing of the case, but 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 disposed of.

Furthermore where a perpetual injunction is sued for, and the plaintiff applies for
temporary injunction, the court should grant a temporary injunction if the effect of not
granting such an injunction will be to deprive the plaintiff forever of the right claimed
by him in the suit. The object of injunction is to preserve status quo. In issuing a
temporary injunction, the tests to be applied are:

650
White CJ in the case of Subba V. Haji Badsha (1903) ILR 26 Mad 168,174.
651
.(1971) HCD n. 249.
652
(1887) 27 CD 497,506; Babu Rameshwar Prasad Singh v. Md Ayyub AIR 1950 Pat 527.

331
 (i) Where the plaintiff has a prima facie case;
(ii) Where the balance of convenience is in favour of the plaintiff; and
(iii) Whether the plaintiff would suffer an irreparable injury if his prayer
for temporary injunction is disallowed.

The phrases ‘prima facie case’, balance of convenience’, and irreparable loss’ are
words of width and elasticity to meet myriad (countless/multitude) situations
presented by man’s ingenuity in given facts and circumstances but they must always
be hedged with a sound exercise of judicial discretion to meet the ends of justice.653

A prima facie case implies the probability of the plaintiff obtaining relief on the
material placed before the court. Every piece of evidence produced by either party has
to be taken into consideration in deciding the existence of a prima facie case. For
establishing a prima facie case, it is not necessary for the party to prove his case to the
hilt (as much as possible) and if a fair question is raised for determination, it should
be taken that a prima facie case is established.654

The plaintiff must establish that the balance of convenience in the event of
withholding the relief of temporary injunction will, in all events exceed that of the
defendant in case he is restrained. The plaintiff must also show a clear necessity for
affording protection to his alleged right which would otherwise be seriously injured or
impaired. The principle of balance of convenience implies the evenly balancing of
scales.

The term ‘irreparable injury’ means injury which is substantially and could never be
adequately remedied or atoned for by damages, injury which cannot possibly be
repaired.655 It implies a substantial and continuous injury for which there does not
exist any standard for ascertaining the actual damage likely to be caused. Irreparable
injury, however, does not mean that there must be no physical possibility of repairing
the injury, but means only that the injury must be a material one that cannot be
adequately remedied or compensated by way of damage. Diversion of funds from a
charitable organization is held to be an instance of irreparable injury.656

Application of these principles was shown in the case of Hans Wolfgang Golcher v
General Manager of Morogoro Canvas Mill Limited657. In the case, the court accepted
the appellant submissions that the ex-parte temporary injunction was issued against
known principles governing temporary injunctions. Learned counsel submitted that
an applicant for an interim injunction must establish a prima facie case with a
probability of success and that the facts must show that if a temporary injunction is
not granted, the applicant would suffer irreparable injury which cannot be adequately
compensated by an award of damages. He cited the case of Giella v Cassman Brown
H and C. Ltd [1973] EA 358 at page 360.

653
Dalpat Kumar V. Prahlad Singh AIR 1993 SC 276
654
Gadadhar Mishra v Biraja Devi AIR 1999 Ori 49
655
Multichannel India Ltd v Kavitalaya Productions Pvt Ltd AIR 1999 Mad 59
656
Gadadhar Mishra v Biraja Devi AIR 1999 Ori 49
657
Supra

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Under O 37, r 1 the court has the power to grant an ex parte order, however the same
should be granted only under exceptional circumstance. The factors which should
weigh for the grant of exparte injunction are:
 Whether irreparable or serious mischief will ensue to the plaintiff;
 Whether refusal of ex parte injunction would involve greater injustice than the
grant of it would involve;
 The time at which the plaintiff first had notice of the act complained of;
 Whether the plaintiff had acquiesced for sometime;
 Whether the application is made in utmost good faith; and
 In any case, an ex parte order even if granted must be for a limited period of
time.

The general principles of balance of convenience, prima facie case and irreparable
loss would also be considered by court.

The principles on the bases of which application for temporary injunctions are granted
or refused are well settled in the case of Attilio v Mbowe658, George, CJ restated the
principles in the following terms:

It is generally agreed that there are three conditions which must be satisfied
before such an injunction can be issued:
i) There must be a serious question to tried on the fact alleged and a
probability that the plaintiff will be entitled to the relief prayed,
ii) That the courts interference is necessary to protect 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 withholding of the injunction than will be
suffered by the defendant from the granting of it…the court must be
satisfied that the damage which the plaintiff will suffer will be such
that mere man compensation will not be adequate.

He added that a temporary injunction will normally be granted only if the whole point
of the perpetual injunction claimed will be defeated if the temporary injunction is not
granted.

The case of T.A. KAARE v GENERAL MANAGER MARA COOPERATIVE

UNION659 presented the same view. The court held inter alia;

…Before granting a discretionary interlocutory injunction the court should consider:

(a) Whether there is a bonafide contest in between the parties.
(b) On which side, in the event of the plaintiff's success will be the
balance of inconvenience if the injunction does not issue, bearing in mind the
principle of retaining immovable property in status quo.
(c) Whether there is an occasion to protect either of the parties from
injury known as "irreparable" before his right can be established. "Irreparable Injury"

658
(1969) HCD n.284.
659
(1987) TLR n. 17

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means that the injury will be material i.e. one that could not be adequately remedied
by damages.

4:0 WHETHER THE REMEDY IS ABUSED BY COURTS FOR FAILURE TO

ESTABLISH RULES GUIDING COURT DISCRETION IN GRANTING THE
SAME.

It is our observation, as we have discussed earlier that granting temporary injunction

is the matter of court discretion. Having such discretions, the court however is
initially required to act judicially. Moreover, there are laid down principles which the
court must abide with when exercising the discretion. These were discussed with
under part 4 of this work.
Likewise, Ex parte orders of temporary injunctions must not be made at the whim of a
court. Rule 4 of Order 37 of the Civil Procedure Code provides for the issuance of
notice of the application to the opposite party. This was also discussed under part 2 of
this paper.

The granting of a temporary injunction under the power conferred by this (rule) is a
matter of discretion. True, it is a matter of judicial discretion. But if the court which
grants the injunction rightly appreciates the facts and applies to those facts the true
principles, then that is a sound exercise of judicial discretion.660

Temporary injunction is a matter of discretion which, Has to be judicially

exercised.661 In the case of Ibrahim v Ngaiza662 it was held that; it a question of
discretion of the court, which discretion must be exercised judicially by appreciating
the facts and applying them to the principles governing issuance of temporary
injunctions.

Injunctions and stay orders should not be granted mechanically without realising the
harm likely to be caused to the opposite party and it is not proper to burden the other
party by saying that the other party can get the stay order vacated as stated in DDA v
Skipper Construction Co. (Pvt) Ltd663.

From the foregoing discussion, we are of the opposite view from the view presented
in the question. The courts establish principles which the court has to apply while
exercising discretion on granting temporary injunction. In circumstances which the
court grant the same without regarding those rules, and where the party is dissatisfied
with the injunction order, he can make application to se aside the order. This is
provided for under rule 5 of order 37 of the civil procedure code. In India injured
party has the right to appeal against the order. A court of appeal may interfere with an
order relating to injunction where the action is arbitrary or passed without
consideration of the ingredients necessary for the grant of injunction664.

4.0 CONCLUSION.

660
White CJ in the case of Subba V. Haji Badsha (1903) ILR 26 Mad 168,174.
661
Attorney General V Maalim Kadau and 16 Others
662
.(1971) HCD n. 249.
663
. (1996) AIR SC 2005.
664
. UP Awas Evam Vikas Parishad v N.V Rajagopalam Acharya (1989) AIR 125 at pp 127-29.

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In several instances, like in granting orders of temporary injunctions, courts are vested
with discretionary powers. It is a rule of law that discretionary powers of the court
should be applied judicially while regarding the circumstances of the case .Courts
should not be guided with self interests. In such circumstances, courts have been
trying to establish principles which will guide the court while exercising discretion.

Qn: It is good luck and quite legal to convert the ones personal use and property
that fall into ones hands as long as the parties purporting to be the true owners
of the property are quarreling over the ownership of the said property. The best
one can tell the two quarreling parties is that all liars and the law has no remedy
for them.

Do you agree with the above statement as the true exposition of the law?

OUTLINE

1.0 INTRODUCTION
1.1Statement in respect of the question
1.2What is interpleader suit
1.3Law governing interpleader suit

2.0 MAIN BODY

2.1Statement in respect of the quotation from the question.
2.2Reasons for disagreement with the quotation from the question.
2.3Who may not institute Interpleader suit
2.4Conditions to be satisfied before an Interpleader suit can be instituted
2.5How Interpleader suit is framed and its proceedings.
2.6Who may not institute interpleader suit
2.7Rationale for Interpleader suit

3.0 CONCLUSION

REFERENCE

1.0 INTRODUCTION
Where two more people have an adverse claim all to a particular identifiable sum of
money, property movable or immovable from another person who claims no interest
therein other than charges or costs such person may institute an interpleader suit
against the claimants so as to invite the court of law to determine the true owner of the
said sum or property and of obtaining indemnity for himself. That being the case the
question asked falls under Interpleader suit.

To interplead means to litigate with each other to settle a point concerning a third
party.665 In Halsbury’s Laws of England it has been stated that where a person is

665
Concise Oxford Dictionary, 1995,p.712

335
under liability in respect of any money, goods or chattels and he is, or expects to be,
sued for or in respect of that debt or money, or those goods or chattels, by two or
more persons making adverse claims thereto, he may apply to the court for relief by
way of interpleader666.

An interpleader suit is a suit in which the real dispute is not between a plaintiff and a
defendant but between the defendants who interplead against each other, unlike in an
ordinary suit In an interpleader suit, the plaintiff is not really interested in the subject
matter of the suit.667 Section 63 of the Civil Procedure Code enacts that two or more
persons claiming adversely to one another same debt, sum of money or property
movable or immovable, from a person who does not claim any interest therein and he
is ready to pay or deliver the same to the rightful claimant, may file an interpleader
suit.

Thus for example A is in possession of car but he claims no interest in the car himself,
and is willing to hand it over to the rightful owner. The car claimed by X and Y.A
may file an interpleader suit against X and Y and the court will decide as to who is the
rightful owner of the car as between X and Y.

The law governing interpleader suit is the law governing procedure in civil litigation
i.e Civil Procedure Code, in our jurisdiction is Section 63 read together with Order
XXXIII of the Civil Procedure Code.668

2.0MAIN BODY
2.1Statement in respect of the quotation from the question.

With the true exposition of law we do not agree with the statement that it is good luck
and quite legal to convert to ones personal use any property that falls into ones hands
as long as the parties purporting to be the true owners of the property are quarrelling
over the ownership of the said property. The best one can tell the two quarrelling
parties is that all liars and the law has no remedy for them.

2.2Reasons for disagreement with the quotation from the question.

We do not agree with this statement on the sense that where individuals legal rights
are in dispute such as right to property always court is invited to determine such rights
and as long as they are legal rights law must have remedy toward such individuals.
Also the law governing civil litigation in Tanzania provides for the institution of a suit
to deal such cases whenever arose.
S.63 of Civil Procedure Code provides
’’Where two or more persons claim adversely to one or another the same debt, sum of
money or other property, movable or immovable, from another person who claims no
interest therein other than for charges or costs and who is ready to pay or deliver it to
the rightful claimant, such other person may institute a suit of interpleader against all
the claimants for the purpose of obtaining a decision as to the person to whom the
payment or delivery shall be made and of obtaining indemnity for himself:
666
Halsbury’s Laws of England,(4th Edn), Vol.37 p.200,para264
667
Mulla;Code of Civil Procedure,(2005) p.417
668
Cap 33R.E2002

336
Provided that where any suit is pending in which the rights of the parties can properly
be decided, no such suit of interpleader shall be instituted’’
2.3 Who may institute Interpleader suit
He who institutes interpleader suit is the one in possession of the property.
Interpleader suit is not suit of ordinary nature because a person who institutes it has
no cause of action, that no legal right violated against him, he has not claimed a
remedy against anybody. He claims no interest in the property he posses, except
charges and interest of handling such property which does not belong to him. He
therefore wants the court to determine who is rightful owner of such property. No
question can arise between him and the claimants over the ownership. Actually, he is
ready to deliver such property to the rightful owner.

2.4 Conditions to be satisfied before an Interpleader suit can be instituted

There are conditions, which must be satisfied before an interpleader suit can be
instituted.
1.There must be some debt, sum of money or other property movable or immovable in
dispute;
2.Two or more persons must be claiming it adversely to one another;
3.The person from whom the debt, money or property is claimed must not be claiming
interest therein other than the charges and costs and he must be ready and willing to
pay or deliver it to the rightful claimant; and
4.There must be no suit pending wherein the rights of rival claimants can properly
adjudicated.669
5.There must be no collusion between the plaintiff and any of the defendants.

When it is said that there must be no collusion between the plaintiff and any of the
defendants it means in such suit the plaintiff must be in an impartial position. If he has
in some way, identified himself with one of the parties in the sense that it will make a
difference to him one of them succeds, an interpleader suit will not lie. This is the
provision of Order XXXIII,Rule 1 (c).
As such party who has taken an indemnity from one of the claimants is not entitled to
file an interpleader suit as held in the case of Jugnath vTulka.670
In this case, A had a sum of Rs.10, 000 which sum was claimed from him both by X
and Y, advesly to each other. A thus instituted an interpleader suit against X and .It
was found at the hearing that A had entered into an agreement with X before the suit
was instituted, that if X succeeded in the suit, he would accept from A, R.s 75,00 only
in full of satisfaction of his claim. Here A had an interest in the subject matter of the
suit by virtue of his agreement with X.He was therefore not entitled to institute an
interpleader suit and accordingly his suit was dismissed.

These conditions are also reiterated in the case of Sargent vGuatama671 while
a(Revised) Rules of Kenya, which is parimateria to our s.63, and O.XXXIII of our
Civil Procedure Code. In this case it was held that in an intrpleader suit there are
essentials as set out under s.58 of theCivil Procedure Act are that where there are two
or more persons claiming the same debt or sum of money from another person who
claims no interest therein save for any charges or costs. The proceedings may be
instituted and the only limitation to the court’s power to grant the application are
669
Takwani C.K., Civil Procedure p.299
670
(1908) 32 Bom.592 as cited in Jain P.M.,The Code of Civil Procedure p.250
671
(1968) E.A338

337
those set out in r.2 of O.33 of the Civil Procedure (Revised) Rules 1948 of Kenya to
the effect that the applicant must satisfy the court by affidavit or otherwise that
(a) the applicant claims no interest in the subject matter in dispute other than
charges or costs
(b) there is no collusion between the plaintiff and any of the claimants
(c) the applicant is willing to do or transfer the subject matter into court or dispose
of it as the court may direct

2.5How Interpleader suit is framed and its proceedings

O.XXXIII of our Civil Procedure Code lays down the procedure for interpleader suits.
Under r. 1 of this Order it provides among other things plaint shall contain the
following;
In every suit the plaint shall in addition to other statements necessary for plaints state
(a) that the plaintiff claims no interest in the subject matter in dispute other than
for charges or costs;
(b) the claims made by the defendants severally; and
(c) that there is no collusion between the plaintiff and any of the defendants.
After institution of the suit the court may order the plaintiff to deposit the amount or
place of property in the custody of the court before he can be entitled to any order in
the suit, as provided under r 2 of O.XXXIII.
At the first hearing court declare that the plaintiff is discharged from all liability,
award him costs and dismiss him from the suit, but if court thinks that justice so
require it will retain all the parties until the final disposal of the suit; r 4 (1) (a),(b) of
the same Order.
On the basis of the evidence available the court may adjudicate the title of thing
claimed. Where it is not possible, the court may direct that an issue or issues between
the parties be framed and tried, one of the claimants be made a plaintiff and the suit
shall proceed in an ordinary manner; r 4(2), (3) (a) (b)
2.6 Who may not institute an interpleader suit.
There is certain category of persons who may not institute interpleader suit. Normally,
agents or tenants shall not be permitted to file an interpleader suit against their
principles and landlords except in circumstances where the disputes among the
principles and the landlords are such which the agent or tenant cannot solve. If there
be any honest doubt to which of the persons claiming to be landlords in cases of
succession on the death of the original landlord, the tenant can file an interpleader
suit. Simirlarly, where the agents entertains a genuine doubt as to which of the
successors of the deceased principal is entitled to receive the amounts, the agent can
file an interpleader suit as provided under O.XXXIII, r 5 of CPC.672

2.7Rationale for Interpleader suit.

The rationale behind filing an interpleader suit is to get claims of the rival defendants
adjudicated. It is the process wherein the plaintiff calls upon the rival claimants to
appear before the court and get their claims decided. The decision of the court in an
interpleader suit affords an indemnity to the plaintiff on the payment of money or
delivery of property to the person whose claim has been upheld by the court.673

672
Also see Acharya N.K., Guide to CPC p.234
673
Groundnuts Extractions Export Development Assn.v State Bank of India (1977) 79 Bom LR
184 as cited in Takwani C.K op.cit

338
3.0 CONCLUSION
With the true exposition of law we disagree with the statement that it is good luck and
quite legal to convert to ones personal use any property that falls into ones hands as
long as the parties purporting to be the true owners of the property are quarrelling
over the ownership of the said property. The best one can tell the two quarrelling
parties is that al liars and the law has no remedy for the them. We do not agree with
this statement on the sense that where individuals legal rights are in dispute such as
right to property movable or immovable always court is invited to determine such
rights and as long as they are legal rights law must have remedy toward such
individuals. That being the case the law governing civil litigation in Tanzania; The
Civil Procedure Code under s.63 read together with O.XXIII of the same Code
provides for the institution of an interpleader suit to deal such cases whenever arose.

339
BIBLIOGRAPHY

CONSTITUTIONS

Tanganyika Order in Council 1920 (22/7/1920)

Tanzania Government of, the Constitution of United Republic of Tanzania 1977 as

amended from time to time, the Government Printers Dar
es Salaam

STATUTES

Tanzania Government of, the Civil Procedure Code, Cap 33 R.E 2002, the
Government Printers, Dar es Salaam.

Tanzania Government of, Courts (Land Dispute Settlement) Act No 2 of 2002, the
Government Printers, Dar es Salaam.

Tanzania Government of, the Employment and Labour Relations Act No 6 of

2004, the Government Printers Dar es Salaam

Tanzania Government of, the Judicature and Application of Laws Act, Cap 358
R.E 2002, the Government Printers, Dar es Salaam

Tanzania Government of, the Land Act NO 4 of 1999, the Government Printers, Dar
es Salaam.

Tanzania Government of, the Labour Institution Act no 7 of 2004, the Government
Printers, Dar es Salaam.

Tanzania Government of, the Magistrate Court Act No 2 of 1984, the Government
Printers, Dar es Salaam.

Tanzania Government of, the Written Laws (Miscellaneous Amendment) Act No 3

of 2002, Government Printers Dar es Salaam.

Tanzania Government of, the Written Laws (Miscellaneous Amendment) Act No 4

of 2004, Government Printers Dar es Salaam.

Tanzania Government of, the Civil Procedure Code, Cap 33 R.E 2002, the
Government Printers, Dar es Salaam.

340
BOOKS
Blacks, H.C. (1991), Blacks Law Dictionary, St. Paul Minn West Publishing Co.
United States of America.

Chipeta, B.D, (2002), Civil Procedure in Tanzania: A Student’s Manual, Dar es

Salaam University Press, Dar es Salaam.

Gupta, V.K, (2004) Mulla Code of Civil Procedure, 14th edn, Lexis Nexis, New Delhi.

Gupta S, (2004), The Code of Civil Procedure, Wadhwa and Company Nagpur, New
Delhi.

Jain, M.P, (2004), M.P Jain’s the Code of Civil Procedure, Wadhwa and Company
Nagpur, New Delhi.

Sime, S (1995) A Practical Approach to Civil Procedure, 2nd Ed., Blackstone Place
Limited, London.

Takwani, C. K, (2003), Civil Procedure, 5th edn Eastern Book Company, Lucknow.
.
MIMEO
Lecture notice for Civil Procedure by Dr. Masumbuko Lamwai

341
 SALE OF GOODS QUESTIONS AND ANSWERS.

Qn: The contract of sale of goods entails the transfer of title in property from the
seller to the buyer. Discuss the rules which govern the transfer of title from
the seller to the buyer

Table of contents
1.0 Introduction: The Concept of the contact of sale of goods
2.0 Main Body
- The discussion on the rules as to the transfer of property in goods.

3.0 Conclusion
Bibliography

1.0 INTRODUCTION

In our daily life we usually enter into different types of contracts one of them being
the sale of goods contract. The sale of goods contract is defined under the Sale of
Goods Ordinance674 (herein below referred as Cap 214) as a contract whereby the
seller transfers or agrees to transfer the property in goods to the buyer for a money
consideration, called the price. The contract of sale of goods may be either absolute or
conditional675.

2.0 MAIN BODY.

In a contract of sale the transfer of property in goods i.e. ownership has to be

ascertained so as to know at what time the property in goods passes to the buyer. The
ascertainment to know as to when ownership is transferred is of paramount
importance as it answers the following questions as far as property is concerned; that
at whose risk the goods are at a given moment, who can pass a good title by resale/
other dealings with the goods and to whom the goods belong in the event of
bankruptcy of the buyer before the payment of the price.

The general rule as far as the above proposition is that: unless otherwise agreed, the
goods remains at seller’s risk until the property therein is transferred to the buyer,
whereupon the goods are at the buyer’s risk whether delivery has been made or not. In
that regard therefore the ascertainment as to the transfer of ownership has been dealt
with by the rules provided under section 20 of Cap 214.

To start with the first rule in regard to the transfer of property in goods entails that;
where there is unconditional contract for sale of specific goods in a deliverable state,

674
Section 3 (1) of the sale of Goods Ordinance cap 214 of 1931
675
Section 3 (2) ibid

342
the property in goods passes to the buyer when the contract is made, even though the
time of delivery or time of payment or both is postponed.

This rule entails that where the goods in a deliverable state are identified and
ascertained by the buyer and the transaction is unconditional the property in goods
passes to the buyer as was stated in the case of SADRU H SAID C/O SIDI V R676. In
this case where the appellant sold the car to the complainant and after the payment of
the price was completed the motor vehicle remained at the premises of the seller who
in turn shifted the motor vehicle to the other place. The court held that The appellant
was liable on theft against section 265 of the penal code as the property in goods has
passed to the buyer pursuant to section 20 rule I of Cap 214 that in a contract of
unconditional sale of specific goods in a deliverable state the property in goods passes
to the buyer at the time when the contract is made.

The second rule in sale of goods stipulates that where there is a contract for the sale of
specific goods and the seller is bound to do something to the goods for the purpose of
putting them into a deliverable state, the property does not pass until such thing is
done and the buyer has notice thereof677. This rule is to the effect that title or property
in goods will not pass at some instances unless some conditions are first fulfilled by
the seller and thus any thing that happens there after will be at the sellers risk unless
the conditions are fulfilled. These conditions are subject to the agreement by the
parties in the respective contract.

In the case of CARLOS FEDERSPIEL& COSA V CHARLES TWIGG & CO

LTD678 the court held that where the risk is still on the seller this may be evidence
that the property has not passed. Blackburn J, in the case of ALLISON V. BRISTOL
MARINE INS. CO LTD679 stated that an obligation to insure placed upon one party
by the contract is also an indication that he bears the risk and it has been said that this
is an indication that he also has the property.

This was further stated by court in the case of ABDERSON V. RYAN, that the
property is not to be passed to until the repairing have been done. So according to this
case repairing was the condition to be fulfilled before the delivery of the goods and
any thing that happened before the repairing is upon the sellers’ risk. The rule was
also emphasized in the case of UNDERWOOD V. BURGH CASTLE BRICK &
CEMENT SYNDICATE680. Where it was held that the property in the engine had
not passed to the defendants, as the plaintiffs were bound to do something which they
had not done for the purpose of putting the engine into a deliverable state. The facts of
the case were that thee owners of engine agreed to sell it at a price ‘free of rail’ in
London. It weighed 3o tons thus before it could be delivered on rail it had to be
detached and dismantled. The sellers detached it but in loading it on a truck they
damaged it by accident, so that the buyers refused to accept it. And thus the sellers
sued.

676
[1980] TLR 265
677
Section 20 rule II ibid
678
[1957] 1Llyod’s Rep 240 at 255
679
[1876]1 App case 209, at 229
680
[1922]1 K.B

343
In case of the contract of sale of specific goods, S 20 rule III of Cap 214 provides that,
where there is contract of sale of specific goods in a deliverable state but the seller is
bound to weigh, measure, test or to do some other act or thing with reference to the
goods for the purpose of ascertaining the price, the property does not pass until such
act or thing is done and the buyer has notice thereof.

This rule applies only to the acts, which must be done by the seller; therefore the law
has imposed duty on the party of the seller that, he owes the duty to adhere those
terms provided within the provision such that he must weigh, measure and test for the
purpose of determining the price contrary to that the seller will be breaching the law
and hence can not reject the commodity if returned. However the rule deals with cases
where the passing of property is conditional upon the performance of some acts with
reference to the goods. Therefore the presumption embodied in this rule is probably
somewhat weaker than those in rule I & II because it is easy to imagine circumstances
in which the parties intend the property to pass at once, especially if the price has
been paid. This can be illustrated IN LORD ELDON V HEDLEY BROS681 where
sold the haystacks for delivery at buyer’s convenience and the price was paid at once
though liable to adjustment when the hay was weighed on delivery. Then it was held
that the property passed at once.

Moreover, it is probable that goods/ property would be held to have passed if the
goods have been delivered, although the seller has still to do something to ascertain
the price; for instance by looking up the list price in a catalogue. In NANKA BRUCE
V COMMON WEALTH TRUST LTD682 where A sold cocoa to B at an agreed
price per 60lb, it being arranged that B would resell the goods and the cocoa would
then be weighed in order to ascertain the total amount due from A to B. It was held
that the weighing did not make the contract conditional and that the property passed to
B before the price was ascertained.

All in all, reference has already been made to this rule, under which in a sale of
specific goods the passing of the property is postponed if the seller is bound to weigh,
measure, test or to do any other act for the purposes of ascertaining the price.
This rule is confined to sell of specific goods, but it can also be the same with the
position of the sale of unascertained goods as was in the case of NATIONAL COAL
BOARD V GAMBLE683. Therefore in order to fulfill contract of sale of specific
goods under this rule, the seller should make sure he performs all the act of
measuring, weighing or testing in order to transfer the property in a deliverable state.

The fourth rule to ascertain intention of the parties when property passes to the buyer
is provided for under section 20 rule IV of Cap 214. This rule deals with a different
type of transaction altogether, although it is very similar to a conditional sale and may
become a sale in due course684. It stipulates:
"When goods are delivered to the buyer on approval or ‘on sale or return’ or
other similar terms, the property therein passes to the buyer –
(i) when he signifies his approval or acceptance to the seller or
does any other act adopting the transaction;

681
[1935] 2 KB 1
682
(1926) AC 77
683
[1959] 1QB 11
684
P.S Atiyah : The Sale of Goods, p.231.

344
 (ii) if he does not signify his approval or acceptance to the seller
but retains the goods without giving notice of rejection, then,
if a time has been fixed for the return of the goods, on the
expiration of such time if no time has been fixed, on the
expiration of a reasonable time; and what is reasonable time is
a question of fact."

On signification of acceptance to the seller, the buyer cannot repudiate the contract of
sale and reject the goods on the ground that there was breach of contract. This is well
illustrated in the case of MUSA MAHABA V. RUKIA SHAMTE685. In the case, the
respondent offered to sell the appellant a Singer Sewing Machine. The appellant
accepted the offer and price were agreed. The appellant paid half price with an
agreement that the rest be paid by monthly installment, and the appellant receives the
machine on the same date and took it to his home. The respondent left her home for
two months and to that time, the appellant had not paid the first installment. On
demand, the appellant refuse to pay asserting that it was not of a singer make and that
it was not in proper working order and he demanded the refund of his half price and to
the respondent to collect her sewing machine. The respondent rejected the repudiation
of the contract and referred the matter to the court.

The court held, inter alia, that the right to repudiate a contract and reject the goods on
the ground of breach of contract cannot be exercised after the buyer has accepted the
goods. The court also held and explain that a buyer is deemed to have accepted the
goods when intimates to the seller that he has accepted the goods or retains them
without indicating that he has rejected them, or does any act which is inconsistent
with the ownership of the seller.

Likewise, under the rule, the buyer will have his intention implied when he signifies
his approval or acceptance to the seller or does any other act adopting the transaction.
The case of KIRKHAM V. ATTENBOROUGH686 gives illustration. In the case, a
jewellery was sent by A to B "on sale or return". B pledged the jewellery with C. It
was held that the pledge was an act adopting the transaction, so that the property
passed to B, and C was entitled to retain the jewellery.

Another aspect of transfer under the rule regards to properties sent by the seller with
condition not to change the title to the property, unless the buyer pay for them. Here,
if goods are sent with an approval note showing that they are remain the property of
the seller until paid for in cash or invoiced, then the property does not pass until this
condition has been satisfied; and if such goods are improperly dealt with , the seller
may recover them.

Goods may also be delivered on sale or return where they are delivered to a person
who intends not to buy them himself but to sell them to third parties as was in
POOLE V. SMITH’S CAR SALES LTD687 where the plaintiff supplied two cars to
the defendant, at the end of August, on understanding that if he latter did not sell
them, they should be returned to the plaintiff. Only one car was sold, and the plaintiff
made repeated requests in October for return of the other. On 7th November, he wrote
685
[1979] LRT n. 6.
686
[1989] 1QB 201.
687
[1962] 2 All ER 482.

345
to the defendants saying that if the car had not been returned by 10th November, it
would be deemed to have been sold to the defendants. The car was returned some
weeks later in damaged condition. The plaintiff rejected it and sued for the price of
the car. As to whether the property was transferred to the buyer, the court held that the
contract was one of sale or return, notwithstanding that the defendants did not intend
to buy the car themselves, so that the property would pass to the defendants on the
expiration of a reasonable time, in the absence of rejection or any contrary intention
being shown. In the opinion of the court, in circumstances having regard to the
seasonal decline in the second-hand car market, a reasonable time had expired without
the car being returned, and the defendants were therefore liable to pay the price.

Under the rule thus, if a time has been fixed for the return of the goods, the buyer is
deemed to have exercised his option to buy them if he retains them after this time.
Generally, Rule IV sets the limits of the buyer in the contract of sale. It sets conditions
on which he can deal with the goods, or perform the contract after he had already
accepted the goods or otherwise signify his willingness to accept them.

The fifth rule regarding the transfer of property in goods as stated by R. A.

Anderson688 is to the effect that generally a person can not make a present sale of non
existent or future goods or goods not owned, a person can make a contract to sell such
goods at a future date but not having the title, and hence no sale. For example an
agreement made today that all fish caught on a fishing trip tomorrow shall belong to a
particular person does not make that person the owner of those fish today.

When the parties purport to affect a present sale of future goods, the agreement
operates only as a contract to sell the goods. Thus a farmer purporting to transfer the
title today to a future crop would be held subject to a duty to transfer that crop when it
came into existence. If the farmer did not keep the promise, suit could be brought for
breach of contract; but the contract will not operate to vest the title in the buyer
automatically.

The proposition above is similarly reflected in our law 689 where it is stated that where
there is a contract for the sale of unascertained or future goods sold by description, the
property passes to the buyer when goods of that description and in a deliverable state
are unconditionally appropriated to the contract by one party with the assent of the
other such assent may be express or implied and may be before or after the
appropriation is made. The law further explains the same rule by adding that such
unconditional appropriation can be made by the seller delivering the good s to the
buyer, or to a carrier on his behalf, without reserving the right of disposal.

CONCLUSION
To conclude generally, the contract of sale of goods entails that the property in goods
have to be transferred from the seller to the buyer but however for the ownership to
shift from the seller to buyer the rules under section 20 of Cap 214 have to be
ascertained for the sake of knowing as to which rule applies in the specific contract of
sale. It follows as the day follows night that the rules explained above have to be

688
R.A. Anderson (1980) Business law 11th edn p 314
689
Section 20 rule V ibid

346
understood by the parties to a contract of sale as the create legal obligation to the
parties even if they have not expressly indicates them as applicable to their contract.

Qn Define and distinguish between a Warranty and condition, under what

circumstances a breach of condition is to be treated as a breach of warranty.

OUTLINE

1.0 INTRODUCTION
Definition of terms condition and warranty

2.0 Distinction between condition and warranty

3.0 Circumstances of a breach of condition can be treated as a breach of warranty

4.0 CONCLUSION

5.0 BIBLIGRAPHY

1.0 INTRODUCTION

A contract of Sale of Goods contains various terms or stipulation regarding the

quality of goods. These terms are the price and the mode of its payment,
delivery of goods and its time and place. But all of them are not of equal
importance. Some of these stipulations may be major terms, which go to the
very root of contract, and the breach may frustrate the very purpose of the
contract, while others may be minor terms, which are not so vital, their breach
may seem to be a breach of the contract as such. In law of sales major terms
are called “conditions” and minor terms are called “warranties”690.

Having introduced the discussion, this paper centers on the following terms,
condition and warranty, distinction between condition and warranty and the
circumstances under which condition and warranty can be treated as warranty.

690
Kuchhal.M.C, (2005) Business Law at. p

347
1.0 DEFINITION AND DISTINCTION BETWEEN CONDITION AND
WARRANTY : -

1.1 Condition
The term condition has not been defined under the Sale of Goods
Ordinance691. However, generally a condition is defined to mean a
major term of a contract the breach of which may give rise to a right to
treat the contract as repudiated. The condition also means a stipulation,
which is essential to the main purpose of the contract hence it goes to
the root of the contract692. It defined by Fletcher Moulton L.J. in
Wallis V Pratt693 as an obligation which goes so directly to the
substance of the contract, or in other words, is essential to its very
nature that its non performance may fairly be consider by the other
party as a substantial failure to perform the contract at all.

1.2 Warranty
The term Warranty is defined under the sale of Goods Act694 to mean
an agreement with reference to goods which are the subject of a
contract of sale but collateral to main purpose of such contract, the
breach of which gives rise to a claim for damages but not the contract
as repudiated.

Again the term warranty is defined in the case of Wallis V Pratt

(supra) as an obligation, which though it must be performed, is not so
vital that a failure to perform it goes to the substance of the contract.
1.3 Distinction between Condition and Warranty: -

The first point is as to the definition: condition is a stipulation which is

essential to the main purpose of the contract, Justice Mwalusanya in
the case of Timber Furniture Agency V Dodoma District Council695
defined the term condition as ‘a major, important, or fundamental
statement in the contract”. But the term warranty is a stipulation,
which is collateral to the main purpose of the contract. That does not
go to the root of contract.

There is no hard and fast rule as to which stipulation is a condition and

which one is a warranty. Therefore, whether a stipulation in a contract
of sale is condition or warranty depends in each case on the
construction of the contract. The most suitable test to distinguish
between the two terms is that if the stipulation is such that its breach
would be fatal to the rights of the aggrieved party, then such stipulation
is a condition and where it is not so, the stipulation is only a warranty.

The second distinction between a condition and warranty is as to the

consequence of breach; in case of the breach of a condition, the

691
Cap 214
692
Kapoor, N.D. (1982), Element of Mercantile law, at. P205
693
(1910) 2 K.B 1012
694
Section 2(1) of cap214
695
Civil Case No.13 of 1989(H.C) at Dodoma (unreported).

348
 innocent party to the contract is entitled to repudiate the contract by
rejecting the goods with no liability to pay the price, or if the price has
been paid, it may be recovered or he may teat the contract as
subsisting but to claim damages. Whereas the breach of warranty the
aggrieved party has no right to repudiate the contract, but may sue for
damages.

Another distinction between condition and warranty is as to breach; A

breach of condition may be treated as a breach of warranty. But a
breach of warranty cannot be treated as a breach of condition. The
same is in line with the provisions under the law of Sale of Goods696,
which provides that:
“ Where a contract of sale is subject to any condition to be
fulfilled…buyer may …elect to treat the breach of such condition as a
breach of warrant…”.

4.0 CIRCUMSTANCE UNDER WHICH A BREACH OF CONDITION IS

TREATED AS A BREACH OF WARRANTY.

Generally conditions are major terms of the contract, which goes to the root of
the contract and the breach of which entitles the buyer to repudiate the
contract. However, there are circumstances under which the breach of
conditions may be treated as breach of warranty and entitle the buyer to claim
damages only and not repudiate the contract. There are two cases under which
a condition is to be treated as warranty.

(i) Voluntary Waiver by the Buyer: -

Although on a breach of condition by the seller, the buyer has a right

to treat the contract as repudiated and reject the goods, but he is not
bound to do so. Her may instead elect to waive the condition, that is,
to treat the breach of condition as a breach of warranty and accept the
goods and sue the seller for damages for breach of warranty.

Illustration:-
John agrees to supply Andrea 10 bags of first quality sugar worthy Shs.
1000/- per bag, but John supplies only second quality sugar, the price
of which is Shs. 850/-per bag. In such a case there is a breach of
condition and the buyer can reject the sugar. But if Andrea so elects,
he may treat it as a breach of warranty, and accept the second quality
sugar and claim damages of Shs. 150/- per bag.

(ii) Acceptance of goods by buyer:

Where the buyer has accepted the goods and subsequently he comes to
know of the breach of condition, he cannot reject them, but he can

696
Section 13(1) of the Cap 214.

349
 maintain an action for damages. For instance ‘Y’ agrees to buy from
‘X’ 30 sacks of flour by sample. Y upon examination of flour finds
not equal to sample but uses two sacks and sells one. At this stage, he
cannot rescind the contract and recover the price, but he is entitled to
compensation for the loss caused to y by breach of warranty. The same
is in line the Sale of Goods, Ca p 214697.

5.0 CONCLUSION: -

A contract of sale of Goods, generally is based on terms of the contract of

which the parties themselves agrees. Such terms may be major and minor.
The former relates to conditions which essential to the main purpose of the
contract, and go to the root of the transaction. The later relates to warranty
which is collateral to the main purpose of the transactions, it is not of such
vital importance as a condition. The two terms differs in consequences once
they are breached, where the breach of condition amount repudiation and
claim for damages, while the breach of warranty amount to claim for damages.
However, the buyer may opt to treat the breach of condition as breach of
warranty.

Qn Mention and explain the circumstances under which the contract of

sale of goods can be breached.

OUTLINE

1.0 INTRODUCTION.

2.0 Circumstances under which the Contract of Sale of Goods can be breached.

2.1 Breach by the Seller.

2.2 Breach by the Buyer

3.0 Conclusion

Bibliography

1.0 INTRODUCTION.

The sale of goods is the most common of all commercial contracts. The law relating
to it is contained in the Sale of Goods Ordinance Cap 214. The contract of sale of
goods is subject to the general legal principles applicable to all contracts, such as offer

697
. Section 37 of cap 214

350
and its acceptance, the capacity of parties, free and voluntary consent, consideration
and legality of the object. Moreover, the contract of sale of goods has some unique
features, such as transfer of general property, delivery of goods 698, and money
consideration called price.

Contract of sale of Goods is the contract where by the seller transfers or agrees to
transfer the property in goods to the buyer for money consideration called price699.
Where under a contract of sale, the property in the goods is transferred from the seller
to the buyer the contract is called a sale and where the transfer of property in goods is
to take place at a future date or subject to some conditions later to be fulfilled the
contract is called an agreement to sell.

Parties to a contract of sale of goods are the persons who own the goods and the
persons to whom the title is transferred, the transferor is the seller or vendor and the
transferee is the buyer or vendee.

2.0 Circumstances under which the Contract of Sale of Goods can be breached.

In contract of sale of goods each of the parties, that is, the vendor and the vendee has
obligations towards the other to perform hi part of the contract. Thus non-
performance of either party’s obligation amounts into the breach of contract of sale of
goods. These obligations arise from the term of the contract agreed by the parties;
they can either be warranties or conditions.

The breach of the contract of sale of goods can occur under various circumstances,
and it may be committed by either the buyer or the seller as the case may be. These
circumstances are discussed herein under, starting with situations under which the
seller can be said to breach the contract and thereafter situations in which the buyer
can be said to be in breach of the contract.

2.1 Breach by the Seller.

It is the seller’s duty to deliver the goods to the buyer. In case the seller does not
deliver or mis-deliver the goods for one reason or another it will constitute the breach
of his obligation to the buyer, thus beach of the contract of the sale of goods. The
delivery must be in the way, at the time and in the location that has been specified and
agreed upon by the parties700. In the case of TANZANIA TRANSPORT CO. LTD
V. D.G DAVDA AND ANOTHER701 it was held that the common carrier in
miscarriage or mis-delivery of goods can be said to be in breach of his agreement with
the seller and therefore liable in damages for such breach.

In the contract of sale of goods by description, the seller is duty bound to deliver the
goods to the buyer as per agreed descriptions. According to section 15702, where there

698
Section 2(4) Cap 214
699
Section 3 of Cap214
700
Sections 29 and 31 of the Sale of Goods Ordinance, Cap. 214.
701
[1974] LRT n. 14.
702
Sale of Goods Ordinance, Cap. 21

351
is a contract of the sale of goods by description, there is an implied condition that the
goods shall correspond with the description. If the seller delivers the goods in
description other than that agreed he will be in breach of the contract and the buyer
will be entitled to reject the goods. However the seller will not be in breach if the
buyer had had a chance of inspecting the goods before accepting them703.

It is the expectation of the buyer that the seller will deliver the goods which are in a
merchantable quality and in reasonable condition, that is, they should be fit for the
intended purpose704. Therefore, if the seller does not comply with this implied
requirement will be in breach of the contract of sale of goods. In the case of
MAGIRINI MAHINYA V. MBWIGA MKEYA705, Mchome J held, inter alia, that;
“In selling a defective tyre to the appellant the respondent committed breach
of implied warrant on his part that the goods sold would be in reasonable
condition.”

It is the duty of the seller to make sure that he wholly performs his part of the
contract, that is, he should deliver the whole bulk of the goods contracted for. If the
seller delivers the goods partly, he will be in breach of his obligation. Under this
situation the buyer may reject the goods or if he accepts them, he should pay for them
at the contract rate706 and sue the seller for damages for breach of contract.

If in their contract, the parties have agreed that the goods shall be delivered to the
buyer at once, the seller will be in breach of contract if he delivers them in
installments. When this happens the buyer may either repudiate the whole contract or
claim for compensation depending on the terms of the contract and circumstances of
the case. This is a statutory position found under section 33707.

2.2 Breach by the Buyer

It is the duty of the buyer to pay the price of the goods he has bought and, in the
absence of the contrary agreement; he is not entitled to claim possession of the goods
unless he is ready and willing to pay the price in accordance with the contract 708. In
case the buyer neglects to pay the price for the goods, he will be in breach of the
contract of sale of goods and the unpaid seller will b entitled to retain possession of
the goods; re-sell; or stop the goods in transit709.

As a general rule, the buyer is duty bound to accept the goods as per agreement 710.
The buyer’s failure to take delivery of the goods at the time agreed and if the delay is
of such an inordinate length, the buyer will be considered to be in breach of the
contract. This may justify the seller in assuming that the buyer has abandoned the
contract and he may treat the delay as repudiation711. If the contract is for the sale of
703
Ibid, Section 32(3) read together with section 36
704
Ibid, Section 16
705
[1989] TLR 185
706
Ibid, section 32(1)
707
Sale of Goods Ordinance, Cap. 214.
708
Ibid, section 30
709
Ibid, section 41
710
Ibid, Section 29
711
P.S Atiyah, (1985), The Sale of Goods, 7th Edn, p. 214

352
goods of a perishable nature, the buyer will be in breach if does not accept them
immediately and the seller will be entitled to re-sell the goods. This position was also
held in the case of HARRINGTON V. BROWNE712. The seller may also sue the
buyer for any loss occasioned due to non-acceptance.

If it is agreed in the contract that the buyer will be responsible for the transportation of
the goods, he will be in breach of the contract if he fails or refuses to discharge that
duty as per the agreement.

4.0 Conclusion

For there to be fair and effective contract of sale of goods, the obligations of the buyer
and seller must be mutual. That is to say it is the duty of the seller to deliver the goods
and the buyer to accept and pay for them in accordance with the terms of the contract.

QUESTION:

Victor agreed to sell to Philip 900 mninga desks. The contract required delivery
to be made in three equal instalments on 20th May, 25th May and 30 May. It also
contained a clause "This entire contract is governed by Tanzania law"
On 20th May Victor delivered 280 mninga desks, mistakenly including 20 mpodo
desks in the consignment. Today is 25th May and Victor has delivered 295
mninga desks. Philip has now found a cheaper supplier and wishes to return all
the desks delivered so far and to cancel delivery of the third consignment.
Advice Philip.
What difference, if any, would it have made to your advice if today is 3 rd June
and Victor has only just delivered the second consignment?

OUTLINE:

1. 0 INTRODUCTION.

2.0 POSSIBLE ISSUES:

2.1 What Breach do the Seller Commits on Delivering Goods not described
in the Contract.

2.2 Whether the retaining of goods by the buyer after delivery amounts to
acceptance.

2.3 Whether the buyer can repudiate previously delivered goods.

712
(1917) 23 CLR 297.

353
 2.4 Whether failure to deliver the third consignment by the seller will
entitle the buyer to repudiate.

4.0 CONCLUSION.

5.0 BIBLIOGRAPHY.

1. O INTRODUCTION:

The question will be discussed regarding terms and conditions of the contract
of the sales of goods. The contacts for sale of goods are subject to the general
principles of the law relating to contracts i.e. the Law of Contract Ordinance,
Cap 433. A contract for sale of goods has, however, certain peculiar features
such as, transfer of ownership of the goods, delivery of goods, rights and
duties of the buyer and seller, remedies for breach of contract, conditions and
warranties implied under a contract for sale of goods, etc. These peculiarities
are the subject matter of the provisions of the Sale of Goods Ordinance, 1961.
The scenario is on the contract of the sell of goods, in which the seller agreed
to deliver to the buyer mninga desks by instalment. In that respect, the
scenario revealed that there was delivery of the goods in the first instalment
which did not correspond to the description of the contract. With the facts
given in the scenario therefore, issues in respect of acceptance of goods in the
contract of sale of goods, non observance to descriptions in the contract, and
consequences of failure to deliver goods on the date set for the last instalment
comes closer to the question hence calls for solution.

2.0 MAIN BODY: DISCUSSION OF THE ISSUES

2.1 What Breach do the Seller Commits on Delivering Goods not described in
the Contract.
In every contract of sale, there are terms and conditions of the contract. These
may be express or implied. Express terms are those expressly provided in the
contract. Implied conditions and warranties are those which are implied by
law or custom; these shall prevail in a contract of sale unless the parties agree
to the contrary.

Sales of Goods Ordinance stipulate provisions for the sale of goods by

description. The law is to the effect that when a buyer makes a description of
goods to be delivered by the seller, then such a description acts as an implied
condition of the respective contract. If the seller delivers goods to the buyer
which are of mixed description other than what they agreed to in the contract
for sale of the goods then such a delivery can entitle the buyer to either, accept

354
the goods which are in accordance to the contract or he may reject the whole.
This is provided for under section 32(3) of the Sales of Goods Ordinance. In
the case of MUSA MAHABA V RUKIA SHAMTE713 it was stated by the
court that where in a contract for sale by description and the goods delivered
do not correspond to that description, the buyer has the right to repudiate the
contract and reject the goods within a reasonable time.

In regard to the question given we have been told that in the contract of sale
between Philip and Victor there was an agreement to sell desks made of
mninga tree however the seller delivered in the first instalment some desks
made of mpodo trees. So it can be said that the sell contemplated between the
parties was that of description and thus the delivery of the mpodo desks
amounted to a breach of this implied term of the contact. So under the
circumstances Philip can reject the goods however such has to be done within
a reasonable time.

2.2 Whether the retaining of goods by the buyer after delivery amounts to
acceptance.

Under the sales of goods ordinance the provision guiding the acceptance of
goods is section 37714, the section provides that;

“The buyer is deemed to have accepted the goods when he intimates to the
seller that he has accepted them or when the goods have been delivered to him,
… or when after of a reasonable time he retains the goods without
intimating to the seller that he has rejected them.”(emphasis is supplied)

The provision is to the effect that when a seller has delivered goods to the
buyer which do or do not correspond to the description by the buyer, and the
buyer retains the goods without rejecting them, then such a buyer can not
reject the goods if a reasonable time has elapsed since the delivery was made.
This can be supported by the case of MUSA MAHABA V RUKIA SHAMTE
(supra) where it was stated that; a buyer is deemed to have accepted the
goods when he intimates to the seller he has accepted the goods or retains
them without indicating that he has rejected them, or does any act which is
inconsistence with the ownership of the seller.

In regard to the scenario given we have been told that the seller delivered the
desks which some of them were made of mpodo contrary to their prior
agreement to sale. However the buyer did not reject the goods and he waited
until the second instalment was made and now he wants to repudiate the first
consignment. It is our advice to Philip that he can not reject the goods since

713
1979[LRT] n 6
714
Sales of Goods Ordinance Cap 214

355
there was a lapse of a reasonable time since the first consignment was
delivered.

2.3 Whether the buyer can repudiate previously delivered goods

It should be known that the contract of sale between Philip and Victor
involves the delivery of goods in instalments. Therefore we have to let
ourselves be guided by the provisions of the Sale of Goods Ordinance which
relates to sell and delivery of goods by instalments.

The relevant section in regard to the scenario given is section 33(2) of the
Sale Of Goods Ordinance, the section it to the effect that in a contract of sale of
goods which involves the sale and delivery of goods in instalment, which are
to be separately paid for, then if the seller makes defective deliveries in
respect in one or more instalments or the buyer or there is a defect in payment
of the goods by the seller on any of the instalments then depending on then
terms of the contract and the circumstances of the case, any of the parties can
repudiate the contract , or such a party can claim for damages, but he will
not be allowed to treat the whole contract as repudiated.

Therefore the section seems to apply where the goods are to be delivered by
instalments and the instalments are to be separately paid for715.at this instance
the defect in delivery of goods then depends on what has been provided for
under section 33(2) of the Ordinance. however if the contract is for delivery of
goods in instalment but such is non severable contract then the fact that the
goods are delivered in instalment is immaterial once it is found that this does
not make a contract severable. And hence the defect under such instance leads
to repudiation of the contract as a whole716.

However, if the contract is silent on the events which have occurred then the
tests to be applied is the ratio quantitatively which the breach bears to the
contract as a whole. In the case of MAPLE FLOCK CO LTD V UNIVERSAL
FURNITURE PRODUCTS (WEMBLEY) LTD717 whereby the plaintiffs
contracted to sell 100 tonnes of rag flock to the defendants delivery to be at a
rate of three weekly instalment of 1.5 tonnes each as required, and the flock to
conform to the government standard. The first 15 loads were satisfactory but
a sample from the sixteenth load showed that it did not conform to the
government standards. In the mean time the defendants had taken delivery of
four more loads, all of which were satisfactory. The court held that the
defendants were not entitled to repudiate the contract, as the breach only
affected 1.5 tonnes out of the flock already delivered. (Underscoring is ours)

715
P.S. Atiyah,1985, The sales of Goods, 7th edn p 384
716
Ibid p 385
717
[1934] 1 KB 148

356
Another test to be applied where the contract is silent on the event which has
occurred, taking an example of the scenario given, is; the degree of probability
or improbability that such a breach will be repeated. This can be seen in the
case of R.A. MUNRO AND COMPANY LTD V MEYER718 where A agreed
to buy 1500 tonnes of meat and bone meal, delivered at the rate of 125 tonnes
a month, from B after more than half of the total quantity had been delivered
and discovered to be seriously defective, the buyer claimed to repudiate the
contract .The court held that the buyer had right to repudiate the contract
where a defect was persistent and serious.

Furthermore it is said that the buyer who actually examines some specific
item and find it defective in some minor respects, but accepts it without
demur may thus find that he has lost both the right to reject and the right to
claim damages719.

On the other hand taking the view of the two tests in relation to the defect
which has occurred in the scenario it can be said that, the defects which is
stipulated in the scenario entitles the buyer to repudiate the contract which he
entered with the seller.

It is our advice to Philip that the application of section 33(2) of the sales of
goods ordinance in the situation will not apply however if we resort to the
common law, and apply the tests then he will be having the right to repudiate
the contract.

2.4 Whether failure to deliver the third consignment by the seller will entitle
the buyer to repudiate.

As discussed above the rules regarding the delivery of goods in a contract of

sale of goods, it can be said that the failure of the seller to deliver the goods to
the buyer as agreed in the, agreement to sale can be determined in two ways.
The firsts that if the law as provided under section 33(2) of the sales of goods
ordinance are applied then depending on the terms of their contract he can
repudiate the contract.

However the fact that we have not been told specifically as to whether the
contract is severable or Non severable. The use of the test as stated above has
revealed whether the contract is severable or non severable the buyer is
entitled to repudiate the contract. At this instance our advice will remain the
same that he can repudiate the contract.

This idea can be supported by provisions of section 29 of the Sale of Goods

Ordinance which is to the effect that the seller has to deliver the goods
according to the terms of their contract this provision has to be read together

718
[1930] 2 K.B 312
719
Atiyah, op cit p 392

357
with section 33(2) of the same Ordinance the section as stated earlier provides
for the delivery of goods by stated instalments that if there is a contract to
make separate instalments then such has to be done otherwise the buyer will
have a right to either repudiate the whole contract or part of it and claim
compensation.

This will depend on the terms of their contract. Now it is our advice to Philip
that he can repudiate the whole contract pursuant to his intention as it will be
in the ambits of the law. Otherwise the law also provides under section 33 (2)
of the Sale of Goods Ordinance that the buyer may retain the goods delivered
and claim compensation.

3.0 CONCLUSION
With the advice given above the buyer that is Philip is supposed to rely on
that advice and exercise his minds so as he can fulfil his right in the contract.

ALTERNATIVE ANSWER

1.0 INTRODUCTION

This scenario is based on contract of sale of goods, more specifically delivery and
acceptance. Under Tanzanian law this is covered under sections 15, 32 and 33, 37, 38
of The Sale of Goods Ordinance Cap 214. But our main concern is Section 33(2),
because the problem at hand is based on delivery of goods by installments.

2.0 Issue.
It is obvious from the scenario that due to some reasons Philip no longer wants the
goods and that he desires to reject them. Thus, the issue is whether Phillip can have
right to reject the consignments and repudiate the contract.

This issued can be answered through the aid of the provision of section 33(2) of the
Sale of Goods Ordinance. This section says that in case the seller defaults in delivery
of the goods then the buyer will be entitled to reject the whole consignment or accept
them and sue for damages. But the section is not clear on this point as it provides that
this will depend on the circumstances of the case and terms of the contract. According
Attiyah720, this provision which is in pari materia with Section 31(2) of the Sale of
Goods Act, 1979 (UK), has posed many questions than answers (that means it has led
to confusions than simplifying the situation)

The question brought about by section 33(2) can be answered by reference to

common and case law, although not Tanzanian cases because our research has found
none. This issue can be answered by looking at two situations, that is, where the
contract is severable and where it is non-severable.

720
P.S Attiyah, (1987), The Sale of Goods, 7th Ed, p. 383

358
Non-severable contract is the one in which the delivery and acceptance of the goods
will be taken to cover the whole consignment and not any part of the consignment. In
case the contract is not severable, then it is to be treated as an entire contract. In this
case a partial breach is to treat in the same way as total breach and the buyer is prima
facie entitled to reject all the goods. In this situation the fact that the goods are
delivered in installment is immaterial once it is found that this does not make the
contract severable721. The position is exactly the same as it would be if the whole
consignment was delivered at once and part of the goods were defective. In such a
case it is well established that the buyer can reject the whole722.

Thus from this common law position we are of the view that Philip will be entitled to
repudiate the contract and reject the whole consignment. This position may be
maintained if his contract with Victor is non-severable.

Having seen the position if the contract is non-severable, it is now our turn to show
the position in case the contract is severable. Severable contract is the one in which
delivery is to be done by installment and that payment must be effected in respect of
each installment723. According to Attiyah724, where the contract is severable because
the goods are to be delivered in installments and are to be separately paid for, the right
of the buyer to reject the whole consignment depends on the terms of the contract and
the circumstances of the case.

In case the contract is silent as to the events, which may entitle the buyer to reject the
whole consignment then the following test, must be applied;
(a) the ration quantitatively which the breach bears to the contract as a whole;
and
(b) the degree of probability or improbability that such a breach will be
repeated.
These test are being reiterated in the case of Maple Flock Co. Ltd V. Universal
Furniture products (Wembley) Ltd725.

By applying the tests to the scenario we are of the view that Philip will be entitled to
repudiate the contract and reject the whole consignment. By delivering the goods with
mixed description in the first installment and failure to deliver to the full installment
of 300 desks in the second installment amounts to the breach of the contract that may
entitle the buyer to repudiate the contract and reject the whole consignment. This is
based on the position stated in the case of RA Munro and Co. Ltd V. Meyer726. In this
case A agreed to buy 1500 tons of meat and bone meal, delivery at the rate of 125
tons a month, from B. after more than half of the total quantity had been delivered and

721
Gill and Duffus SA v. Berger and Co. Inc [1983] 1 Lloyd’s Rep. 622
722
Jackson v. Rotax Motor and Cycle Co. Ltd [1910] 2 KB 937
723
Although this is not always the case, there are circumstances in which such a contract may be
regarded as non-severable. (Atkin L.J, in Longbottom and Co. Ltd v. Bass Walker and Co. Ltd
[1922] WN 245)
724
Attiyah, Op cit p. 384
725
[1934] 1KB 148
726
[1930]2 KB 312

359
discovered to be seriously defective, the buyer claimed to repudiate the contract.
Wright, J, held that he (buyer) was entitled to do so. ‘where the breach is substantial
and so serious as the breach in this case and has continued so persistently, the buyer is
entitled to say that he has the right to treat the whole contract as repudiated’.

2.1 Advice to Philip.

Having seen different authorities relevant to our issue we find that Philip has a great
protection by the law if he wants to repudiate the contract and reject the whole
consignment. However, our advice to Philip is that he should immediately
communicate his intention to reject the goods to Victor because if he does not do this
he will be taken to have accepted them. In short he should make sure that he complies
with the provision of section 37 of the Sale of Goods Ordinance.

Where Philip repudiate the contract having right to do so he can of course decline to
pay the price or if he has paid for it he can recover it as on a total failure of
consideration. Where the goods are so rejected it is not the responsibility of the buyer
to return the goods to the seller, only he has to do is to intimate to the seller of his
intention to reject the goods727.

2.2 Position if there is no delivery of third installment in the agreed time.

In respect of part two of the question in which the seller has failed to deliver the
goods within the agreed time, we are of the same conclusion that Philip may repudiate
the contract and reject the whole consignment. This is due to the fact that one of the
implied conditions in any contract of sale is that goods must delivered in the time
specified in the contract.

In ordinary commercial contracts for the sale of goods the rule clearly, is that time is
prima facie of the essence with respect to delivery728. If the time for the delivery is
fixed by the contract then failure to deliver at that time will thus be a breach of the
condition which justifies the buyer in refusing to take the goods.

Furthermore, in the case of RA Meyer and Co. Ltd v. Mayer 729 it was stated that if
parties enter into a distinct contract, a breach of one would very rarely justify
repudiation of the other. But a provision in a contract that each installment or which
delivery is to be treated as a separate contract does not mean that there are distinct
contracts it merely indicates that the contract is severable hence such clause does not
deprive a buyer of a right to throw up the whole contract if he would otherwise have
such a right.

3.0 Conclusion.
Basing of the analysis we have made above, it is clear that in both situations Philip is
entitled, under the law, to repudiate the contract and reject the whole consignment.
However, this right to repudiate the contract is subject to his discretion to accept some
of the goods tendered to him and sue for damages.

727
Section 38 of the Sale of Goods Ordinance, Cap. 214.
728
Hartly v. Hymans [1920] 3 KB 475 at 484
729
[1930]2 KB 312 at p. 332

360
BIBLIOGRAPHY

STATUTES

Tanzania Government of, the Law of Contract Ordinance Cap 433, the
Government Printers, Dar es Salaam.

Tanzania Government of, the Sales of Goods Ordinance Cap 214, the Government
Printers, Dar es Salaam.

BOOKS
Atiyah, P. S, (1985), the Sale of Goods, 7th Edition, Pitman Publishing, London.

Anderson, R. A, (1980), Business Law, 11th Edition, South Western Publishing

Company, Ohio.

361
LABOUR LAW QUESTIONS AND ANSWERS
QUESTION:

"Both an employer and an employee in a contract of employment are expected to

have some opposed interest".
Required:
Explain in brief how the labour laws of Tanzania strike a balance on the
expected opposed interests so as to ensure good industrial relationship to
increase production and provision for services.

OUTLINE

1.0 Introduction

2.0 The historical background of the opposing interests

3.0 Main Body

How the Laws attempt to Balance Opposed Interests.

4.0 Conclusion.

5.0 References.

INTRODUCTION
An employer and an employee have the relationship based on contract. Such
relationship can either be achieved after concluding a contract which may be either
oral contract730 or written contract731.

According to the Employment Ordinance732 an employer means any person, or any

firm, corporation or company, public authority or body of persons who or which has
entered into a contract of service to employ any person and includes any agent,
foreman, manager or factor of such person, firm, corporation, company, public
authority or body of persons who is placed in authority over such persons employed,
where an employee has entered into the contract of service with the government, any
government officer under whom such employee is working shall be deemed to be his
employer.

The same ordinance733 defines an employee to mean any person, or any firm, who has
entered into or works under a contract of service with an employer whether by way of
manual labour, clerical work, or otherwise and whether the contract is expressed or
implied or is oral or in writing.

The above definitions of the term employer and employee seems to be technical but
for the sake of clarity the two terms can be defined as follows; that an employer is any
730
Section 2 of the Employment Ordinance defines Oral Contract to mean the contract of service
which, under the provision of part IV of the Ordinance is not required to be made in writing.
731
This is also defined by section 2 of the Employment Ordinance to mean the contract made under
part V of the Ordinance which is required to be made in writing.
732
See section 2 of the Employment Ordinance.
733
Ibid

362
person or firm corporation or company or public authority or board of persons who or
which has entered into a contract of service to employ any person while an employee
is any person who has entered into a work under contract of service.

As it has been pointed above the two that is, an employer and an employee have
opposing interests. The opposing interests are mainly substantiated by the fact that in
any contract of service employees are there to earn something for themselves and
their families while employers are interested in making profits.

THE HISTORICAL BACKGROUND OF THE OPPOSING INTERESTS

In short as Jain734 states after the First World War there was the considerable increase
of the cost of living. This in turn made the owners of industries to devote their sole
attention to the maintenance of machines and the improvements of the technical
know- how to the utter neglect of the workers employed to run the machines because
they were available in the large number and could be replaced in no time.

In that epoch, the employers did not care of socio-economic welfare of employees
thus the opposing interest was overweighed by the side of employers as they had
hegemony in the contract of service. Though at this juncture there were opposing
interests between one side which was weak and the other side which was strong
neither the governments nor the courts were at the position to balance the opposing
interests which prevailed hitherto because there was the policy of non – interference
in employer and employee relation.

As the time went on, however, the policy of non – interference became the obsolete
policy thus the government intervened the relationship between the employer and the
employee by trying to impose the conditions on the employers to improve the labour
conditions of the employees. This was achieved by the enactment of the labour
legislations.

This tendency of labour legislations had been the great achievement in the contract of
employment relationship as it balances the opposing interests. In Tanzania the labour
laws mainly the acts of parliament and other sources of law have reiterated the
balancing of interests between the two sides.

MAIN BODY

How the laws attempt to balance opposed interests

The contribution of capital and labour in any industry is equally important. Therefore
the prosperity of any industry depends on the co-operation of the capital and labour.
The two sides have opposing interests thus labour laws have provided for the
prescriptions under which either side has to rely in the course of the contract of
employment.

To start with the labour laws of Tanzania enhance the need to enter into the contract
of service before an employee commences to work for the employer. In this contract

734
S.P Jain, (2002) Industrial and Labour Laws, 9th edition p xi.

363
of employment like any other forms of contract the parties are bound with the terms
of the contract thus the major and minor terms of the contract will be taken as the
assistance of balancing the interests of both parties to a contract. An employer or an
employee is duty bound to observe the contract period. If the contract is for six
months it must end after six months.

In addition to that labour laws of Tanzania have considered the duties and obligations
of an employer and an employee thus provides for the clear mechanism for the
balancing of interests between these two sides.

In the labour laws legislation the employer is supposed to provide work for the
employee as well as paying such employee735. The employee after being given works
by the employer is duty bound to obey the lawful orders and reasonable instructions
of his employer pertaining to his employment; failure to obey results to termination.
Pursuant to these duties of either side there is the balance as the employee after being
provided work as per section 16 of the Employment Ordinance has to obey the
reasonable and lawful instructions of his employer. This will enable the easy
achievement of the intention of concluding the contract of employment between the
two parties.

There are the duties and obligations attached to the contract of employment pertaining
to health safety and the welfare of the employee at the place of working. These are
provided for under part III, IV and V of the Factories Act and part III of the
Employment Ordinance. For instance under section 13 of the Factories Act every
factory is has to be kept in the clean state free from sanitary convenience or nuisance.

The Act on the same provision mentions the areas to be given emphasis as far as the
cleanliness of the factory736 Further the employer has to make the maintenance of the
equipment to ensure that the environment is safe. These entails that the employee will
earn for themselves and their families in the good working condition while the
attainment of the profit by the employer will be backed up with the regulated
environment.

Meanwhile the law is clear that the interest of the employer to exploit the labour force
of the employee. With that effect the law puts it clear that the employee is to be given
wages for the work he has done as provided for under section 61 of the Employment
Ordinance. The employer is obliged to pay wages which should not be below the
minimum amount set by the laws. The laws also stipulates clearly that with the
consent of the employee the employer can deduct a certain amount from wages of
such employee for the payment of Tax, Contribution of Pension Fund or other
schemes established under the labour law737.Otherwise the employer has to pay the
employee the whole amount of wages.

In the mean time in striking the balance on the aspect of payment of wages the law
stipulates that an employee should be given work so as to increase production and

735
See section 16 ibid
736
See section 13 (a) – (c) and the proviso which provides circumstances in which the commissioner
for labour may order that the provisions may be departed but this is only after publishing in the gazette.
737
Section 5of Regulation of Wages and Terms of Employment Ordinance, Cap 300

364
also it allows the employer to get more profit by exploiting the employer only in
regard to terms of employment and also paying due regard to law.

Furthermore for the sake of increasing production which is the interest of the
employer the law has made it as an obligation for an employer to assign work to an
employee so as to pay in accordance to the terms of the contract and if he fails to
provide work he must pay the employee in all such days he so fails to provide
work738. From this requirement of the law it is the obvious thing that so long as the
employer and the employee are in the contract of service it is therefore upon the
employer that he has to give the employee work to perform so as to fulfil the term and
intention of the conclusion of the contract of service.

Taking into consideration the service of an employee to an employer the employer has
to provide several entitlements to the employee namely repatriation, severance
allowance, remuneration for the work done before termination annual leave pay,
certificate of service and notice pay. The laws have provided for these entitlements for
instance repatriation is to take back the employee to his place of origin. Section 53 of
the Employment Ordinance provides that it is the right of the employee to be
repatriated where the termination of employment is within the circumstances provided
under section 53 (1) (a) to (e) of the Employment Ordinance. In recognition of the
importance of repatriation the Employment and Labour Relations Act provides the
same under section 43.

The laws in Tanzania has provided for these entitlements to an employee in

considering the labour force of the employee to the attainment of the profit by the
employer and all this is for the sake of balancing interests as if this could be left to the
employers to decide most of them could not consider the efforts of the employees.

It is for the interest of the employer that the profit should be achieved and this is
achieved from the labour force done by the employee. This doctrine of achievement
of profit has been inherent since the time of industrial revolution. Due to this doctrine
the law has considered the mechanism to regulate the exploitation of the labour force
of the employees by putting the clear conditions/incidents, for instance the employee
has to work for the maximum number of nine hours per week739. The law further has
regulated for the working days that an employee is supposed to work for maximum
number of days not exceeding six days in a week. There are other conditions such as
daily rests period, weekly rests period, holidays, leaves, annual leave, sick leave,
paternity leave and maternity leave740.

There is the recognition of special group of workers by the Tanzania labour laws by
providing specific provisions in control of their interest as opposed to the interest of
the employer. This is the group consisting of women children and young persons.
This is dealt over under Part VIII of the Employment Ordinance. The provision under
this part are to the effect that though the law allows women and young persons to
work as other employees and get capital/profit from the work the law on the other side

738
Section 17 of employment ordinance
739
See section 19 (2) (b) and (c) of the Employment and Labour Relations Act.
740
Found from section 24 to section 34 of the Employment and Labour Relations Act. Also section
25A to section 25D of the Employment Ordinance.

365
restricts these persons from working in some areas741, thus though the employers duty
in the contract of employment is to provide work to the employees pursuant to the
terms of the contract this part of the law restricts these employers to work on the
according to the prescriptions of the provision of the law.

On top of that another aspect which the law of Tanzania reflects in striking the
balance of interest between the employer and the employee is the recognition of the
Workers Association by the law. These are special organisation which protects
employees’ interest, in that it acts as dispute settlement machinery, it facilitates
workers to have good working conditions and such other employees’ interest.

These associations are two folds that there are associations which represents the
interests of the employers and the associations representing the interests of the
employees. For those associations formed for the purpose of the protection of the
interests of the employees the labour laws in Tanzania restricts employers from
prohibiting employees to join such organisations.

Moreover the labour laws in Tanzania in considering the existence of the opposing
interests between an employer and an employee thought it an ideal to have the dispute
mechanism machinery. This is mainly due to the fact that where there is the existence
of the opposing interest the occurrence of the dispute is the likelihood; therefore the
Security of Employment Act, the Employment Ordinance, the Industrial Court Act
and the Labour Institution Act establishes the mechanism of dispute settlement.

The Security of Employment Act is mostly applicable to cases of summary dismissal

and disciplinary penalty. In the Conciliation Board which is the quasi judicial it
composes of the chairman and two members one representing the interests of the
employer from the Federation of Tanzania Employers and the other representing the
interests of the employee from the trade Union.

The same spirit of balancing the interests of both an employee and an employer is
reflected in the resolution of dispute under the Industrial Court Act which mainly
deals with the collective disputes and the disputes of an employee who is not the
member of the trade union or an employee who is not an employee within the
meaning of the Security of Employment Act example the casual employee. Like in the
Conciliation Board the interests of both employee and an employer are well
represented as the composition of the Industrial court takes into account their
representation.

Therefore the establishment of these dispute resolution mechanisms by the labour

laws in Tanzania is the recognition of the existence of the opposing interests between
an employer and an employee. The Labour institution Act has advanced further as it
has established the Labour Court742 which will work as the division of the High Court
of Tanzania separate from the main registry of the high court.

The existence of the opposing interests between an employer and an employee has
necessitated the laws to recognise the existence of strikes and lock outs. In the
741
Section 83 of Employment Ordinance
742
This court is established under section 50 of the Labour Institution Act and the matters reserved for
the determination by this court are provided for under section 94 of the Act.

366
Employment and Labour Relations Act these are recognised under part VII of the Act.
The strike is the result of the dispute of interest between an employer and an
employee and in most cases this dispute of interest is the collective interests 743. The
strike is the right of the employees and the lock outs is the right of the employers.

CONCLUSION

To conclude, generally in any contract of employment the existence of the opposing

interests is the coherent feature that labour laws in Tanzania have strived to regulate
the situation by labour legislations which have played a great role in interpreting and
balancing the conflict of interests. The enactment of the legislations and the
interpretation provided by of the courts on the matters before it 744 have facilitated
dearly in the solving of the problems caused by the existence of the conflicting
interests.

Qn: The Employment Ordinance Cap 366 defines contract of service to mean:
“Any contract whether in writing or oral, whether expressed or implied, to
employ or to serve as an employee for any period of time or number of days to be
worked, or to perform a journey or to fulfill any ticket and includes a foreign
contract of service”

Explain critically the meaning and the application of the underlined phrases to
labour law in Tanzania considering also their relevance in the new labour
statutes.

1.0 INTRODUCTION
The term contract of service has been defined under the Employment Ordnance745 to
mean any contract, whether in writing or oral, whether expressed or implied, to
employ or to serve as an employee for any period of time or number of days to be
worked, or to execute any task or piece of work or to perform any journey or to fulfill
any ticket contract and includes a foreign contract of service. There are three tests that
help to understand that there is contract of services. These tests includes, control test,
organizational test and multiple test.

Control test is also called a classic test. For there to be a contract of service, it must be
proved that, the employee worked under the control of another person (employer) on
what he was doing, on how he was doing and on when he was doing his work in the
course of his employment. There are four indications of control test such as; control
(by the employer) over the power of selection of servant or employee; existence of
terms as to payment of wages and other remunerations; wages are paid according to
the days or weeks or month; masters power to control the methods of doing the work;
and masters right to suspend or dismiss.

743
However under section 77 of the Employment and Labour Relations Act the groups of the persons
listed in the section are not supposed to involve themselves in strikes.
744
For instance the case of KITUNDU SISAL ESTATE V SHINGO MSHUTI AND OTHERS
(1970) HCD 243 the case provided for the clear meaning of summary dismissal to mean termination of
the contract of service without notice.
745
Section 2 of the Employment Ordnance, Cap 366

367
Organizational test is clear elaborated in the case of STEVENSON, JORDAN AND
HARRISON LIMITED v. MC DONALD AND EVANS746 whereby Lord Denning
stated that,
“…under the contract of service, a man is employed as part of the
business and his work is done as an integral part of the business.”
Again in the case of BANKVOOR HANDELENS v. STANFORD747 it was observed
that the test of being the servant depends on whether the person is part and parcel of
the organization.

Multiple test is the recent and applicable test developed in Tanzania as it was
observed in the case of D.P.P v. ELIATOSHA MOSHI AND ANOTHER748. The it is
rather the combination of the above two tests that is Organizational and control test
and other factors. Actually, it uses common sense in identifying it, for example it
looks on things like employers power to select suitable employee; the employers
power to dismiss or terminate an employee; the manner of payment of employee. It
also looks on the integration of the work of the alleged employee to a business of the
employer.

In this work, we are going to explain critically the meaning and application of the
above underlined phrases to labour laws in Tanzania and to consider their relevancy
in the new labour statutes.

Whether in Writing or Oral

A contract of service can either be in form of writing (written contract) or in verbal
form i.e. oral contract.

Written contract of service are those contract, which the employer is required by the
law to reduce them into writing and should be in accordance with the provisions of
Part V of Cap 366. These includes contract made for a period of or exceeding six
months or a number of working days equivalent to six months; foreign contract of
service i.e. a contract with a foreigner or employment which differ materially from
those customary in the district of employment for similar work 749. In this kind of
contract, the employee must indicate his consent either by signing the same or by
affixing the impression of his thumb or finger750

Oral Contracts of service are those contracts, which are not required to be made in
writing751. Part IV of the Employment Ordinance provides for Oral contract. In order
for any such contract to be valid and binding on the parties, the employment must
commence within one month from the date of the contract. 752 The fact that the
contract made is oral does not bar it from being recorded in writing. It is a mandatory
obligation of every employer to prepare and maintain, or cause to be prepared and
maintained, a record of contract for every employee employed by him under an oral

746
[1952] 1 TLR 101 CA
747
[1953] 1 QB 248
748
[1983] TLR 146
749
Section 42 (1) of Cap 366
750
Ibid Section 42 (2)
751
Ibid Sections 2 & 27
752
Ibid section 28

368
contract of service.753 This does not apply to casual employment. In case there is no
written record, the statement of the employee as to the term and condition of
employment shall be conclusive evidence as to the existence of the oral contract. 754

Section 15 of Employment and Labour Relation Act755, gives a duty to the employer
to prepare and supply to the employee a written statement of particulars. This
statement of particulars will contain; name, age, permanent address; place of
recruitment; job description; date of commencement; form and duration of the
contract; place of work; hours of work; remuneration, the method of its calculation,
and details of any benefits or payment in kind; any other prescribe matter.

The new labour laws have discredited the existence of Oral Contract. The legislature
has done this by making it a mandatory requirement for every employer to furnish the
employee with the written statement of particulars. It can be argued that oral contract
is there only by implication. For instance, the contract with an employee shall be in
writing if it provides that the employee is to work outside the United Republic of
Tanzania.756It means that any other contract made within the Republic can either be in
writing or oral.

Thus, in a contract of service, the employee agrees that in consideration for

remuneration he will provide his work and skill in the performance of some service
for his master hence subjected to the employer’s control and hence all these have to
be reduced into writing.

Foreign contract of service

Foreign contract of service means a contract of service made within the territory to be
performed wholly or partially outside the territory, and includes any contract of
service with a foreign state757. These contracts are designed to carter for migrant
labours that were coming from far distances.
It is a mandatory requirement for a foreign contract of service to be in writing 14. The
procedure of the foreign contract of service can be drawn from Section 5815 that that it
shall take place before an attesting officer after an employee has taken medical
examination prior to leaving the territory. The same position has been maintained
under section 14(2)16 that states
“A contract with an employee shall be in writing if the contract provides that
the employer is to work outside the United Republic of Tanzania”.

753
Ibid Section 35
754
Ibid Section 35 (5), this position was adopted with authority in the case of MAHAZAM V SALUM
[1972] HCD 65 (HC)
755
Act No. 6 of 2004
756
ibid section 14 (2)
757
Section 2 of Cap. 366
14
Ibid
15
Ibid
16
The Employment and Labour Relation Act

369
 In both Cap 366 and Act No. 7 of 2004 makes it mandatory for foreign contract to be
in writing.
Express or Implied
The words ‘express or impliedly’ as applied in the definition of a contract of service
signify that a contract of service can exist by either express or implied terms of the
agreement by parties to such contract. In particular, express agreement means that an
employer and employee agree to set out duties and obligation that will bind them by
putting such agreement in writing. In other words, a contract of services becomes
express when parties to it set forth the express terms of a contract to bind them.
Normally the express terms include those relating to the scale or rate of payment
whether daily, weekly or monthly. Others include any arrangement for overtime pay
should that be the case, holiday entitlements, the existence of any pension scheme to
which parties required to subscribe, the job title and the length of notice which may be
served by either party if he opts to walk out of the contract of employment.758

In the other hand implied terms of contract of employment are those terms which are
used to fill gaps left by the non-inclusion of terms in a contract, that is, terms that
have not been expressly put into the contract. In other words implied terms attempt to
say what the contract ought to say, so that a court may be asked to decide what the
terms ought to be. In the case of LUXER (EASTBOURNE) Ltd. V COOPER759
implied terms were said to be those terms which are included because ‘it goes without
saying’. Implied terms can be inferred from reasonableness of all the circumstances of
the case at hand and facts of any employment. They may be implied by statute,
common law or usage or custom of trade.

The following can be some of the implied terms of employee to his employer; to obey
reasonable orders, exercise care at work, to maintain honest and confidentiality and
promote the employers business by not impeding it. To employer, the implied terms
may be; to pay wages, to exercise care, to cooperate and to provide work. Therefore,
basically, the express and implied contract of services can be drawn from the nature
of obligations and duties that parties undertake to fulfill.

In Tanzania, some statutory provisions in labour statutes as well as case laws explain
on how express and implied contract of services are applied.

It is the duty of employer to provide work to his employee in accordance with the
number of days expressly or impliedly provided for in the contract, failure to do so, he
shall pay to the employee wages at the same rate as if the employee had performed a
day’s work unless the contract is frustrated by act of God760. In the case of
MATHEW LEONARD KATO v NATIONAL POULTRY CO. LTD761, the matter
arose out of the implementation of declaratory judgment of the court in which the
appellant was declared to be in a continuous employment of the respondent all the

758
A.J Sikalumba, Legal Aspect of Employment Contracts and Dispute Settlement Schemes in
Tanzania,
p.12
759
Taken from G. Mcleish, ‘A’ Level Law Paper-II: Lecture Notes, p.410
760
Section 16, Cap. 366.
761
Taken from A.J. Sikalumba, Opcit. at p.14

370
time since his employment was terminated. It was stated, though obiter that, ‘so long
as payment of wages is one of the express terms of the contract of employment, the
employee fulfils his part of the bargain by placing himself under the control of his
employer who at once is required to assign him work. Whether or not is assigned, the
employee becomes entitled to his wages’

Furthermore, the Employment Ordinance provides that there must be express and
implied consent by the employee in case there is any change of residence of employer
or place of trade or business to a distance more than four miles from the place in
which such employee theretofore performed his services.762

The offences as mentioned above are in no way established but to give statutory
implied terms of obligations that employer and employee owes each other in a
contract of services. In the case of R V SARWAN SINGH763 the accused was
brought before the Morogoro District Court on charge of contravening the provisions
of section 149(a) of the Employment Ordinance. He was found guilty and ordered to
pay fine. The court is empowered to direct any such fine when recovered to be applied
to compensate any employer, employee or other person for any wrong done or
damage sustained by him by reason of the act or thing in respect of which the fine or
sum was imposed or recovered by the reason of the non-performance of the contract
of the service.764*

In addition some terms of a contract of service can be drawn from usage or custom of
trade at the work place. In the case of JANETH LESILWA V TAUSI
SWALEHE765 the appellant was employed by the respondent as an attendant in the
beer store by an oral contract. The respondent had also requested the appellant to
collect rent from her tenants on her behalf. The appellant quitted her employment on
the alleged failure to account for business profits and collected rent. On appeal to the
High Court, it was stated that:
“The duty of an employee to his employer are inter alia the exercise
of diligence, skill and care in the running of the employer’s business
and rendering of profit and other moneys carned or received. These
are matters that are implied in any contract of service. Deviation
there from would be an act of negligence and tantamount to a breach
of contract. This would give the employer the right of action for
damages to compensate the loss occasioned by the breach.”

Under the Employment and Labour Relations Act there is no clear wording of the
statute concerning the express and implied contract of service however these can be
inferred from some provisions of the statute. For instance the Act under section 19(1)
provide for hours of work, that is, the required time of work is 12 hours and in section
19(2) it provide for number ordinary days or hours that an employee may be permitted
or required to work, that is, six days in any week, 45 hours in any week and nine
hours in any day except in accordance with an agreement as provided under section
19(3)

762
Section 18, Cap. 366
763
Taken From A.J. Sikalumba, Opcit. at p.15
764
Regulation of Wages and Terms of Employment Ordinance, Cap. 300 as amended from time to time
765
[1981] TLR 14

371
Furthermore, the Act provide for night work, break in working day, daily and weekly
rest periods, payment of remuneration, annual leave, sick leave, maternity leave
paternity and other forms of leave.766and the Act under section 102(4) impose among
other things penalties to any person convicted for offences relating to payment of
remuneration and deduction of remuneration.

It is therefore clear that the above-mentioned provisions should be the basis of any
agreement of the employer and employee whether express or implied.

To Employ
Blacks law dictionary defined the word to employ as to engage in one’s service; to
hire; to use as an agent or substitute in transacting business; to commission and intrust
with the performance of a certain acts or functions or with the management of one’s
affairs; and when used in respect to a servant or hired labourer, the term is equivalent
to hiring, which implies a request and a contract for compensation. To make use of, to
keep at work, to entrust with some duty

The word “Employed” connotes that there is a relationship brought about by express
or implied contract of service. The employee renders service for which the employer
engages him and the employer pays the employee in cash or paid as agreed between
them or statutorily prescribed. This is clearly stated in the case of WORKMAN’S
FOOD CORPORATION OF INDIA V. M/S FOOD CORPORATION OF
INDIA.767

In referring to Section 2 of the employment ordinance, cap 366, the term employ is
defined in relation to the person employing, means to use as employer the service of
any person under a contract of service.

The application of the term can be seen under section 16 of the employment ordinance
that, every employer is duty bound to provide work to the employer in accordance
with the contract during the time for which the contract is binding.

Again, the applicability of this term is found under the new law 768 that is Section 14
(1) that, a contract with an employee shall be of the following types;
(a) Unspecified period of time
(b) Specified period of time for professionals and Managerial cadre
(c) A contract for a specific task

For any period of time or number of days to be worked.

766
767
AIR 1985 SC 670, 674
768
Employment and Labour Relation Act, 2004

372
The phrase means the contract period in which the employee expressly or impliedly
agrees to offer his labour/skills to the employer for the consideration of wages. There
are different kinds of contract period that differ both in material and in character.
Contract period may be for the number of days either daily, weekly or for monthly
period.

The wages are payable to employee in respect of worked period. Wages in this respect
have to be calculated on the basis of the worked hours. Ordinarily the law requires
that the employee have to be retained for work for not more than the agreed period.
However, parties may agree for overtime work in which case the employer has to pay
the employee for any extra time worked at the rate prescribed by the law769

Moreover, any person enter into contract of service to work for an employer for a
stated number of days out of a greater number of days and, under the terms of the
contract the employer is liable to pay wages only in respect of the days on which such
employee has in fact worked, the contract shall be deemed to be a monthly contract at
a monthly wages equal to the daily wage multiplied by 26 as per section 33(1) of
employment ordinance.
Where any employee has been employed on daily contract by the same employer for
not less than 280 days during any period of 12 consecutive months, the employee
shall be deemed to have been employed during such period of 12 months on monthly
contract at a monthly wages equal to the daily wage payable to him on the last of such
days during which he was so employed multiplied by 26770.But this cannot apply to an
oral contract entered into for a period of a day or for any greater period, where the
wages are calculated by reference to the whole contract period.

The Employment and Labour Relation Act771 provide for three forms of contract,
which are contract for the Specified period of time, the contract for specified period of
time for professional and managerial cadre and contract for unspecified period of
time. In this Act an employee should not work for more than ordinary hours i.e. not
exceeding 9hours a day, 45 hours in a week and 6 days a week 772. Number of days
may be extended when there is agreement with the employer. However, even if the
period has been extended, the number of overtime hours should not exceed 50hours a
mouth773.

The general rule is that the employee is to be paid only for the number of days that he
has worked, nevertheless, the are exception to this general rule, which are situation
where the employee is taking a leave from work, such as Annual leave 774, maternity
leave775 or sick leave776. Under the new labour law, have introduced another form of
leave that is Paternity leave777 for male employee

769
See The Regulation of Wages and Terms of Employment Ordinance, Cap 300 (as amended) and the
regulations made there under which are responsible for the regular adjustment of the rates of overtime
pay.
770
S. 33(2) of Employment Ordinance
771
Section 14, Act No. 6
772
Ibid S. 19(2)
773
Ibid S. 19(5)
774
Ibid S. 25A (1) (a)
775
Ibid S. 33
776
Ibid S. 32
777
Ibid S. 34

373
CONCLUSION
In conclusion, it suffice to say that, the underlined phrases in the question are of
paramount importance in determining the rights and liabilities as between employer
and employee once it has been established that, it is a contract of service as it has been
discussed above. In contrast, it could have been impossible to enforce those rights and
liabilities in either tribunal or the court of law when a dispute has arisen.

Qn: “By and large, the body of Tanzania’s labour law remain status-oriented”.
Critically discuss this observation with specific reference to the manner in which
relevant statutes in Tanzania treat employees’ access to courts and other
tribunals. Is the position still maintained by the newly enacted labour laws?
1.0 Introduction

Labour la w is that branch of law which is basically concerned with the various
aspects of masters - servant or employer employee relationship.

A major concern in labour law is mainly on the aspect of labour power that is capacity
of a person to work and the role that branch of law plays in regulating the relationship
between capital and labour in the process.

Labour laws deal with many incidents and not only incidents of individual contract of
employment. A good example is the relationship between employers’ federations and
trade unions which represent employees. Thus, the labour law takes care of the
interrelationship between management and the labour.

In addition to the above, labour laws also make provision relating to settlement of
dispute between the parties; disciplinary measures; employment standard; health,
safety and welfare of the employees; formation of various organizations for the
welfare and protection of the either party (employer /employee) and so on. In short
the concern of labour laws is to regulate conditions of employment for the employers
and employees.

2.0 The status of the Tanzania’s labour laws.

The body of Tanzania’s labour law can be categorized into two folds. There are old
laws which are still applicable to present and the newly enacted laws which are yet to
be enforced. As far as the quotation in the question at hand is concerned, we are of the
opinion that the body of Tanzania’s labour law is to a large extent status-oriented.
However, the extent of this differs as far as old and newly enacted labour laws are
concerned.

374
2.1 The status of the old laws.

The assertion that labour laws are status oriented can be justified by old labour laws
especially the Security of Employment Act, The Industrial Court of Tanzania Act and
the Government Proceedings Act. These laws make provisions in respect of procedure
to be followed and jurisdiction of respective courts and tribunals basing on the status
of the parties involved.

Under Security of Employment Act it is a general requirement that all disputes

relating to termination of employment or summary dismissal of an employee must be
referred to the Conciliation Board. This is a requirement of law which is also found in
the case of JUWATA V. KIUTA778. However, basing on their status the law exempts
the management employees to undergo that procedure and instead they may refer their
matters directly to the court of law.
According to S.40A of the Security of Employment Act, where an employer
terminates the employment of any employee or summarily dismisses him and the
employee is aggrieved by such termination or dismissal the employee may refer such
termination or dismissal to the conciliation board. This section indirectly exempts the
management employees from referring their grievances to the Conciliation Board due
tom the fact that they are not employees for the purpose of Security of Employment
Act779. This position was reiterated in the case of JUWATA V. KIUTA (supra). In
this case the judge stated:

“Under the provisions of section 4 paragraph (e) of the Act, any person who is
considered by a labour officer to be a member of the management of a
business is not an employee for purposes of proceedings under the Act.”780

Moreover, the case of DAVID KAMUGISHA MULIBO v BUKOP LTD -

BUKOBA781 clarified on this issue by stating that the opinion of the labour officer
was no more than a mere opinion which the court was not bound to follow.

Under the Industrial Court of Tanzania Act, 1967, the law is to the effect that the
industrial court shall entertain matters relating to collective disputes. This point was
stressed by Maina J in JUWATA V. KIUTA (supra) where he stated that;

“it is true, in my view that the Permanent Labour Tribunal Act deals with
collective disputes.”

But again, basing on their status as employees, the law gives some categories of
employees an opportunity of referring their matter to the court under their individual
capacity. These employees, according to the provisions of section 5 of the Act No. 3
of 1990782, are entitled to institute, before the industrial court, a trade dispute between
them and their employer in their individual capacity.

778
[1988] TLR 146.
779
S.4 (e) of Security of Employment Act
780
Ibid
781
[1994] TLR 217
782
An Act to amend the Permanent Labour Tribunal Act, 1967 and establish the Industrial Court of
Tanzania. This Act also has amended the principal Act by deleting the words “Permanent Labour
Tribunal” and substituting it the words “Industrial Court of Tanzania”.

375
According to section 5(1A), the categories of employees who could refer their matters
to the industrial court of Tanzania in their individual capacity are;
(a) an employee who is not an employee within the meaning assigned to that term
by the Security of Employment Act;
(b) an employee who is not a member of the registered trade union;
(c) an employee who though a member of the registered trade union is not
supported by the field branch in the dispute with his employee (sic).

Having seen the different treatments afforded to the employee basing on their status, it
is now pertinent to discuss the employees’ access to court against employers. For the
purpose of this work, we have divided the employers into two categories of
Government Employers and Private Employers. The labour laws of Tanzania do not
operate in isolation, they work hand in hand with other laws of the land. For instance,
if the Industrial Court of Tanzania Act or the Security of Employment Act is silent
on certain procedure, then the Civil Procedure Code, 1966 will apply.

Therefore, in case the aggrieved Government employee wants to sue his employer, he
should first issue a ninety days notice of his intention to sue783 as it can also be seen in
SAID JUMA MUSLIM SHEKIMWERI V. ATTORNEY GENERAL784. The
procedure of suing the private employer is different since the employee will no be
required to issue a ninety days notice. This requirement of notice is based on the
status of the employer.

Thus from the above discussion it is obvious that the status of both the employers and
employees affect the manner in which the employee may have access to courts or
tribunals in case of dispute.

2.2 The Status of Newly enacted Laws

The newly enacted laws have not maintained the position which the old laws held.
Under these newly enacted laws there is no longer the categorization of the employees
into management and non-management employees or collective and non-collective
disputes. Under the new laws any employee whether casual, management or non-
management employee may refer his grievances to the labour court. Likewise, a group
of employees or an individual employee may refer his grievance to the labour court
without any restrictions.

However, in case of the employee’s access to court or tribunal the newly enacted laws
have made some minor changes. S.88 of the Employment and Labour Relations
Act785 provides that employees who can refer their matters or grievances for
arbitration are only those employed in the essential services. According to Act No.2
of 1993 the essential services include, water services; electricity services; health,
hospital and sanitary services; fire services; air traffic control and civil aviation
telecommunication; meteorological services; transport services necessary for the
operation of the foregoing services.
783
Section 6 of the Government Proceeding (Amendment) Act, 1994.
784
High Court of Tanzania at Dar es Salaam, Miscellaneous Civil Cause No. 3 of 1996 (unreported)
785
Act No.6 of 2004.

376
Furthermore, the new laws have retained the position which was in old laws that the
government employees must issue notice of intention to sue the government
employers. We have reached this position due to the fact that there is no any provision
in the new laws which oust the operation of S.6 of the Government Proceedings
(Amendment) Act, 1994.

Conclusion

From the discussion laid down above we are of the opinion that the newly enacted
labour laws have alleviated the inconveniences brought about by the cumbersome
procedures and unnecessary categorization of employees. It is the principle of Rule of
law that there should be no special courts and special procedures for a specific group
of persons in a given community. Thus the old laws by setting different procedure and
rights to different categories of employees were in violation of this rule. Even the
newly enacted laws must be reviewed on the point that arbitration should only be in
respect of employees employed in the essential services.

Qn: What is suspension as applied in labour law? Explain the causes, conditions
and the effects accompanied with it. Do the new labour law statutes recognizes
the rights of an employer to suspend an employee?
1.0 Introduction.

Industrial relation is a dynamic socio-economic process. It is “a designation of the

whole field of relationships that exist because of the necessary collaboration of men
and women in the employment processes of industry”. It is not the cause but an effect
of social, political, and economic forces.

It has two faces, like a coin, co-operation and conflict. The relationship undergoes
changes from thesis to ante thesis and then to synthesis. Thus the relationship starting
with co-operation soon changes into conflict and after its resolution again changes
into co-operation. This changing process becomes a continuous feature in industrial
system786

The strict law of master and servant conferred upon the employer an unfettered right
to hire and fire his employees. This traditional law of employer workmen relationship
was based purely on contract. Quite apart from the law of contract it is obvious that in
day-to-day running of the industry the management is required to take disciplinary
actions against the erring workmen. Initial decisions as to the maintenance of
discipline rest with the employer. These decisions, when made bona fide are related
to, and depend upon the considerations of the overall needs of the industry.

One of the disciplinary actions which may be taken by an employer is that of

dismissing an employee. How ever in some circumstances the employer is required to
suspend the employee before he dismisses him.

786
S.C Sirvastava (2000) Industrial Relation and Labour Laws, P.3

377
Suspension is a temporary discharge of an employee from the employment, pending
some other event usually an investigation into some act on the party of the employee
after which re-instatement might be had. This position was held in the case of
BENBROS MOTORS TANGANYIKA LTD V. RAMANLAL HARIBHAI
PATEL787

Suspension does not amount to punishment, it is only an interim measure and will last
till the application for permission to punish the workman and is made and the tribunal
passes an order thereon Therefore suspension as applied to labour law is just an
interim measure pending investigation and proceedings. In the case of HOTEL
IMPERIAL V. HOTEL WORKERS UNION788it was held inter alia that;

“The master can after holding proper inquiry temporarily

terminate the relationship of master and servant by suspending
his employee pending proceedings”.

2.0 Causes, Conditions and Effects accompanied by suspension.

Causes

An employee can be suspended from his employment for various reasons. The usual
causes of suspension are when an employee is accused of breaching disciplinary code
thus leading to misconduct or inability to perform his work. When this happens the
employer will have the right to suspend the employee pending the investigations of
the truthfulness or otherwise of the accusations.

Misconduct can be in either of the following forms; willful insubordination or

disobedience whether alone or in combination with others to any lawful and
reasonable order of a superior; theft, fraud or dishonest in connection with the
employer’s property; willful damage or dishonest in connection with the employer’s
business or property; striking work or inciting others to strike work in contravention
with the provisions of any law or rule having the force of law and many other forms.
These are provided for under the second schedule of The Security of Employment
Act, Act No. 62 of 1964

Conditions

An employer has the right to suspend an employee pending investigation and

proceeding. However before the employer suspends the employee he must take into
consideration various conditions:

The first condition, is provided for under section 22(2) of The Security of
Employment Act which state that,; where an employer imposes a disciplinary penalty,
other than summary dismissal on an employee for a breach of a disciplinary code he

787
(1967)H.C.D 435
788
(1959)2 LLJ 544

378
shall explain the reasons to the employee and report the same together with the
reasons and circumstances in writing to the labour officer.

Where an employer proposes to impose a disciplinary penalty on an employee for a

breach of a disciplinary code, he shall inform the chairman or the deputy chairman of
the committee established for that purpose, in writing of his intention to impose such
penalty and afford an opportunity into the committee to make such representation as it
deems fit in relation to the proposal. This is provided for under section 21 of the
Security of Employment Act, Act No. 62 of 1964

The employer must bear in mind that suspension does not amount to termination of
contract, rather a discharge of an employee from an employment pending
investigations and proceedings. Therefore the contract of employment does not come
to an end by the suspension of an employee. In the case of RAJASTHAN STATE
ROAD TRANSPORT CORPN V. SOHAN LAL & ORS789 the court held that a
suspended employee continues to be in employment and he will be entitled to benefit
of revised pay scales also.

More over, before suspension, an employer must discuss his intention with the
chairman of the committee and the employee must be accorded an opportunity of
making representations. This is provided for under section 21(4) of The Security of
Employment Act.

The other condition accompanied by suspension is that; the employer is required to

pay an employee half of his salary during the time of suspension; this is because when
investigation or the proceedings are pending the employee can not be said to have
breached any of his obligation towards the contract as yet (i.e. until it is proved so), it
is the employer who has discharged him from the employment hence he must pay him
half his salary. Section 21(4) of The Security of Employment Act provides for the
requirement of an employer to pay half salary on suspension.

Effects

The first effect of suspension is that; the employee will be temporarily barred to work
in the employer’s business. During the time of suspension the employee will not be
obliged to work for the employer. However if an employee is accused of misconduct
and an employer does not exercise his right of suspension and he does not provide any
work for the employee, he will be required to pay full wages to the employee 790. This
is because he will have breached his duty to provide work to the employee as required
by section 16 of The Employment Ordinance Cap 366. During suspension the
employee ceases to be under any duty to work 791. This is also provided for in the case
of BIRD V. BRITISH CELANISE LTD792

789
(1996) LLR 930 (RAJAN HC)
790
A.J Sikalumba, (2003), Legal Aspects of Employment Contract and Dispute Settlement Schemes in
Tanzania, P.67
791
D.W Crump(1980), Contract of Employment, P.69
792
(1945) 1 KB 336 at 341

379
When the investigation and the proceedings are complete and it is found out that the
employer is liable for misconduct or whatever he was accused of, the employer will
have a right to dismiss such an employee from the employment, thus the contract of
employment will be said to come to an end. In the case of SUNIL MADHUKAR
KULKARNI V. STATE OF MAHARASHTRA & OTHRS793 it was held that;

“Suspension of an employee alleged to be guilty of grave and

serious misconduct will be justified…. And when such
allegations are proved, the employer may exercise the right of
suspension over such an employee”

Conversely, when the allegation are found out not to be true, the employee will have
the right to be reinstated in the employment and be entitled to all his benefits. In the
case of K.K KIBAYA V. U.A.C OF (T) LTD794 it was held inter alia that;

”once there is an order for an employee’s reinstatement, he is

entitled to all his rights as the contract of employment has
revived with all its incidents”

Where an employee is suspended on half pay and it is found that the employer was
not justified on imposing such penalty, the employer will have to pay the remainder of
the half pay for all the months that the employee remained suspended, also the
employee may claim any damages for what he has suffered as a result of such
suspension.

2.1 Recognition by labour statutes.

The Employment ordinance and the security of Employment Act address the question
of suspension though not in detail. They give the causes of suspension and conditions
which accompanies suspension. More specifically, the Security of Employment Act
provides for what are the misconducts which may lead to suspension under its second
schedule.

The new labour laws (which are yet to be in operation), that is to say The
Employment and labour relations Act and the Labour Institutions Act are silence on
suspension.

3.0 Conclusion.

Suspension is of significance both to the employee and employer. However its aim
seems like protecting an employee against victimization by an employer. Because an
employee though suspended from work, he is paid half his salary until the allegations
of misconduct against him are proved. Meanwhile the employer is in loss because the
employee does not perform part of his contract during suspension.

793
(1999) LLR (BOM HC)
794
[1996] TLR 76

380
In our opinion the old labour laws and the new labour laws, does not cover the
question of suspension in detail because, these laws were and are more protective to
employers than employees and the law on suspension seems to be more protective to
employees than employers which defeats the employer-protective nature of the labour
statutes. This is a lacuna that needs to be filled.

QUESTION: Discuss the use of judicial review in the High Court of Tanzania to
challenge administrative decision on labour matters. What is the position of the
use of judicial review as envisaged in the recently enacted labour statute?

OUTLINE
1:0 INTRODUCTION

1:1 Concept of Judicial Review

2:0 MAIN BODY

2:1 The use of Judicial Review in the High court of Tanzania to challenge

administrative decisions on Labour matters

2:2 The position of the use of Judicial Review as envisaged in the recently enacted
Labour statutes.

3:0 CONCLUSION

4.0 BIBLIOGRAPHY

1:0 INTRODUCTION
Labour maters are those matters, which do exist or apprehended in the relationship of
Employer and employee. In this sort of relationship each party has its own interest as
far as labour matters are concerned. Since each party has its own interest, it happens
sometimes disputes arise and upon determination of the matter one side to that dispute
is not satisfied by the decision reached. What are the other alternatives of putting this
dispute to an end is the concern of our presentation as far as the labour laws are
concerned.

381
1:1 THE CONCEPT OF JUDICIAL REVIEW
Judicial Review is a great weapon in the hands of judges. It comprises the power of a
court to hold unconstitutional and enforceable any law or order based upon such law
or any other actions by a public authority which is inconsistent or in conflict with the
basic law of the land.795

Judicial review of administrative actions is perhaps the most important development

in the field of public law in the second half of this century. It is the most potential
weapon in the hands of the judiciary for the maintenance of rule of law. Judicial
review is the touchstone of the Constitution.

As observed by the Supreme Court in Minerva Mills Ltd. V. Union Of India796, the
Constitution has created an independent of judiciary, which is vested with power of
judicial review to determine the legality of administrative action and the validity of
legislation. It is the solemn duty of the judiciary under the constitution to keep
different organs of the state within the limits of the power conferred upon them by the
constitution by exercising power of judicial review as sentinel on the quivive. Thus,
judicial review aims to protect citizens for abuse or misuse of power by any branch of
the state.

Judicial quest in administrative matters is to strike the just balance between the
administrative discretion to decide matters as per government policy, and the need of
fairness. Any unfair action must be set right by administrative review. 797

In Tanzania judicial review is conducted by the High Court. In order for someone to
apply for judicial review, the following grounds must be present; breach of natural
justice, error of law in face of record, ultra vires and lack of jurisdiction.

2:0 MAIN BODY.

Administrative decisions however, are subject to judicial review by the High Court of
Tanzania, which is the only Court with inherent powers of review. However, on
observing the function of judicial review there is a ground of which application for a
judicial review can be sustained. But there are other grounds of which will be put on
the discussion as they seems to hold more water. The matter will be observed on two
legal perspectives as hereinafter provided.

2:1 THE USE OF JUDICIAL REVIEW IN THE HIGH COURT OF

TANZANIA TO CHALLENGE ADMINISTRATIVE DECISICIONS ON
LABOUR MATTERS.
Under the Industrial Court of Tanzania Act, every award and decision of the court
shall be final and not liable to be Challenged, reviewed, questioned or called in
question in any court. An aggrieved person could only go to the High Court to
challenge an administrative decision on labour matters on the ground of lack of
jurisdiction as stipulated by section 27(1C) of the Industrial Court of Tanzania Act. 798

795
C.K. Takwani, Administrative Law P. 236
796
(1980) 3 SCC 625
797
Tata Cellular v. Union of India, (1994) 6 SCC 651: AIR 1996 SC 11, 13.
.798 Act, No4 of 1967

382
The ouster provision is to the effect that, every award and decision of the Court shall
be final and not liable to be challenged, reviewed, questioned or called in question in
any court save on the ground of lack of jurisdiction in which case the matter shall be
heard and determined by a full bench of the High Court.

This provision is unconstitutional since it infringes the right of individual person to

go before the court of law. The unconstitutionality of section 27 (1C) of the Industrial
Court of Tanzania Act799 was questioned in the case of OTTU (on behalf of P.P.
Magasha) V. Attorney General and Another800. The facts are that, the appellant
had instituted a trade dispute in the Industrial Court arising from the alleged wrongful
termination of his services by his employer. The action was dismissed by the
Industrial Court. The appellant was advised that, no appeal lay against a division of
the Industrial Court in view of the provisions of section 27 (1C) of the same Act. The
appellant contended that, this provision infringed his rights under Article 13 (6) of the
Constitution of United Republic of Tanzania801, which guarantee the right of appeal
against a decision of a court of law. The Court held that, section 27 (1C) of the
Industrial Court of Tanzania Act802 is unconstitutional to the extent that it deprives the
person of his basic right to appeal or another legal remedy except on ground of lack of
jurisdiction. Thus, though the provision still exists in the statute book, it is no longer a
good law.

The effect of the ouster clause is also redundant where the decision is tainted with an
error on the face of the record, such as non-observance of the celebrated principles of
natural justice.
The ouster clauses are subject to the doctrine that, they do not prevent the court from
intervening in the case of excess of jurisdiction.803. It has been held by the House of
Lords in England in the case of Anisminic Ltd V. Foreign Compensation
Commission804 that, the ouster clause does not protect a determination which is out
side jurisdiction.

Under the Security of Employment Act805 also there is the ouster clause, which bar
the court of law to make judicial review. As per section 27 (1) (a) of the same Act
states that, “the decision of Minister on reference to him under section 26 of the same
Act, and subject to any decision on reference to the Minister there from, order the
decision of a Board on a reference to it shall be final and conclusive.

But the High Court of Tanzania tried to give an opportunity to an aggrieved party to
challenge that decision by way of judicial review as shown in the case of Tanzania
Air Services Limited V. Minister For Labour, Attorney General and The
Commissioner for Labour 806 The applicant company, aggrieved by the decision of
the Labour Conciliation Board of re-instating an employee whose services had been
terminated, referred the matter to the Minister for Labour under s. 26 of the Security

799
Act. No 4 of 1967
800
[1997] T.L.R 30
801
The Constitution of the United Republic of Tanzania, 1977 as amended from time to time.
802
Act. No. 4 of 1967
803
Wade, H. W. R. and Forsyth, C.F. , Administrative Law, (1994) , 7th Ed, p. 734
804
[1969] 2 AC 147
805
Act. No. 62 of 1964 (as amended)
806
(1996) TLR 217 (HC)

383
of Employment Act 1964, Cap 574. The Minister lawfully delegated his power to deal
with the reference to the Commissioner for Labour who confirmed the decision of the
Conciliation Board but gave no reasons at all for reaching that decision. Section 27(1)
of the Act stated that the decision of the Minister was final and conclusive. It was held
among the other things that, The provision that the Minister's decision is final and
conclusive does not mean that the decision cannot be reviewed by the High Court;
indeed no appeal will lie against such a decision but an aggrieved party may come to
the High Court and ask for prerogative orders.

Apart from the above provision, section 42(1) of Security of Employment Act,
excludes jurisdiction of the Court to hear and determine any matter with regard to the
liability of an employer to pay, or the entitlement of an employee to, any statutory
compensation where the decisions is already made by the Minister or the Board,
unless that proceedings is for the enforcement of the decision of the Minister or the
Board. Not only that but also the Act prohibit the Judicial review under section 42
(1A) of the same statute, which provides that,
No order of statutory compensation or re-instatement or re-engagement made
under this part shall subject to review by any court.
Therefore, due to the above discussion its obviously that, the former position under
the old labour laws on administrative decisions on labour matters were not challenged
by a way of judicial review. However court’s practices recognized the constitutional
right of an individual to challenge that decision as seen from various cases above.

3.0 THE POSITION OF THE USE OF JUDICIAL REVIEW AS ENVISAGED

IN THE RECENTLY ENACTED LABOUR STATUTES.
Contrary to the old Labour Laws, judicial review is allowed in the new statutes. The
new statutes are to the effect that, where a person is aggrieved with the decision of
arbitration award or decision of Essential Service Committee, he can apply before the
Labour Court for judicial review. This has been clearly provided under section 94(1)
(b) (i) and (ii) of the Employment and Labour Relation Act807. Furthermore, under
section 52 (1) of the Labour Institution Act808 show that, the Labour Court has all
powers of the High Court. Among the powers of the High Court is to make judicial
review, therefore the Labour Court has the same power to make judicial review on
Labour matters.

4.0 CONCLUSION.
From the discussion above, it is shown that, judicial review is entertained only in
the matter of lack of jurisdiction as provided under the Tanzania Industrial Court
Act809. In the Security of Employment Act, judicial review is not entertained, these
old labour statutes infringe the constitutional right of a person as provided in
Article 13(6) of the Constitution of the United Republic of Tanzania of 1977.The
new enacted labour laws allow for the judicial review as shown under the
Employment and Labour Relations Act of 2004 and Labour Institutions Act of
2004. This is a great consideration of the legislator to promote proper
administration of justice.

807
Act No. 6 of 2004
808
Act No. 7 of 2004
809
Act No. 4 of 1967

384
QN:
Explain clearly the extent to which Tanzania has complied with her obligations
under international conventions on labour matters

OUTLINE

1.0 Introduction

2.0 The concept of Labour Law

3.0 How Tanzania has complied with her international law conventions on labour

matters

-obligations in relation to forced labour

-obligation in relation to child labour

-obligation in relation to child labour

-obligation in relation to discrimination

4.0 Conclusion

1.0 INTRODUCTION

Employment law can be said to be that law which regulate the relation ship between
an employer and employee. The employer employee relationship is contractual. To
ensure good working conditions and increase in production it is essential that the
employer employee relation is maintained. Due to this there have been both national
and international concern on labour matters. It will be our concern in the question
given to explain as to the extent to which Tanzania has complied to her obligations
under international law convention on labour matters.

2.0 THE CONCEPT OF LABOUR LAW

The rationale behind the enactment of labour laws aimed at regulating the relationship
between the employer and employee. The history of employer and employee
relationship is to the effect that employees had for quite a long time been exploited
and their rights infringed by the employers. Thus the employees were not protected.

In regard to the question given, it can be said that, the labour laws being a very
important issue which touches most of peoples lives daily, has received response from
many countries in the world. There have been several convention relating to labour
law that has been made and are ratified by many states. The international Labour
Organisation (ILO) is an international organization which deals with labour maters. It

385
has been on the front line to ensure that the labour laws in states conform to
international standards. This is achieved by the making of conventions which
regulates matters in labour laws.

Tanzania has been one of the countries which have ratified many international
conventions which regulates the labour law matters. The conventions provide
obligations which are to be fulfilled by the state in regard to the labour law.

It is our concern in the question to deal with, how Tanzania has complied with these
international convention obligations in labour matters.

It should be known that currently Tanzania has what can be categorized as two kinds
of statutes dealing with labour matters. One regime is that of old laws which
constitutes of statutes such as , Security of Employment Act 810, Employment
Ordinance811, Industrial Courts Act812, Workman’s Compensation Ordinance813, just
to mention a few of those which are principle legislations. The other category is that
which constitutes of the new statutes which consist of employment and Labour
Relations Employment Act814 and the Labour Institutions Act815. The old laws are still
in operation the new Acts are not yet in operation.

In the first report of the task force on labour reform chaired by Mrosso J, it is stated
that the “International Labour Organisation recently highlighted fundamental rights in
the workplace in the new global economic order and the importance of those rights for
social and economic development. It is further said that though it is good to trade but
globalization attacks workers right and due to this ILO adopted a declaration on
fundamental principles and right at work place in 1992, which aimed to ensure that
social progress goes hand in hand with economic development. This implies that; the
concept of globalization has brought new obligation to states in regard to labour
matters.

3.0 HOW TANZANIA HAS COMPLIED WITH HER INTERNATIONAL

LAW CONVENTIONS ON LABOUR MATTERS

OBLIGATIONS IN RELATION TO FORCED LABOUR

Forced labour includes a work or service exacted on a person by a state, private
person, or organisation whether legally or illegally816. The term has also been defined
under Article 2 of convention 29 817 to mean any work or service which is exacted
from any person without consent and under menace of penalty. It is also called
Compulsory labor.
There are two international conventions which deals with forced labour and which
Tanzania has ratified and registered. These are:

810
Cap 387 R.E 2002
811
Cap 366
812
Act no 41 1967
813
Cap 263 1949
814
Act no 6 2004
815
Act no 7 2004
816
First Report of the Task Force on Labour Law Reform: Ministry of Labour, Youth Development
and Sports
817
Forced Labour Convention 1920 no 29

386
 1) Forced labour convention 1929 No 29 registered on 30th January 1962
2) Abolition of forced labour convention 1957No 105 registered on 30th January
1962

Forced labour convention 1929

The convention imposes obligation on the states that they should eliminate all forms
of forced labour and obliged to Act against the forced labour.
However some forced works have been exempted by the convention. They include:
Compulsory military service laws, working forming part of normal civil obligation of
citizens of a full self governing country, a work resulting from court order, minor
communal works and works during emergencies818 for example in event of natural
disasters such as floods and earth quake.

Abolition of forced labour convention 1957819

This convention imposes obligation s on state to abolish compulsory labour. Under

Article 1 paragraph 1 of the convention820 there is a specification on the abolition of
forced labour. The convention requires the abolition of any form of forced labour
where such labor is used as a means of political coercion, education, or as punishment
for holding or expressing political views which are against an existing political
system, or where such work is used as a means of mobilizing and using such work
for economic development, or where it is used as disciplinary measure in labour
matters or punishment in participation in strike or where such is used as a means of
discrimination of any kind. Thus if the work is used as a means of achieving any of
the above mentioned ways then the state is obliged to prohibit such kind of work.

After looking into the obligation impose by the conventions its time now to look into
how Tanzania has complied with the international convention.

The constitution of the United Republic of Tanzania 1977 as amended here in after
referred to as the Constitution prohibits forced labor, as provided under Article 25(2)
of the Constitution. However the Constitution under Article 25(3) (a) to (d) permits
the exaction of some works which are for national development or as a means of
execution of court order. The performance of such duties does not amount to forced
labour.

In the employment ordinance under Part XI it provides for forced labour. The Act is
to the effect that the forced labour is prohibited and any person who compels another
to do it is guilty of an offence821.

However, Section 122 and 125822 authorizes the minister to exact or impose work to a
person823. The law further provides that a refusal to do such a work imposed by the

818
Article 2 paragraph 2 of convention 29
819
Convention 105
820
Loc cit
821
Sections 122, 124, 127
822
ibid
823
See section 125(1) and 126 of employment ordinance ibid

387
minister or a person whom the minister has delegated power over such a matter is an
offence, as provide under section 127824. Thus the provision evidences that to a
certain extent the labour laws in Tanzania do not comply with the international
convention on labour matter. This is because the two conventions dealt with above
prohibit the forced labour in the areas Tanzania allows.

On the other hand, Tanzania can be said to have complied with the international
conventions on labour matters when looking in the provisions of section 123,
employment ordinance (supra) which is to the effect that private persons are
prohibited from compelling others to do he force labour.
The employment and labour relation Act has retained what was previously provided
under the old laws in relation to the concept of forced labour under section 6 of the
Act.

OBLIGATION IN RELATION TO CHILD LABOUR

Child labour means employment or work given to a person who has not attained the
age of majority. The report states that child labour is scourge. It stunts the
development of a child and that it exposes the child to hash, exacting and sometimes
dangerous environment825

International laws have prohibited child labour. There are two conventions which deal
with the aspect of child labour and which has been ratified and registered in Tanzania
these are:
1) The minimum age (industry) 1973 Convention 826
2) The worst forms of child labour convention 1999827

The Minimum Age (Industry) Convention

This convention was the first which dealt with the abolition of child labour. It sets a
minimum age of employment to be 13 to 15 years and not less than this age so as to
allow children under the age for compulsory schooling. In the case of hazardous work
the age is 18 years.

The Worst Forms of Child Labour Convention

The convention aims at elimination of child labour. By ratifying this convention the
state has obligation of ensuring immediate elimination of worst forms of child labour.
This kind of labour as stipulated under Article 3 of the convection828 includes;
All forms of slavery and practices similar to slavery use/procuring/offering of a child
for prostitution or the production or performance in pornography, or involving a child
in illicit Activities with particular reference to production and trafficking of drugs or
any work that may jeopardize the health, safety or morals of a children.

824
ibid
825
Report ibid p 39
826
Convention no 138
827
Convention no 182
828
Ibid

388
The convention imposed an obligation to the state to make legislations relating to
child labour and which will provide penalties for those in breach of the law. To keep
record by the employers who employs children of age between 15 to 18 years.

Now considering the labour laws in Tanzania so as to see how they comply with the
international convention. It should be known that the problem of children labour is
also prevalent in Tanzania. The Tanzania labour laws provides for conditions of
employing a person under the age of 18 years.

The laws prohibits the children of under the age of 12 years from working in the
formal sector, as reflected under section 77(1) of Employment Ordinance829
employing such a person is an offence punishable by law830.

Further, the ordinance stipulates that; a prescribed age (age at which a child is allowed
by law to work) is a prescribed age of 12 years, or 12 years to 15 years, as provided
for under prescribed under section 77 (3)831. A child under the prescribed age may be
employed on daily wage on the day to day basis as provided under section 78 (1)
(a)832 however such a child must have been permitted by parent as provided under
section 78 (4) of the employment ordinance and upon such terms as that he should
return each night to the place of residence of his parent or guardians as provided
under secion78 (1) of the employment ordinance.

The law prohibits under provisions of section 79(1), the employment of a child or
young person in any employment which is injurious to health, dangerous or otherwise
unsuitable.

However, these provisions are not applicable to children working on family farms or
herding live stocks.

The labour laws in Tanzania have not to a certain extent performed their obligation
under convention 138 and convention no 182. This is due to the fact that they are in
contravention of the age in which child is to be employed. The convention stipulates
that age at which a child can be employed should be 15 to 18 years. In Tanzania
labour law allow a child of 12 to 15 years to be employed. Further the convention
restricts children from working in mines but in Tanzania under section 88 (1) a young
person is allowed to work in mines.

The position under the employment and labour relations833 in relation to the age of a
child834 to be employed complies with what has been stipulated under Article 5(5) of
convention no 138. That a child of an age of 14 years can be employed in light work
the only problem with the law is that it does not stipulate as to what amounts to light
work. However this is one side of the coin where by we can see the compliance of the
law with the international conventions. This is because under article 7 of the
convention 138 it is prohibited for a person who has not attained the age of 18 years

829
Cap 366 ibid
830
Section s 77 (2) ibid
831
ibid
832
ibid
833
A new legislation which is not yet in force which repeals the currently used labour statutes
834
Section 5(2) of the employment and labour relations Act

389
to work in hazardous works. The employment and labour relations Act to this point is
to the effect that, though the statute prohibits a person who is below the age of 18
years to do hazardous works, it allows such a person to be employed in such
hazardous works provided that there is a written law which provides for the same.

It can be said that the new law has mentioned some hazardous works which are
prohibited. The effect of this is that at some instance other hazardous works will be
excluded from the list

OBLIGATION IN RELATION TO DISCRIMINATION

Discrimination in employment and work occurs in variety of forms and in a range of
different settings835.
Discrimination is one of the major issues that the international labor organisation and
the international community at large have been trying to abolish especially in relation
to employment.
Discrimination can be direct in which case a law specifically cite a particular ground
for example sex, race religion to deny equal opportunities or indirect it can be indirect
in which case rules or practices appear on the surface to be neutral but in reality they
lead to exclusion. A requirement that only persons of a certain height are required for
a job amounts to discrimination because persons who are not of that height are
excluded.

Discrimination ranges from that of race, sex, nationality, health (currently reflection
has to be made to victims of HIV/AIDS pandemic whore discriminated), disability, or
age. This kind of a person do not affect only the respective person but the society at
large, in the sense that discrimination hinders; innovation, practice of skills which
could have been done had it been not for discrimination.

The ILO provides that quality of work means that all individual to develop fully the
knowledge, skills and competence that are relevant to the economic Activities they
wish to pursue.836
Looking at the international level it can be seen that some conventions have been
passed and ratified which deals with the abolition of this concept.

1) The discrimination (Employment and Occupation) Convention 1988 no 111

2) Equal Remuneration Convention 1951 no 100

The discrimination (Employment and Occupation) Convention 1988

The convention deals with prohibition of all kinds of discrimination. It calls for states
to promote equal opportunities and treatment which has been explained above.

Equal Remuneration Convention 1951

This convention specifically deals with remuneration as its name suggests. It requires
equal pay and benefits for men and women for work of equal value

835
Report ibid p 45
836
The report quoting the ILO’S fundamental conventions in focus programme on promoting the
declaration: Geneva ILO P 162

390
Discrimination is an international problem, and to solve it has been suggested that, in
relation to labour laws to eliminate the problem then it can be regulated as a part of a
general labour statute, or a specific statute that will deal with he matter or workplace
discrimination can be prohibited by condemning it as an unfair practice.

In relation to our labour matters we have first to reflect on the constitution under
article 9 of the constitution it is to the effect that state authorities and all; the agencies
there under have to ensure that there are equal opportunities for all citizens when
implementing their policies. This is supported by Article 12 of the constitution which
proclaims that all human beings are equal. This suggests that they have equal
opportunities regarding the thing to be achieved and hence reflecting the fact that the
law is against discrimination. The emphasis to this section is can be seen on Article 13
of the constitution which prohibits discrimination by stating that all persons are equal
before the law and that it prohibits any authority from making any law which is
discriminatory. It can also be said that the Article 22(2) of the constitution provides
for he fact that every person is allowed to work and under article 23(1) of the
constitution it is provided that a person who has worked is entitled to get a just
remuneration for the work done.

To some extent the aspect of discrimination as required by international labour

statutes has been complied with. This is because in our labour legislations there are no
provisions which affect the rights of employees who are citizens as a result of
consultation. However the National Employment Promotion Act which gives
preference to citizens in getting employment can be said to cause discrimination to a
certain extent. This is due to the fact that, it seems to contravene the Articles of the
Constitution which proclaims that all human beings are equal, but such is not true as
far as the persons who are not citizens837.

It is our view that the National Employment Promotion Act by giving preference to
citizens is not discrimination as every country should be allowed to make some labour
laws which will help their citizens in their socio-economic development.

The new Act838 dealing with labour matters which though enacted it is not yet in
force i.e. has complied with the obligation imposed by the convention 111 under
Article 1(1) (a) of the convention which provides for the prohibition of
discrimination. In the new Act section 7 prohibits discrimination in the work place
and section 8 deals with prohibition of discrimination in trade unions and employer
associations

837
This is because if a citizen and a non citizen applies for a job then in case they all qualify for the job
the citizen will get preference in getting the job. This idea has been supported by the mrossos report
on reformation of labour matters which recommended that the job requirements which are fixed by
the employers including those giving preference to citizens under he national employment promotion
Act should be incorporated in the legislation.
838
Employment and Labour Relation Act

391
 OBLIGATION RELATING TO FREEDOM OF ASSOCIATION AND
COLLECTIVE BARGAINING
Freedom of association means, freedom of employer or employee to unite for the
purpose of regulating the relationship between themselves. i.e. either single group
(employees or by regulating relationship between employer and employees.

Collective bargaining means negotiation about pay, working conditions etc between a
trade union and an employer839

Freedom of association and collective bargaining are among fundamental rights in

labour laws they have been also fixed in the ILO conventions

1) Convention on freedom of association and protection of the right to organize no 87

2) Convention on right to organize and collective bargaining no 98

Convention on Freedom of Association and Protection of the Right to Organize

Dealt with matters related to employee and employer’s rights to freedom of

association. The convention gave out four main principles in which the freedom of
association can be exercised. These principles are:
 Every one is entitled to freedom of association
 The absence of the need for previous authorization to establish organisation
 Freedom of choice with regard to the membership of such organizations840
 The right to participate in the lawful Activities of the organisation subject only
to its own rules.

These principles manifest the obligations provided under convention 87 to member

states which ratified it. The states are obliged to protect employees from Acts of ant
union discrimination. This means that in order to secure or maintain employment,
workers can not be made to relinquish trade union members or because of their
participation in trade union Activities outside working hours841 or with the consent of
the employer within working hours.

The ILO convention 87 is to the effect that the army and the police should not join the
organizations. Hence they are excluded from labour legislation regulating freedom of
association.
Also the convention prohibits the distinction between public and private sector
workers as far as the involvement in freedom of association is concerned.

The conventions further guarantee the collective rights of trade unions and employers
association. The right includes the right to form a federation without prior
authorization, the right to plan and organize their own Activities, right to participate
in lawful Activities, right to participate in the lawful Activities of the union to affiliate
with, and participate in the affairs of any international organizations including the
ILO and to give or receive, assistance from those organisation.

839
Oxford advv learn dict p220
840
Paragraph 44 of the report ibid
841
Paragraph 45, and 61 to 65 of the report

392
In relation to the concept of employment standard, the international conventions
imposes obligations to the countries that has ratified them such as obligation relating
to contracts of employment, hours of work, leave, termination of employment and
minimum wages. However for the sake of answering the question and the fact that we
can not explain each of these obligations we shall only deal with the obligation in
relation to minimum wage.

OBLIGATION IN RELATION TO MINIMUM WAGES

There are several conventions which deal with the regulation of minimum wages of
which Tanzania has ratified. The conventions generally impose an obligation to all
countries that has ratified them to establish minimum wage fixing machinery and also
to fix minimum wages if wages can not be effectively regulated through collective
bargaining. The conventions ratified by Tanzania includes the minimum wage-fixing
machinery convention 26 1928, the minimum wage fixing convention 131 1970,
protection of wages convention no 95 1949.
Under the old labour statutes, the law gave a minister the power to establish minimum
wage board which was obliged to inquire into the matter and take its
recommendations to the minister who in turn was to fix the minimum wage as
provided under section 4 (1) of The Regulation of Wages and Terms of Employment
Act842.

Under the new statutes the compliance to the requirements of the convention can be
seen under section 36 (1) providing for consultations with the social partners, section
37 which provides the factors to be taken into account when determining minimum
wage, and also section 41 (1) which provides that a wage order to be binding and
subsection 3 which gives the employee who has been paid a wage which is below the
fixed minimum wage a right to take the claim to court. This ensures that the minimum
wage is fixed and must be complied with as required by the conventions 843. Thus it
can be said that in regard to the minimum wage Tanzania has complied with her
international obligation imposed by the statute the reason being that the convention
provides for the either setting of the minimum wage or the establishment of
machinery to set for the same.

The other aspect to deal with is that of dispute settlement, as regard to the convention
we could not specifically identify a convention which deals with the aspect. However
the Report of the task force on labour reform under the ministry of labour, youth
development and sports provides that in 1951 the ILO adopted the Voluntary
Conciliation and Arbitration Recommendation no 92,; that the recommendation
focused on the initiation of voluntary conciliation machinery to assist in the settlement
of industrial disputes between employers and workers. It further emphasized that such
a machinery should be constituted of equal representation of employer and
employees, the proceedings should be free of charge, expeditious and within a fixed
time, also that the parties to be restrained to either strike or lockouts when the
proceedings are taking place.

842
Cap 300 R.E 2002
843
Conventions, 131,26,95.

393
 The law in Tanzania on the aspect of dispute settlement; under the old law several
machineries to deal with dispute settlement. The position under the new Act is that
there is to be established a commission for Mediation and Arbitration as provided
under section 12 and its functions under section 14 of the labour institutions Act 844. It
could thus be said that the new Act by establishing these machineries is performing
the obligations which were recommended by ILO in respect of labour matters
specifically on dispute settlement. It should be known that the body which will be
perfuming the mediation and arbitration is independent of the state845. Also it should
be known also that the trade unions and employer organizations are given
representation right on behalf of their members during the determination of the
dispute846.

4.0 CONCLUSION
Therefore it can be said that to a certain extent Tanzania has complied with
international conventions on labour matters, this is on the fact that there are some
conventions it has ratified and registered and there are some which it has ratified but
not yet registered. Tanzania in showing compliance to the international labour
conventions has enacted labour laws which takes into account several matters which
the conventions puts as an obligation to be complied with by the countries which are
signatory to it. There are more than 30 conventions which have been already ratified
in Tanzania out of many conventions. However in this work it has been covered just a
small part of the conventions because of the time factor. That is, the remaining part of
the conventions has been covered as annexure 1 of the work.

QUESTION 6.

While one of the objects of the Employment and Labour Relation Act, 2004 is to
give guarantee freedom of association as between employees on one hand and
employers on the other hand The Trade Union Act, Act No. 10 of 1998 has been
repealed.

Discuss in detail the weaknesses of previous labour laws on matters relating to

association and the promising position given by the new statutes.

OUTLINE.

1.0 INTRODUCTION.

2.0 HISTORICAL BACKGROUND OF TRADE UNIONS.

3.0 PREVIOUS LAWS RELATING TO ASSOCIATION BETWEEN EMPLOYERS

AND EMPLOYEES.

4.0 WEAKNESSES OF PREVIOUS LABOUR LAWS ON MATTERS RELATING

TO ASSOCIATIONS.

844
Act no 7 2004 ibid
845
Section 13 (1) ibid.
846
Section 16 (3) (b), (c) ibid

394
5.0 POSITION IN THE NEW LABOUR STATUTES.

6.0 OPINION.

7.0 CONCLUSION.

8.0 BIBLIOGRAPHY.

1.0 INTRODUCTION.

In Tanzania, person’s freedom of association is provided for under article 20 of

United Republic of Tanzania Constitution, 1977 as amended from time to time.
Employment ordinance, cap 366, which is the major labour law in Tanzania, provides
for the right while forbid employers to prohibit their workers to be members of trade
unions.

Tanzania, like other members of ILO, has been in the process of ratifying core ILO
Labour standards, which are intended to establish good relations between the
Government, business community and the labour force. The move is in line with the
Commitments Tanzania accepted in Singapore in 1996 and Geneva in 1998 in the
WTO Ministerial Declaration and in the ILO Declaration on Fundamental Principles
and Rights at Work adopted in June 1998. Tanzania ratified several conventions
relating to Freedom of association and rights to collective bargaining. These include,
Convention No. 98 (1949), the right to organize and to collective bargaining
convention I 1962. On February 2000, the parliament of Tanzania has ratified ILO
Conventions 87 on Freedom of Association, and in 1998 on the Right to Organize.

A number of civil society organizations represented the interest of key stakeholders.

The role of trade unions is to represent their members in various fora.

2.0 HISTORICAL BACKGROUND OF TRADE UNIONS.

Creation of trade unions.

Law did not create trade unions. The trade unions grew as a reaction against capitalist
prerogatives. In the beginning, law helped capitalist. It was against the development
of trade unionism. In almost all countries, the trade union leaders were severely
harassed by way of prosecution and persecution by the rich capitalist and state.

TRADE UNIONISM IN TANZANIA: A HISTORICAL OVERVIEW.

The rise of the trade union movement in Tanzania dates back to colonial days with the
introduction of permanent wage labour. The first organizational initiatives to form a
trade union, according to available records, were in 1927847. During that year African
Motor Drivers and Mechanics in Moshi formed a Motor Drivers' Union and even
attempted to stage a strike for higher wages (Shivji 1986:158). The union was
silenced by the colonial government and was not heard any more. A second attempt to
form a trade union was made in the 1930s by African Civil Servants. They formed the

847
Shivji, as quoted by Rwekaza in his paper.

395
Tanganyika African Government Servants' Association. However by its objectives
and aims the association looked like a staff association rather than a trade union. It did
not pose any threat to the government. It was a "white-collar" elitist organization
originating from Martin Kayamba's Tanganyika Territory African Civil Service
Association. It did not articulate demands aimed at furthering and defending the
economic interests of its members at work places. In August 1937 the dock workers in
wharfage companies formed the African Labour Union. It was really a "brain child"
of the shopfloor workers, the rank and file. The union had no intention of indulging
itself into labour related matters. It confined its scope to only social welfare functions
of mutual help during sickness, burial and unemployment. The union rules provided
that every member was obliged to obey his employer, to attend his work in time and
not to leave it before time without the permission of the employer. Every member had
a duty to learn to read and write, to pay his debts before demand, to pay his
government taxes, and to keep some deposits in the savings account One can argue
convincingly that the pre-1950 trade unions were largely apolitical in terms of
attempting to translate their social welfare interest at the micro level into political
demands at the macro level. Generally, the trade unions had no clear ideological
orientation.

In general, Tanzanian trade union history has passed through two major phases since
the 1950s. The first workers’movement was the Tanganyika Federation of Labour
(TFL) established in 1955. In the struggle for independence it worked hand in hand
with what was to become the ruling party (TANU). In 1964 the TFL was disbanded
and the National Union of Tanganyika Workers (NUTA) took its place. Just like TFL,
NUTA’s main objective was to promote the policies of TANU. Political changes in
the country brought with them the need to have a trade union that would cater for the
whole country. Jumuiya ya Wafanyakazi Tanzania (JUWATA) was established in
1979 and, as a mass organization of the new ruling party (CCM), it had to propagate
party policies. With the demand for multiparty democracy, the Organization of
Tanzania Trade Unions (OTTU) replaced JUWATA in 1991. The state wielded too
many powers over the trade unions. OTTU was the sole trade union body
representative of all employees in Tanzania. During the OTTU era some employees
were able to organize within their own trades e.g. The Tanzania Railways
Workers’Unions (TRAWU), the Tanzania Industrial and Commercial Workers Union
TUICO) and the Tanzania Union of Government and Health Employees (TUGHE).
Such unions were, however, not registered in their own right but as affiliates of
OTTU. Following major amendments, Tanzania Federation of Free Trade Unions
(TFFTU) was formed by eleven trade unions. The member unions are: Tanzania
Union of Government and Health Employees (TUGHE), Tanzania Plantations and
Agricultural workers Union (TPAWU), Tanzania Union of Industrial Workers
(TWICO), Tanzania Mines and Construction Workers Union (TAMICWU), Tanzania
Local Government Workers Union (TALGWU), Teachers Association (CWT),
Conservation Hotels, Domestics and allied workers Union (CHODAWU), RAAWU
and CTWU. These unions represent their members and are involved in settling
disputes arising between employee members and their employers. The latest
development is The Trade Unions Act No. 10 of 1998 that accommodates the demand
for multi-trade unions. The Act became operational on 1 July 2000. The Trade Union
Congress of Tanzania (TUCTA) is the national body of trade unions with fourteen
affiliates. An Act of Parliament formed it in 2002. TUCTA has about 320,000

396
members,30 percent of which are women.

1.0 PREVIOUS LAWS RELATING TO ASSOCIATIONS BETWEEN

EMPLOYERS AND EMPLOYEES.

The guiding law was The Trade Unions Act No. 10 of 1998. The law accommodates
the demand for multi-trade unions. The Act became operational on 1 July 2000.
The Act makes provisions for the establishment of the Office of the Registrar of
Trade Unions (Part II), the modalities of the registration of trade unions, the power of
the registrar, the requirements for unions to be registered and appeal procedures by
aggrieved parties (Part III), the formation of a federation of trade unions and
consultative bodies (Part IV and V), the management of trade union funds (Part IX),
rights and liabilities (part VII). It is important to note that in the new Trade Unions
Act both employees and employers are now free to form the Trade Unions of their
choice.
Under the Act, trade union means any combination, either temporary or permanent, of
20 or more employees, or of four or more employers, the principal purposes of each
are under its constitution the regulation of the relations between employees and
employers, or between employees and employees, or between employers and
employers, whether that combination would not, if this Act had not been enacted be
deemed enacted, and be deemed to have an unlawful combination by reason of some
one or more of its purposes being restrained of trade and include a federation.

The Registrar
The Registrar of Trade Unions is vested with the functions of the overall
Administration of the Trade Unions Act.848

Registration
Every trade union should be registered with the Registrar in order to acquire
Legitimacy within a month of its being established. A trade union for employees must
have at least twenty members,849 a while a trade union for employers must consist of
four or more employers.850 Registration can be cancelled for reasons elaborated under
section 15 of the Act. The right of appeal is guaranteed by section 16 of the Act to the
High Court of Tanzania.
Membership of a trade union
By law members must be above the apparent age of 14 years.851

Legal personality of a trade union

Once a trade union or federation is registered it acquires legal personality capable of
suing and being sued, owning property etc. 852

Expenditure of trade union funds

By law such funds are for strictly trade union matters only, e.g. payment of salaries,
legal consultancy, affiliation fees and service charges.

848
Part III OF Act No. 10 of 1998
849
Section 8 (1) ibid
850
Section 8 (1) b ibid
851
Section 32 ibid
852
Section 51ibid

397
Inspection of accounts
The law allows any member of a trade union, including the Registrar, to inspect the
account books. Any obstruction or impediment is a criminal offence.853

Clients under this law

Any employed person even from the Government Service, save for members of the
military forces, police force and prisons are clients, under this law. These categories
are exempted probably for security reasons.

Offences
All offences mentioned in this Act can be tried in the court of a resident magistrate.
Some of the offences include, failure to register a trade union, operating while not
registered or when the certificate of registration is cancelled. 854

Tanzania and the ILO

As a member of International Labour Organization (ILO) Tanzania has ratified
Convention No. 87. The provisions of the Trade Unions Act are in line with this
Convention.

Federation of Trade Unions and consultative bodies 855

An important event that took place after the Act became effective is the formation of
The Trade Unions’ Congress of Tanzania (TUCTA) as a federation replacing OTTU.
TUCTA was registered on 18 May 2001.

Two or more trade unions may form a federation. Furthermore, a trade union, with the
consent of its members, may affiliate with a registered federation and notice thereof
must be given to the Registrar. A trade union may also affiliate with consultative
bodies registered within or outside Tanzania with the approval of members and
notification thereof must be given to the Registrar within sixty days.

Members of TUCTA are:

· Tanzania Union of Industrial and Commercial Workers (TUICO)

· Tanzania Plantation and Agricultural Workers’ Union (TPAWU)
· Teachers’ Trade Union (CWT)
· Tanzania Seamen’ Union (TASU)
. Researches and Academicians Workers’ Union (RAAWU)
· Trade Union of Government and Health Employees (TUGHE)
· Communication and Transport Workers’ Union (COTWU)
· Tanzania Mining Workers’ Union (TAMICO)
· Conservation Hotels and Domestic Workers’ Union (CHODAWU)
· Tanzania Railways Workers’ Union (TRAWU)
· Tanzania Local Government Workers’ Union (TALGWU)

4.0 WEAKNESSES OF PREVIOUS LABOUR LAWS ON MATTERS RELATING

TO ASSOCIATIONS.
853
Section 69 ibid
854
Section 86ibid
855
section .22 (1)-24 of Trade Unions Act, 1998

398
Registration of Trade Unions

It is mandatory under the law for a trade union to be registered. Section 7(1) of the
Trade Unions Act, 1991 stipulates that:

"Every trade union registered or deemed to have been registered as trade

a union before the coming into operation of this Act, shall either apply to
be registered as a trade union or be dissolved, within a period of three
months from the Commencement of this Act, or the date of its formation
whichever is the later."

Every trade union registered as a trade union is required either to re apply to be

registered as a trade union or to be resolved within a period of 3 months from the
commencement of the Act.

The Act however did not give the effects of registration. It did not stipulate the
capacity of the registered trade union.

The private sector has been reluctant to form trade unions, which could be potential
members of the Federation because of the history of the trade union’s links with the
ruling party. Because of the history of the trade union’s links with the ruling party,
there is still higher level of distrust among workers.

There was also fear that the government might use the law to divide and rule by
having proliferation of weak federations.

On commencement of this legislation, the existing trade unions will had no legal
status, let alone the TFTU, whose existence was only de facto.

There was no automatic registration for existing trade unions as it was for the ruling
party when the Political Parties Act, 1992 came into effect. During the period when
the existing trade unions will be processing registration there might be an "operational
vacuum" with regard to the conduct of trade union functions in the country. The
unions had proposed "Every trade union registered or deemed to have been registered
as a trade union before coming into operation of this act shall be registered under this
Act". However, this proposal was rejected. Registration of trade unions will have to
be conducted in the manner prescribed in the Trade Unions Act, 1998 (Part III and
IV)

The law somewhat prohibits civil servants from forming trade unions. This is
indirectly or implicitly expressed in Section 2(2) of the Act. It reads:

"Any combination of employees employed by the government or by any

department or service of any international body or organization operating in
Tanzania of which Tanzania is a member, shall not be deemed to be a trade union
by virtue only of its being a combination of persons employed by or under the
government".
This is contrary to Article 2 of the ILO Convention, which clearly states that:

399
 "Public servants, like all other workers, without distinction whatsoever, have
the right to form and join organizations of their own choosing without
previous authorization, for the promotion and defence of their occupational
interests". (ILO 1996:47)

Employees in the government have the right to constitute and register trade unions.
Any legislation that prohibits government employees to form trade unions infringes
the employees' freedom of association in particular, and human rights in general. Only
members of the armed forces are internationally accepted to be excluded from the
right to constitute and register trade unions.

Section 15(2) of the legislation stipulates that:

"Where two or more trade unions exist in a particular establishment, trade,

occupation or industry, the Registrar may cancel the certificate of registration
of all of the trade union or trade unions except the one that has the largest
number of employees. However, provisions that require single unions for each
establishment, trade, occupation or industry are inconsistent with Article 2
and Article 11 of the ILO convention No.87" (ILO; 1996:60).

Workers have the right to establish organizations of their own choosing, which may
include choosing more than one per establishment. Thus "The existence of an
organization in a determined occupation should not constitute an obstacle to the
establishment of another organization, if the workers so wish". This may significantly
explain why the University of Dar es Salaam Academic Staff Assembly (UDASA)
was denied registration as a trade union by the government of Tanzania. It was
perhaps held that the interests of the academic staff are taken care of by the Research,
Academic and Allied Workers Union (RAAWU) branch at the University.

This was incompatible with the principles of freedom of association as per the ILO
Conventions that the United Republic of Tanzania ratified. Under Section 15(2) the
legislation mandates the existence of single unions in a particular trade, occupation,
establishment or industry.

Power Conferred on the Registrar of Trade Unions

The most striking feature of the Trade Unions Act, 1998 is the amount of power of
control over trade unions it grants to the Registrar of Trade Unions. The various
sections of the legislation bestow pervasive powers of control on the Registrar.

Cancellation of Registration

Section 15(1) b (iii) allows the Registrar to cancel or withdraw the registration of a
trade union where he is satisfied that "The union has been or is likely to be used for
any unlawful purpose". In so doing the provision confers on the Registrar a
discretionary power to cancel registration, which could give rise to abuse. This
undeniably constitutes an infringement of ILO Convention No.87 (IL0; 1996: 56).
Deregistration and withdrawal of the registration of a trade union should only take
place following the ruling or decision of the competent judicial authorities where
serious offences have been committed and have been duly proved.

400
Refusal of Registration and Suspension of Trade Union Activities

The law stipulates that the Registrar may refuse to register any trade union due to the
reasons specified in section 14 (la-h). Section 19(1) of the legislation enables the
Registrar to prohibit any trade union "from carrying out any activities for any period
which he may specify". Similarly Section 20 allows the Registrar to suspend a branch
of a trade union and prohibit its activities during the suspension period. Section 21(1)
provides that the Registrar, after consultation with a trade union or federation, may
suspend for a period of six months any trade union or any class or description of trade
union which in his opinion is, or is being, used for purposes prejudicial to or
incompatible with the interests of the security of the public order". These provisions,
by and large, constitute serious infringement of the principles of freedom of
association. The refusal to register a trade union and the suspension of trade union
activities should only take place under the supervision of competent judicial
authorities where serious acts have been committed and have been duly proven (ILO;
1996:56).

An administrative authority should not be allowed to exercise such discretionary

powers. Other powers of control conferred on the Registrar of Trade Unions by the
Trade Unions Act, No.10 of 1998 are summarized in the following table:

Control Provision Vested into the Registrar of Trade Unions under the Trade Union
Act, 1998

Section Enabling Control Ways in which control is or may be exercised

7 - (3) Grant an extension for the period specified
for registration of trade unions
29 Declare affiliation or membership to the
federation of trade unions to be invalid
30 - (2) Grant permission or prevent a person who
has been an executive member of a trade
union whose registration has been cancelled
under the Act from holding office or being
employed by a consultative or similar body
32 - (2) Permits the Secretary of one registered union
to hold the same position in another
registered trade union
33 - (7) Disqualify trade union officials from holding
office if in his opinion they have not attained
sufficient literacy standard
33 -(2) Call for information from the Executive
Committee or any officer of the trade union
37 - (2) Change or refuse to register the change of a
trade union name
4l -(2) Register or refuse to register trade union
rules. Revoke any rule or alteration of the
union rules
58 - (2) Make and issue an order authorizing the
collection of any trade union levy or
subscriptions to unions

401
64 - (1) Approve payment of dues to the Federation
by its affiliates
65 - (1) Order trade unions and Federation to submit
to his statement of income and expenditure.
Prohibit union or federation expenditure
65 - (2) Specify qualifications for a person to be
employed as an accountant to the union or
federation
67 - (3) Approve auditors of the trade union or
federation account
7l - (1) Call for detailed accounts and documents
from union or federation committee or
management
72 - (1) Order the suspension of trade union and
federation officers from office
73 - (16) Apply to the High Court for the appointment
of a receiver of the assets of a trade union or
federation

Subject only to appeals to the High Court, the Registrar has virtual statutory control
over trade unions and federations. These excessive powers may, depending on the
ideological inclination of the Registrar, be exercised to the detriment of the trade
union movement. Concentration of powers and control of trade unions in the hands of
the Registrar may inhibit the autonomy of the unions and federations. Furthermore the
situation provides room for undue government interference in the conduct of trade
unions' functions. Apart from the excessive powers vested in the Registrar of Trade
Unions, the Trade Unions Act, 1998 (Section 87 - 2 a-j) also gives the Minister
responsible for labour matters the powers to make regulations in respect of all or any
of the following matters:

 All matters stated in the Act which require prescriptions

 The books and registers as well as their forms
 The manner in which trade unions and federation as well as rules shall be
registered
 The name in which accounts of trade unions or federation shall be audited
 Conditions that would enable inspection of union documents
 Due disposal and safe custody of trade union or federation funds and moneys
 Protection and control of benevolent union funds
 Fees to be charged for registration and inspection of a trade union and federation
 Collection of members' subscriptions and unions' service charges

Generally the government, through the administrative powers conferred to the

Registrar of Trade Unions and the Minister responsible for labour matters, wielded
immense power in the internal administration of trade unions. The government has
left itself room to not only regulate but also intervene in the administration of trade
unions. In every democratic trade union movement, the congress of members is the
supreme trade union authority, which should determine the regulations governing the
administration and activities of trade unions. The powers vested in the Registrar and
the Minister erodes the powers of trade union authoritative organs. The former almost

402
hold the reigns of power in the trade unions. The right of workers' organizations to
organize their administration and activities without any interference from the public
authorities was grossly violated.

In the law, there are certain laws, which were restricted application under trade
unions, and registration of trade unions or federation was regarded as void.856
Only one trade union can exist in any establishment or trade or industry. Where there
is more than one union, the smaller one can be de-registered. International trade union
affiliation could be declared invalid if unions failed to follow certain internal
procedures, or if the Registrar decides that the union was working outside the remit of
employer-worker relations. The law is also silent about the right of trade unions to
federate and confederate.

4.0 POSITION IN THE NEW LABOUR STATUTES.

Employment and Labour Relations Act, Act No. 6 of 2004 stipulates for matters
relating to employers and employees association, and among its objects, is to give
effect to the provisions of the Constitution857 of The United Republic of Tanzania of
1997, in so far as they apply to employment and labour relations and conditions of
work. As explained above, the Constitution provides under article 20 for the right to
freedom of association.

The term Trade Union is defined under section 4 of the Act to mean any number of
employees together for the purpose, whether by itself, or with other purpose, of
regulating relatios between employees and their employers or the employer’s
associations to which the employees belong.

This definition changes the past position. From the definition, there is no limitation of
number of members of a trade union unlike the old law. The old law restricts some
category of employees to join in trade unions858, the mischief which is cured in this
new law. All employees and employers are allowed to join trade unions.

The new act, unlike the old one, provides for effects of registration of a trade union.
Upon registration, an organization or federation becomes body corporate with
perpetual succession and some capacities.859

The time limit for period of registration of trade union is wider now. The union will
have six months to establish the union before registration while three months set in
the old laws was not enough for the union to establish itself before registration thus
tempting dissolution.860

The new law empowers trade unions to hold, purchase or otherwise acquire or dispose
of movable or immovable property unlike the old law provides for all movable and

856
Section 79 Trade Unions Act, 1998.
857
Section 3(f) of the Act; sections 9 and 10 of the employment and labour relations act, 2004.
858
Section 2(2) of Trade Unions Act, 1998.
859
Section 49(1) of Employment and Labour relations Act.
860
Section 45 of Employment and Labour Relation Act, 2004 and section 7(1) of the Trade Unions
Act, 1998.

403
immovable properties belonging to any trade union to be vested in the trustees for the
time being of the trade union.861

Under the new law, powers of the registrar of trade unions have been reduced. Unlike
under the old law where the registrar had power to cancel registration himself862, in
the new law, the registrar have to apply to the labour court for an order to cancel the
registration of a registered organization or federation. 863This is the same on
dissolution of trade union.864

Under section 79 of the Trade Unions Act, there are some laws, which are restricted
to be applied by trade unions, an example being company law. In the new law, section
47(2) provides for the rules of organizations not to conflict with the Constitution,
provisions of the new law and any other written law. Moreover, becoming a body
corporate on its registration, application of companies Act is necessary.

In the new labour law, federation of trade unions is allowed under part IV of the Act.
The old law was silent on this feature. More over amalgamation of trade unions is
allowed, under section 54 of the Act in the new law, which is different from the past
laws.

Section 37(3) (iv), of Employment and Labour Relations Act, prohibit unfair
termination of employees for reason of them belonging to a trade union. The old law
was silent on the matter.

4.0 OPINION.
It is our opinion that the freedom of association in Trade Union in Tanzania is of
essence and should be provided in the laws concerned since it has been provided by
the Constitution.
The laws should consider equally both the employers and employees in providing
freedom of association in Trade Unions since these associations are there to solve
problems of both sides.
If the proposed laws come into force, to some extent will provide for freedom of
association as compared to the previous labour laws, and administrative powers of the
Registrar has been minimized with intervention of the Labour Court.

5.0 CONCLUSION.
We do agree that one of the object of the Employment and Labour Relations Act of
2004 is to guarantee freedom of association between the employees and employers as
stipulated in section 9 and 10 of the said Act, however from above discussion
previous labour laws relating to association have proved some weaknesses, whereby
the promising position given by the new statutes tends to cover the said weaknesses.
Further the Trade union leaders are urged to be proactive and innovative in handling
grievances and disputes with their employers so as to promote good industrial
relations at the workplace. And where the employers have not registered their unions

861
Sections 49(b) (iii) and 52(1) of Employment and Labour Relations Act, 2004 and Trade Unions
Act, 1998 respectively.r
862
Section 15(2) of the Trade Unions Act, 1998.
863
Section 55(1) of Employment and Labour Relations Act, 2004.
864
Section 56, ibid.

404
yet, they are urged to respect trade union rights like other basic human rights, taking
into account that the fundamental objective of trade unions is to ensure the
development of the social and economic wellbeing of both workers and employers.

Qn: Explain the law relating to the protection of the employees’ health at places
of employment as provided under the Occupational Health and Safety Act No 5
Of 2003 that has repealed the Factories Ordinance Cap. 297

1.0 INTRODUCTION
There is a broad all-embracing obligation on all employers to ensure the health, safety
and welfare of their employees and any other persons who might be affected at the
employer’s business.

In view of the above introduction, this paper is going to explain the law relating to
protection of employees’ health at places of work by examining the Occupational
Health and Safety Act, No. 5 of 2003. In so doing the paper will also examine the
repealed Ordinance, that is the Factory Ordinance in relation to the same area.

2.0 The Law Relating to Protection of Employees’ Health at Places of

Employment as provided under Act No. 5 of 2003

From the long title of Act No. 5 of 2003 (hereinafter referred to as the Act) it has been
observed that, its intention is wider than Factories Ordinance (hereinafter referred to
as the Ordinance). This is due to the fact that the former covers workers/employees
and persons other than employees against hazards to health and safety arising out of
or in connection with activities at work; while the latter provided for the protection of
health, safety and welfare for the persons only employed in factories and other work
places; thus, it did not cover persons other than employees. This means that the new
Act, by repealing the Ordinance, it has not only safeguarded the interests of the
employees but also the interest of the third party which lacked in the repealed
Ordinance.

Furthermore, the Act provide for mandatory requirement of washing facilities to be

provided by employer to employees at places of employment. The Act under section
56, unlike in the ordinance, has gone further into explaining categorically as to what
amounts to washing facilities. For instance, subsection three of the said section
provides that in any place of employment there shall be shower bath in the proportion
of 1 unit for every ten persons employed and the shower baths shall have individual
cubicles and be provide with suitable screens. From that section when compared to
section 47 of the Ordinance, it shows that the Act is strict in protection of employees’
health, in that, it has forced the employer to provide high quality washing facilities to
the employees so as to assure protection of their health. But in the Ordinance, it was
silent as to what amounted to washing facilities; hence the employer had discretionary
power on what kind and quality of washing facilities to provide.

It has been noted that, the Act, under section 54 (2) has specifically given mandatory
obligation to the employer to ensure that adequate supply of clean, safe and
wholesome drinking water is provided and maintained and readily accessible to all

405
persons employed on the premises. The same mandatory obligation was provided
under section 46 (1) of the Ordinance but the Ordinance was silent on the question of
who to provide such requirements. Therefore, that was a lacuna in the Ordinance as it
gave the employer opportunity of escaping the said mandatory obligation. In
protecting the employees’ health, the Act has further, under subsection four of the
same section, expressly prohibited the employer from reusing containers or vessels,
which had harmful liquids or were used to contain harmful liquids, in storing drinking
water at work place. This was not the case in the Ordinance; that is, there was no
such kind of prohibition, thus, any unreasonable employer could have reused the
containers in storing drinking water.

Moreover, the Act under section 57, unlike in the Ordinance, on the aspect of
accommodation for clothing, has strictly instructed the employer to provide and
properly maintain separate changing rooms for each sex equipped with individual
clogging clothes facilities. It has been noted therefore, that, the extra requirement
clearly indicates protection of employees’ health by avoiding employees from
communicable skin diseases which could have been brought through sharing or
storage of clothes. In addition to this, the same section has given cognizance to both
sexes, in that, it has ordered separate changing rooms for each sex to be available.

On top of that, there shall be provided and maintained a first aid box or cupboard in
every factory. This is a mandatory requirement provided under section 58 of the Act.
Unlike in the Ordinance, the Act under subsection 2 of the above section clearly
provides that each fast aid box or cupboard to be placed under the charge of a
responsible person who has received first aid training from a recognized institute and
who shall always be readily available during working hours. The section does stress
on the part of having a responsible person who has received first aid training from a
recognized institute, which was not the case in the Ordinance. It is convenient to have
a qualified and trained person so as the employees could acquire or achieve quality
first aid service.

Another point is that, the Act in protecting the healthy and safety of employees
provides for a mandatory requirement to the employers to provide and maintain for
the use of all workers whose work is carried, suitable seats to enable to take advantage
of any rest period which may occur in the course of employment. From the Ordinance
there is no provision for the employer to provide for such seats.

Further more, on sanitary convenience, the Act under section 55 has clearly stated as
to what amounts to sanitary convenience. For instance there shall be one toilet for
every 25 persons or part there off up to 100 one additional urinal for males to be
provided in excess of 40 persons. Also, the section has recognised disabled
employees, in that, under subsection four the employer has been instructed to put into
consideration sanitary conveniences which shall be separate for the disabled
employees, whereas there was no such provision in favour of disabled employees in
the Ordinance. This means that in the Ordinance, unlike in the Act, disabled
employees were discriminated at work place or it was as if during the enactment of
the Ordinance disabled people were exempted from employment.

Last but not least, the Act, after providing the above mandatory obligations has gone
further to provide a severe penalty for whoever contravenes those obligations. The

406
Act stipulates under section 79 that, any person who commits an offence for which
not express penalty is provided shall be liable to a penalty not less than five million
shillings or to imprisonment for a term not exceeding 6 months or to both such fine
and imprisonment. The penalty is severe in the sense that under the Ordinance those
who committed such an offence were fined a sum not exceeding twenty thousand
shillings or imprisonment for a period not exceeding six months or to both.

3.0 CONCLUSION
To sum up, we are of the view that, the Act has served its purpose for its enactment
and it has further filled the gaps or lacuna which were created by the Ordinance.
Furthermore, the Act has been enacted, not only to safeguard the interests of the
persons at work but also it carters the interests of those not employed but in one way
or another have connection with activities of persons at work. Moreover, the Act
went further in recognizing the health and safety of disabled employees.

Qn: Explain clearly the jurisdiction of subordinate courts on labour matters as

envisaged in recent proposed labour statutes.

OUTLINE
1.0 INTRODUCTION.

2.0 JURISDICTION OF SUBORDINATE COURT ON LABOUR MATTERS.

2.1 ON THE EXISTING LABOUR STATUTES

2.2 ON THE PROPOSED LABOUR STATUTES

3.0 CONLUSION.

4.0 BIBLIOGRAPHY.

1.0 INTRODUCTION
Jurisdiction of the court is one of the important matter to be considered by the
claimant or his advocate when deciding to institute any legal proceeding.
There is no statutory definition of the term jurisdiction. However, different authors
have defined the term. The term has been defined to mean, the power of the court or
judge to entertain an action, petition, or other proceeding. 865 Also it has been defined
as the power of the court to decide the matter in controversy and presupposes the
existence of a duly constituted court with the control over the subject matter and the
parties.866 Generally law governs jurisdiction of certain court or institutions.
Jurisdiction over labour matters is conferred upon courts and commission for
mediation and arbitration. In our question we are going to explain the jurisdiction of

865
Osborn’s Concise Law Dictionary, 8th Ed, p.189
866
Black’s Law Dictionary, 6th Ed p. 594

407
subordinate courts on labour matters as envisaged in the recent proposed labour
statutes.

1.0 JURISDICTION OF SUBORDINATE COURT ON LABOUR MATTERS

Subordinate courts are courts below the High court. These include District, Resident
and Primary courts. However, Primary court in labour matters is not considered as
part of subordinate courts. The jurisdiction of subordinate courts on labour matters as
envisaged in the recent proposed labour statutes will be explained by looking first on
existing laws.

2.1 ON THE EXISTING LABOUR STATUTES.

Labour disputes have been categorized into two categories. Those, which are
stipulated under the Security of Employment Act867 (hereinafter referred to as the Act)
and those, which stipulated under Employment Ordinance868(hereinafter referred to as
the Ordinance). The former deals with labour disputes relating to displinary code,
while the later deals with matters of civil or criminal nature.
The Act provides that:
“no suit or other civil proceeding (other than proceeding to enforce a
decision of the Minister or the Board on a reference under this part)
shall be entertained in any civil court with regard to the summary
dismissal or proposed summary dismissal, or a deduction by way of a
displinary penalty from the wages of an employee”869

In case of the Ordinance, jurisdiction of subordinate courts is shown in Part XI. In

particular the relevant sections are; section 130, 131 and 133(1), (2). These provisions
give the Jurisdiction of the subordinate courts to entertain matters relating to the
breach of contract of employment, or in any matters involving non-fulfillment of the
terms of contract of service, or wherever any difference arises in the interpretation of
those terms or touching on the conduct of employer or employee, may report the
matter to the labour officer. The labour officer has power to make a decision on
whether a matter is civil or criminal. In either case he will have recourse to the courts
of law if he cannot effect a settlement.870

The jurisdiction on the District Magistrates to deal with matters reported by labour
officer irrespective of whether he is civil magistrate or not. This is due to the fact that
ordinarily the District Magistrates have no civil jurisdiction unless the Chief Justice
expressly confers personal jurisdiction on the District Magistrate. Therefore, the
Ordinance disregarded the principle governing District Magistrate on civil matters.

867
Act no. 62 of 1964
868
Cap 366
869
Op cit Section 28(1)
870
Sikalumba A.J, Legal Aspects of Employment Contracts and Dispute Settlement Schemes in
Tanzania, p.53

408
Further, the jurisdiction of the subordinate courts under the existing labour laws is
shown under section 8 of the Ordinance871 whereby the labour commissioner or any
labour officer has the power to institute proceedings in respect of any contravention of
any of the provisions of this Ordinance or any regulations, made hereunder and may
prosecute and appear in his own name in respect of such proceedings.

According to the explanation herein above, it reveals that the jurisdiction of the
subordinate courts is envisaged under the Ordinance872 unlike the Security of
Employment Act873 and Industrial Court Act874 which provides nothing about the
jurisdiction of the subordinate courts over the labour disputes.

2.2 ON THE PROPOSED LABOUR STATUTES

Generally the jurisdiction under the new proposed labour laws that is Employment
and labour relation Act and labour institution Act concerning labour matters has been
vested to the labour court. The labour court has exclusive civil jurisdiction over the
matters pertaining labour laws as provided under section 51 of the labour Institution
Act. The labour court which has been referred on this section i.e.51 of the labour
institution has been define under the same Act section 2 to mean the labour Division
of the High Court established under section 50 of the same Act. Therefore, the High
Court under these proposed new labours Acts is only court that has exclusive civil
jurisdiction on the labour disputes. However this does not mean that other courts that
which is subordinate to the High Court has been ousted in entertaining matters that
originate from labour. Thus, on this particular part of the question we are going to
show how jurisdiction of subordinate courts on labour matters as envisaged in the
recent proposed statutes.

The jurisdiction of the subordinate court over the labour matters is provided under
section 45(1) (I) of the Labour Institution Act which provides for the labour officer to
institute a proceeding in the Resident or District court in respect of any contravention
of any labour law and may appear and prosecute in the name of the labour
commissioner. For example of the contravention of labour law is violation of sections
5, 6 and 7875 which prohibit child labour, forced labour and discrimination in the
working place respectively. The vested power of the labour officer to institute the
proceeding and prosecute in the name of labour commissioner this give the
impression that the Resident or the District court have jurisdiction over matters arose
from labour.

Further, under section 64(1) of the Labour Institutions Act confers jurisdiction to the
District and Resident Magistrate court to impose a penalty for an offence under the
Act. The offences in respect have been provided under section 63 of the same Act876,
for instance section 59(1) of the that Labour Institutions Act provides that it shall be
an offence for any person to disclose any information relating to the financial or

871
Cap366
872
Ibid
873
Act no. 62 of 1964.
874
Act no.41 of 1967.
875
Employment and Labour relation Act of 2004.
876
It shall be an offence to contravene sections 36,49 and 59of the labour Institution Act, 2004.

409
business affairs of the another person if that information was acquired in the
performance of any function or exercise of any power under the that Act. Hence
incase of such breach duty of confidentiality subordinate courts has jurisdiction of
imposing penalty to such offence,

The jurisdiction of the subordinate court not only confers in the Labour institution Act
but also in the Employment and labour Relations Act. Section 102 (1) of that Act the
same vested the power to District and Resident Magistrate court in imposing the
penalty for an offences under the Act877.

It seems that the jurisdiction of the subordinate court over labour matters as we have
indicated above mostly relate with matters of criminal nature rather than civil nature.
This is because the provisions that are cited above are mostly imposing the
punishment to the person who commits offences that are punishable under these new
labour statutes.

3.0 CONCLUSION.
Therefore from the explanation above we can say that the jurisdiction of subordinate
courts on labour matters as envisaged in recent proposed labour statutes is mainly
conferred on matters of criminal nature rather than of civil nature. This is because
most of the provisions indicated above deal with the offences that can be punishable
by subordinate courts. Also the fact that Labour Court have exclusive civil
jurisdiction implies that no other court to entertain labour matters of civil nature.

Qn: Give the detailed discussion on the workmans compensation.

OUTLINE

1.0 Introduction

Meaning of Workman

2.0 Main body

2.1 -Circumstance under which compensation is payable

2.2 -circumstances under which compensation is not payable

2.3 -Types of Incapacities

2.4 -How calculation is made for compensation

3.0 -The rationale of having workman’s compensation

4.0 CRITICISM

877
The offences provides under sections 5,6,7,8,27 e.t.c. of Employment and Labour relations
Act,2004.

410
 5.0 OPINION

1.0 INTRODUCTION
The relationship between employer and employee extend further even where the
worker has been injured in the course of his employment. The workman’s
compensation is an employer’s liability to pay damages to his injured workman and
one of the objectives of labour laws878 is to redress injury suffered by way of
compensation

Workman879 is defined to mean any person employed by way of manual labour

irrespective of amount of his monthly earnings, however, the existence of a contract
of service between the employer and employee is necessary, under the same
provision, the Workers’ Compensation Act880 (hereinafter is referred to as the WCA)
that is s.2 (1) proviso, provides for the persons who have been excluded from the
meaning of workers under the WCA these are, any person whose employment is of
casual in nature, a member of the employer’s family dwelling in the employer’s
house, an outworker, a tribute, any class of person who the minister may by order
declare not to be a worker for the purpose of WCA.

Furthermore, WCA applies to the workers employed by or under the government in

the same way and to the same extent as if the employer were private person except in
the case of members of the Defence Forces in their employment and also persons in
civil employment other than in the Government of Tanzania or who have been
engaged in place outside the Country as provided under s.4 of WCA.

The relevant legislation for compensation of injuries sustained at the place of work is
the WCA. Therefore the basis of our discussion will be drawn from the WCA simply
because it is the Act which is responsible in matters pertaining to the workmen’s
compensation.

2.0 MAIN BODY:

The law imposes liability on employers to compensate workmen who have suffered
personal injury by accident or other disability arising out of and in the course of
employment. The phrase ‘arising out of and in the course of employment881 is not
defined any where in the WCA. To determine whether an accident ‘arose out of and
in the course of employment’ one has to consider each case on its own facts and
merits, therefore it is important to remember that in all cases the test is whether the
activities of an employee at the time of the accident are connected with or incidental
to the employment in which he is engaged. An important ride to the test is that each
case must be considered on its own facts and merits.

878
Workers’ compensation Act.
879
It is provided under section 2 (1) of the Workers’ compensation Act, Cap 263.R.E 2002.and it
provides for the word worker which is similar to workman as provided under the Workmen’s
compensation Ordinance.
880
CAP 203 R.E.2002,SEE G.N No 124,and the case of Legal and Human Right Center and others V
The Attorney General.
881
Sect.5 (1) of WCA

411
2.1 Circumstances under which compensation is payable;
Generally as provided under section 5 (1) of WCA, that if in any employment
personal injury by accident arising out of and in the course of the employment is
caused to a worker, his employer shall be liable to pay compensation in accordance to
the provisions of WCA.

Therefore it can be provided that workman accident to arise out of and in the course
of employment, where it occurs during the working hours of the workman for that
particular day and also it must be connected with or incidental to the specific job the
workman was employed to do.
In addition, however, compensation may be paid under if the workman who is
working in the employer’s premises is injured when he tries to save life or prevent
damage or loss to property during a supposed or actual emergency, and also if the
workman who disregards statutory regulations or acts without the employer’s
instructions meet with an accident, but he does this for the purposes of and in
connection with the employer’s trade or business and the accident results in death or
serious and permanent incapacity. This is provided under section 5 (2) of WCA.

2.2 Circumstances under which compensation is not payable;

It is better to note that not in all circumstances under which workman is entitled for
the compensation, therefore, the following are circumstances under which
compensation may not be payable:
Where injury does not incapacitate the workman, the employer shall not be liable to
pay a workman in respect of any injury, other than an injury resulting in permanent
partial incapacity, which does not incapacitate the worker for a period of at least three
consecutive days from earning full wages at the work at which he was employed, this
is provided under section 5 (1) (a) of WCA;

Where it is proved that the injury is attributed to the serious

and willful misconduct of the injured workman himself as per
S.5 (1) (b) of WCA.

Where the injured workman has knowingly made false representation in writing to the
employer that he was not suffering from that or similarly injury as per S.5 (4) of
WCA.

If the death of an injured workman is caused by his deliberate failure to present

himself for treatment in respect of that injury or by his unreasonable disregard of
medical instructions, no compensation shall be payable in respect of death as per
section 14 (9) of WCA.

However, proceedings for the recovery under WCA, of compensation for injury shall
be maintained only if there is notice of accident in the prescribed form which have
been given by or on behalf of the worker as soon as practicable after happening
thereof and before the worker has voluntarily left the employment in which he was
injured and the proceeding will not be maintained unless claim for compensation is
made within a period of three years from the date of accident as provided under
section 13 (b) (ii) proviso of WCA. The object of giving notice intended to enable the
employer to arrange to have medical examination as per s.14 (1) of WCA.

412
2.3 TYPES OF INCAPACITIES.
The WCA provides the following incapacities;
Partial incapacities which mean where the incapacity is of a temporary nature such
incapacity as reduces the earning capacity of worker in any employment in which he
was engaged at the time of accident resulting in the incapacity, this is per s.3 of WCA.

Total Incapacity, this can either be temporal or permanent incapacity. Permanent

incapacity is that incapacity which incapacitates the workman from doing all work
which he was capable of doing at the time of accident and thereby reduces
permanently the earning capacity of the workman in every employment, example loss
of both arms, both eyes or total paralysis as per s.3 of WCA and this shall be deemed
to result from an injury or from any combination of injuries specified in the Second
Schedule.

Fatal injury, which is an injury which results into the death of the workman, and the
law provides that, the compensation shall be payable to or for the benefit of the
worker, or, where the death results from injury to the benefit of his dependants as per
s.11 of the WCA, and where the dependant dies before the claim in respect of death
is made under WCA, the legal personal representative of the dependants shall have no
right to payment of compensation as per s.11 (3) of WCA, and if the worker leaves no
dependants the expenses of the burial of the deceased worker shall be paid by the
employer.

2.4 HOW CALCULATION IS MADE FOR COMPENSATION

In permanent partial incapacity, such incapacity has reduces the earning of a workman
in any employment in which he was engaged at the time of accident. As per s.8 of
WCA, in case of injury not specified in Second schedule to WCA, such percentage of
fifty-four months’ earnings as is proportionate to the loss of earning capacity caused
by injury.

Compensation in case of permanent total incapacity where permanent total incapacity

result from the injury the amount of compensation shall be a sum equal to fifty-four
month’s earnings. This is provided under section 7(1) of the WCA.

But it is provided that in no case the amount of compensation be greater than one
hundred and eight thousands shillings but not les than two thousands shillings. That
is to say the maximum compensation is 108,000. For instance if a workman’s monthly
earnings are 3000 then his compensation will be 3000 x 54 = 162,000/= but the
employee will be only entitled to 108,000/=.

However, in case of compensation in temporary incapacity results from total or partial

injury the compensation shall be the periodical payments mentioned under WCA,
payable at such intervals as may be agreed upon or as the court may order, or a lump
sum calculated accordingly having regarding to the probable duration, and probable
changes in the degree, this is as per section 9(1) of WCA.
Compensation in Fatal cases:

413
This is an injury, which results into the death of he workman. If the workman leaves
any dependants wholly dependendants on his earnings, the amount of compensation
shall be a sum equal to 41 month’s earnings or 83,000/=Shs which ever is less but
when in respect of the same accident compensation has been paid under the
provisions of section 7 or 8 there shall be deducted from the sum payable under this
paragraph any sums so paid as compensation882.

Occupational Diseases:
These are the diseases to which workmen may be exposed by the nature of their
employment and the manner described in the Third Schedule. A workman can claim
compensation if he contracts any of the diseases that is related to his occupation. He
can claim compensation only if he contracts the disease within twenty-four months
prior to the date of such disablement or death.

Furthermore the WCA provides for the Medical Examination

Medical examination, when informed of an accident by his workman, and the injured
employee examined by a doctor, the employer shall pay the cost of any medical
treatment, medicines, artificial limbs and surgical appliances for the workman.

Compulsory Insurance
Compulsory insurance, every employer is required to insure against his liability for
workmen’s compensation, however, the labour commissioner may exempt an
employer or class of employers from compulsory insurance. It is an offence if an
employer fails to insure against his liability as per s.25 (2) of WCA. However the
same provision under sub sect (3) provides for limitation of the section.

3.0 THE RATIONALE OF HAVING WORKMAN’S COMPENSATION.

This aimed at providing for payment of compensation to injuries suffered by the
workman in his course of employment, furthermore, it is the goal of worker’s
compensation to return the injured employee quickly and economically to the status of
productive worker without unduly harming the employers business.
Also it is effective in keeping injured employee employed and promoting the
importance of a safe work.
Lastly, to make sure that employee who is injured at work receives appropriate
medical care, lost wages relating to on the job injury.

4.0 CRITICISM
As far as occupational disease is concerned, it tends to be understated in the statistics
of individual organizations because very often the diseases manifest themselves many
months, or even years after worker exposure to the causative agents, by then the
employee may be working for different organization, may have retired, or, if still in
the same organization, the cause effect relationship may go unrecognized. For
instance was working in mining for a period of 12 years and then he left the job and
engaged in another employment and the disease start to manifest in that new
engagement while the causation was due to the previous employment, the

882
. Section 6 of WCA.

414
compensation shall be payable by the employer who last employed the worker during
the period of 24 moths. This is not fair to the new employer.

The compensation formulae provided under the WCA does not is outdated as it does
not current economic situation as the amount is low. Such as calculation in partial,
total and permanent incapacity is not fair as is against the real amount calculated.

Again the WCA does not apply to all kind of employees because the members of the
Military are exempted.
Furthermore the WCA give the impression that what is being compensated is the
injury caused to the workman, but in practice the amount of compensation payable is
determined by reference to the type of injury and the amount of the amount of the
earnings of the employee. The earnings criterion creates a variation of the amounts
payable to injured workmen whose earnings are different, even though the extent of
injury may be the same.

5.0 OPINION

The law should be amended so as to include some of the employees who are
exempted from being compensated by the WCA. For instance the casual worker,
tirbuters outer workers to mention but a few. These people may suffer injuries while
they are under the course of employment. Also the compensation formulae should be
amended so as to be consistence with the real amount calculated and also should
correspond with the current economic situation.

Therefore, having seen the provisions of WCA in relation to workman’s

compensation, we are of the view that, to some extent has covered relevant issues in
which a workman injured while he is in the course of employment can be
compensated, but there is a need for the WCA to be amended so that it can match with
the outstanding social- economic changes which are obvious today in our society.

Qn: What are collective agreements? Discuss their significance and effects as far
as current labour laws and the recent proposed laws in Tanzania are
concerned.
TABLE OF CONTENTS

1.0: INTRODUCTION

2.0: MAIN BODY.

2.1: Understanding of the concept of collective agreement.
2.2: How collective agreement is concluded
2.3: The concept of collective agreement and the concept of voluntary and
negotiated agreement.
2.4: The significance of collective agreement
2.5: The consequences of collective agreement

3.0: CONCLUSION.

415
 REFERENCE:

1.0: INTRODUCTION.
It is important for any kind of relationship existing in a society to have some rules
which are there to regulate such existing relationship. The law in labour matters also
is tailored in such a way that it harmonizes the relationship between the employer and
employee by trying to balance their antagonistic interests883.

However such relationship of the employee and employer can not simply be
harmonized without some adequate procedures of ensuring that whatever interests
between these parties arise then there are some ways to follow. Where there is
dispute, parties are encouraged to negotiate so as to reach into mutual agreement
through their associations or trade unions. One of such ways of reaching into mutual
consensus is what is termed as collective agreement. In this paper the term new
proposed laws (labour laws) shall mean Act No.6 and 7 of 2004, while the term
current laws shall mean such labour laws which for this moment are in force.

2.0: MAIN BODY

2.1: Understanding of the concept of collective agreement.
Collective agreement is not defined in the current labour laws neither does it been
found expressly in the current laws884. It is however defined in the new proposed laws
under section 4 of the Employment and Labour Relations Act, 2004885 as to mean;
“A written agreement concluded by a registered trade union and an employer
or registered employers’ association on any labour matter”

This term ‘collective agreement’ is nowhere referred in the current laws 886. It is better
however one to take note that when this paper is making reference to current laws it
means the laws which are now in force in Tanzania in as far as labour matters are
concerned. When the reference is made to the proposed laws then that means the
Employment and Labour Relations Act, 2004 and the Labour Institutions Act,
2004887.

The proposed labour laws empower any recognized trade union and an employer or
an employers’ association to conclude a collective agreement establishing a forum for
workers participation in a workplace. All collective agreements shall be in writing and
signed by the parties888. Generally, collective agreement includes the following;

883
For instance the enactment of the Security of Employment Act, 1964 was a response towards the
need to balance the interests between workers and employers particularly soon after independence, to
create better working conditions to employees at a place of work, and to curb the increasing misuse of
power of hiring and firing among the employers. See the paper published by Institute of Development
Management(IDM) ‘Titled Security of Employment Act 1964’
884
Except that it is mentioned under the functions of workers committee as provided under Section
6(1)(e) of the Security of Employment Act, Cap 387 of the R.E of 2002.
885
Act No.6 of 2004
886
The current laws have the concepts of voluntary and negotiated agreements which are also found
under the Third Schedule to the Employment and Labour Relations Act, 2004 which provide for the
consequences of such agreements when the proposed labour laws come into operation.
887
Act No.7 of 2004
888
Section 71 of Act No.6 of 2004

416
details of parties; the categories of employees to be covered by the agreement; the
duration of the agreement; procedures for the mediation and arbitration of the dispute
arising from the application, interpretation and implementation of the agreement; a
peace clause; and the basis and procedure for termination of the agreement889.

2.2: How collective agreement is concluded

Collective agreement as defined earlier in this work is concluded between a registered
trade union and an employer or registered employers’ association on any labour
matter. It is therefore important here to note that the term registered trade union has to
be understood in the light of the provisions of section 66(c) of the Employment and
Labour Relations Act, 2004. In short it includes two or more trade unions acting
jointly. In that sense, a registered trade union is not a single trade union in the
meaning of the new proposed law rather two or more trade unions acting jointly.

The process of concluding a collective agreement is initiated by the process of

bargaining unit890 where construed in the light of the provisions of Section 67 of Act
No. 6 of 2004. It follows therefore that collective agreement has a close link with the
so called collective bargaining as provided in the new proposed labour laws.

Collective agreements must be in writing and signed by the parties and it shall be
binding on the parties to the agreement; any members of the parties to the agreement;
and any employees who are not members of a trade union party to the agreement if
the trade union is recognized as the exclusive bargaining agent of those employees891.

2.3: The concept of collective agreement and the concept of voluntary and
negotiated agreement.
It has to be noted that the concept of collective agreement is only found in the new
proposed laws and it is nowhere expressly found in the current laws instead there is
concept of voluntary and negotiated agreement. Again there is a removal of the
concepts of voluntary and negotiated agreements in the new proposed labour laws892
and it is impliedly seen as they have been substituted by the new term, that is,
collective agreements. The difference is basically that that the latter term now covers
any labour matter893 different from the former concepts of voluntary and negotiated
agreements.

Voluntary agreement is an agreement reached between any trade union and any
employer respecting the wages or terms of service of the employees or any group of
employees employed by the employer894 while negotiated agreement is any settlement
of the dispute which may exist in the trade or industry or branch thereof in which the
dispute has arisen895.

889
See the Report of the Task Force on labour law reform submitted to the Ministry of Labour Youth
Development&Sports
890
This is defined under Section 66(a)(i) of the Employment and Labour Relations Act, 2004 to mean
“any unit of employees in respect of which a registered trade union is recognized, or is entitled
to be recognized, as the exclusive bargaining agent …”
891
Section 71(3) of the Employment and Labour Relations Act, 2004
892
These can only be found in the Third Schedule to the Employment and Labour Relations Act, 2004
893
See its definition given under Section 4 of the Employment and Labour Relations Act, 2004
894
Section 39(as amended) of the Industrial Court of Tanzania Act, Cap 60 of R.E of 2002
895
Section 4(4)&(5) of the Industrial Court of Tanzania Act, Cap 60 of R.E of 2002

417
It follows therefore that collective agreement is wider than voluntary and negotiated
agreement since the former covers any labour matter while the latter cover such
matters as specified within their scope of their meanings.

The procedures of concluding a voluntary agreement is provided under Section 39 of

the Industrial Court Act896, where it involves an agreement between a trade union and
employer, the agreement which has to be recorded in writing and submitted to the
zonal labour officer, then to the labour commissioner who shall submit the same to
the treasury registrar who is empowered to approve the voluntary agreement and
submit the same to the Minister for registration to the Industrial Court. The treasury
registrar is also empowered to disapprove the said agreement

On the other hand, negotiated agreement is initiated by the existence of a dispute

which has to be reported to the District labour officer, union branch or to the District
Secretary of a trade union, then to the Labour commissioner for endorsement and
then to the Industrial Court for registration897.

From the above analysis, let us turn our discussion on the significance of the
collective agreement which is a centre of our discussion. In fact the basis of this
significance is drawn from the proposed labour laws and in as far as the current laws,
the significance is going to be discussed in the light of the concepts of voluntary and
negotiated agreements which as we have expressed our views above are substituted by
the term collective agreement in the new proposed labour laws.

2.4: The significance of collective agreement

The agreement facilitates the determination of matters which otherwise would give
rise into labour disputes, for instance determination of wages and increase in labour
productivity.

Since this agreement is reached by both parties then it is easy to enforce this
agreement on the reason that the parties to it are already expressed their mutual
consent to its effect. The agreement balances the interests of both parties to it and
therefore results into mutual satisfaction of its terms.

It also maintains the public policy that litigation must come to a speedy end by
encouraging negotiation and agreement of the parties outside the court and therefore
preventing such technicalities and other unnecessary expenses in reaching to a
harmonious agreement. It is expected that a collective agreement will take shorter
time compared to court litigation on the same matter. Hence this will help to save time
of production in a particular sector.

Since the agreement by itself is binding, therefore it is also easy for it to be enforced
in court of law in case any of the party defaults. This is significant in as far as
assurance of effective implementation of the terms of agreement is concerned. All the

896
The same procedures were reiterated in the case of MICHAEL KATEPA(On behalf of 684
others) V TANZANIA SHOE COMPANY LIMITED&ANOTHER, Civil Case No.48 of 1994,
High Court of Tanzania At Dar es Salaam(Unreported) Kyando, J
897
See the procedures of its registration as provided under Section 23 of the Industrial Court of
Tanzania Act, Cap 60 of R.E of 2002

418
parties are expected to respect their terms of agreement to avoid legal measures to be
taken against them.

Collective agreement also is significant in as far as the maintenance of the status of

the parties is concerned. Court litigations sometimes may lower personal reputation as
compared to collective agreement. Negotiation generally leaves parties to it with self
satisfaction and makes the parties to it regard themselves in a peaceful way compared
to disputes which are referred to a court of law.

Collective agreement is also important in as far as the procedures of engaging in a

lawful strike or lockout is concerned. Parties may agree on which procedures should
be undertaken in the circumstances of strike or lockout and the nature of protection of
such strikes or lockouts898.

It is from the basis of this significance that the new proposed laws have gone to the
extent of forming a special machinery for promoting collective agreement which in
fact is the wage board appointed by the Minister with respect to Section 35 of the
Labour Institutions Act, 2004. This board among other things is formed to promote
collective bargaining between registered trade unions, employers and registered
employers associations899. As we pointed out earlier, collective bargaining links to
collective agreement, therefore promoting the former will mean in our opinion,
promoting the latter also.

2.5: The consequences of collective agreement

One of the effects of a collective agreement as provided by the law is that the
agreement once concluded as between the parties it becomes binding. And the
agreement is said to be binding even to such employees who are not members of a
trade union party to the agreement if the trade union is recognized as the exclusive
bargaining agent of those employees900.

The binding nature of a collective agreement continue to be binding on employers or

employees who were party to the agreement at the time of its commencement and
includes resigned members from that trade union or employer association901.

The collective agreement may contain an agreement as to the procedures which may
be used in secondary strike902 which is defined under Section 81(1) of the
Employment and Labour Relations Act, 2004 to mean a strike in support of a lawful
strike by other employees against their employer, or a strike in opposition to a lockout
imposed by another employer against its employees. The consequence here is that,
where the same is agreed in the terms of a collective agreement, it creates binding
obligations to adhere to such terms.

898
See Sections 81, 82 and 83 of the Employment and Labour Relations Act, 2004
899
Section 36(1)(b) of the Labour Institutions Act, 2004
900
See Section 71(3) of the Employment and Labour Relations Act, 2004
901
Subsection(4) Ibid
902
This is as per Section 81(4) of the Employment and Labour Relations Act, 2004. The very same
agreement may be reached also with respect to the procedures in engaging in a lawful lockout and with
respect of the nature of protection of a lawful strike or lockout as per Section 82(2) of the same Act.

419
Further a trade union and an employers association may agree in their collective
agreement for the resolution of disputes which are not within Part VIII of the
Employment and Labour Relations Act, 2004. That is as per Section 95(1) of the Act.
However it is further stated that a collective agreement may depart from the
provisions of the said Part provided that the disputes are mediated or arbitrated in an
independent, neutral, expedited and professional manner903. Where a collective
agreement goes contrary to the said proviso, then, on application, the Labour Court
may set aside a provision of a collective agreement that does not comply with the
above requirements.

Again another consequence of a collective agreement is that it may confer

organizational rights on a trade union the rights which include the right to trade union
representation in the workplace including the right to a committee or a field branch;
the right to facilities for trade union representatives in the workplace; the right to
disclosure of information; the right to deduction of trade union dues and levies; and
the right of access to the employer premises for the purposes of recruitment of
members, meeting with members and representing members904.

The terms agreed by parties in a collective agreement may have effects even to some
boards established under the new proposed labour laws. For instance, the Wage
Board905 which is empowered, inter alia, to conduct an investigation on a minimum
remuneration and other conditions of employment, when so doing has to take into
account any collective agreements providing for remuneration and terms and
conditions of employment in the sector. It follows that the consequences of the
collective agreement can be felt even to such boards.

It has to be taken into consideration that the mere fact that collective agreement is
intended to replace the position of negotiated and voluntary agreements does not
however do so very automatic as soon as the new proposed labour laws come into
force. The effect of the concluded voluntary and negotiated agreements will continue
to bind the parties even after the commencement of the new proposed laws subject to
the provisions under Section 5(1) of the Third schedule to the Employment and
Labour Relations Act, 2004.

Unless the parties to a collective agreement have agreed otherwise on their terms of
agreement, a dispute concerning the application, interpretation or implementation of a
collective agreement shall be referred to the Commission906 for mediation and where
such mediation fails, any party may refer the dispute to the Labour Court for
decision907.

The current position as provided under the Industrial Court of Tanzania Act where a
concluded voluntary or negotiated agreement once registered by the court becomes
binding and where there is any question arises as to the interpretation of any award of

903
See Subsection (2) of the said section.
904
As provided under Section 4(1)(a) of the Third Schedule to the Employment and Labour Relations
Act, 2004
905
Appointed in accordance to Section 35 of the Labour Institutions Act, 2004
906
This is an independent department of the Government established in accordance with Section 12 of
the Labour Institutions Act, 2004. Its functions are stipulated under Section 14 of the said Act.
907
Section 74 of the Employment and Labour Relations Act, 2004

420
the court, the Minister or the Labour Commissioner or any party to the award may
apply to the court for decision on such question908.

3.0: CONCLUSION
To conclude this work, it is our considered opinion that, the new concept of collective
agreement is intended to encompass the two term of voluntary and negotiated
agreements which are in the current labour laws for the purpose of effectively
encounter interests of both employers and employees through their recognized trade
unions or association and harmonize such interests through mutual bargaining and
agreement. However the new proposed laws have taken into consideration the effects
that might arise immediately after the new proposed laws comes into operation by
allowed the current existing agreements to operate in accordance to the provisions of
the new proposed laws till the time of their expiration.

908
Section 26 of the Industrial Court of Tanzania Act

421
REFERENCE

CONSTITUTION
The constitution of the united republic united of Tanzania, 1997, as amended from
time to time.

PRINCIPAL LEGISLATION

Tanzania Government of,The Employment and Labour Relations Act, 2004(Act

No.6 of 2004), The Government Printers, Dar es Salaam

Tanzania Government of, the Labour Institutions Act, 2004(Act No.7 of 2004), the
Government Printers, Dar es Salaam.

Tanzania Government of, the Industrial Court of Tanzania Act, [Cap 60 R.E of
2002], the Government Printers, Dar es Salaam.

Tanzania Government of, the Security of Employment Act, [Cap R.E. 2002], the
Government Printers, Dar es Salaam.

Tanzania Government of, Trade Unions Act, Act No 10 of 1998. the Government
Printers, Dar es Salaam.

Tanzania Government of, Employment Ordinance, Cap 366, the Government

Printers, Dar es Salaam.

BOOKS

Sikalumba A.J: Legal Aspects of Employment Contracts and Dispute Settlement

Schemes in Tanzania, Mzumbe University, mzumbe 2003.

Reddy, G.R: The Labour and Industrial Law, Sujatha Law Books, P.V.T. Limited,
2005.

422
MIMEO.
Legal and Human Right Centre: Human Rights Repression Report; Labour and
Employment Issues.
International Confederation of Free Trade Unions (ICFTU), Boulevard du Roi Albert
II 5, B - 1210 Brussels, Belgium, Online 042/000301/DD, 1 March 2000.

Rwekaza S. Mukandala: Civil Society and Governance Programme: Trade Unionism

in Tanzania: The Case Of The Tanzania Federation Of Trade Union's (TFTU)
and Government (D R A F T), Department of Political Science and Public
Administration University of Dar es Salaam E-mail: rwekaza@ids,.ac.tz,
November, 1999.

Uiso, D. M: TRADE UNIONS ACT OF 1998, Office of the Registrar of Trade

Unions.

Kajege: C. M. M: Tanzania’s Ratification of Core ILO Labour

Standards, Kivukoni Academy of Social Sciences.

Daily News of Tuesday 2nd of May 2006

The Minister for labor and Youth Development, Paul Kimiti announcement in
Dodoma Region followed the appointment of the registrar of trade unions,
formulation of rules and regulations of trade unions and establishment of an
independent office of the registrar and his deputy. TOMRIC Agency, Dar Es
Salaam, 5 July 2000. -

REPORT
The Report of the Task Force on labour law reform submitted to the Ministry of
Labour Youth Development&Sports

PAPER
The paper published by Institute of Development Management (IDM) ‘Titled
Security of Employment Act 1964’

423
PRIVATE INTERNATIONAL LAW QUESTIONS AND ANSWERS.

Qn: Discuss the fact that before the court of forum decides a correct choice of
law to guide a case at hand it first has to classify the problem.

1.0 INTRODUCTION

1.1The Scope and Concept of Private International Law

The term private international law has undergone numerous definitions by various
scholars of which are synonymous and has been most useful for a study of legal
system. This is not law which is enforced by international tribunal, rather it is the law
which is a concern of municipal courts because courts may be required to make a
choice of law where it is required to decide or make a legal decision.

Private international law then, is that part of law which comes into play when the
issue on the before the court affects some facts, events or transaction that is so closely
connected with a foreign system of law as to necessitate recourse to that system. It
has, accordingly, being described as meaning ”…the rules voluntarily chosen by a
given states for the decision of cases which have a foreign complexion909”.

The reason behind private international law is the existence in the world of a number
of a separate municipal systems of law – a number of separate legal units that differ
greatly from each other in the rules by which they regulate the various legal relations
arising in daily life. Courts in one country must frequently take account of some rule
of law that exists in another.

Private international law has three main objectives: first to prescribe the condition
under which the court is competent to entertain such a claim. Secondly, to determine
for each class of case the particular municipal system of law by reference to each the
rights of the parties must be ascertained. Thirdly, to specify the circumstances in
which (a) a foreign judgement can be recognized as decisive of the question in
disputes: and (b) the right vested in the judgement creditor by a foreign judgement can
be enforced by action in England.

Therefore under the objects we surmised that private international law it is always
concerned with one or more of the following three questions, namely: (a) jurisdiction,
(b) recognition and enforcement of foreign judgements, and (c) the choice of law.

Jurisdiction.
Jurisdiction is a word susceptible of several different meaning but in our present case
it is used in widest sense to refer to the question of whether an English court will hear
and determine an issue upon which its decision is sought.

The position is complicated by the fact that there are now four separate sets of rules
determining the jurisdiction of English courts. First, there are the rules under the
European Community Convention on Jurisdiction and Enforcement of Judgements in

909
North P.M and Faweet Cheshire, (2004), Cheshire and North’s Private International Law, 13 th Ed,
P5

424
Civil and Commercial Matters 9THE Brussels Convention). Second, there are the
rules contained in a modified version of the Brussels Convention (the Modified
Convention). Third, there are the rules under the EC/EFTA Convention (the Lugano
Convention). Fourth, there are the Traditional rules910.

The basic rule at common law is that, the English court has no jurisdiction to entertain
an action in personam unless the defendant has been personally saved with claim form
in England or Wales. There are reasons for ascertaining jurisdiction, namely, first,
there circumstances in which the court may be empowered to assume jurisdiction in
the absence of the defendant, secondly, there certain types of cases in which the mere
presence of the defendant does not given jurisdiction to the court, and third there is
separate regime of jurisdictional rules in the case of defendant domiciled in a member
state of the European Union911.

Recognition And Enforcement Of Foreign Judgements

Unsatisfied foreign judgements usually give rise to complicated questions of private

international law. If a claimant fails to obtain satisfaction of a judgement in the
country where it has been granted, the question arises whether it is enforceable in
another country where the defendant is found. It is clear at the outset that owing to the
principle of territorial sovereignty a judgement delivered in one country cannot, in the
absence of international agreement, have a direct operation of its own force in
another912.

Thus, with private international law, there is a great need for a court of forum to
recognize/permit a foreign judgement before it can be able to put it into
application/enforcement. Recognition for a foreign judgement depends on whether the
foreign court has jurisdiction to adjudicate the case. If a foreign court has jurisdiction
to adjudicate on the case, according to English private international law, the English
court will generally recognize the foreign judgement as if one of its own and can be
enforced accordingly913.

The European Community has led to the introduction of important specific rules for
the recognition of judgements from courts of the member states. For instance, the
preamble of the convention on Jurisdiction and Enforcement of Judgements in Civil
and Commercial Matters, is concerned to facilitate recognition, and to introduce an
expeditious procedure for securing the enforcement of judgements obtained in one
European Community State throughout the rest of the community914.

Choice of law.
Upon the court satisfied to posses a jurisdiction, then a further question is what law
should be applicable. Which system of law should govern the case, English or foreign.
Example on the party of English law which consists of private international law
directs what legal system shall apply to the case, that is to use a convenient
expression, what system of internal law shall constitute the applicable law. The choice

910
Ibid p.179
911
Ibid p 7-8.
912
Ibid p 405
913
Ibid p 8
914
Ibid p 481

425
of law indicates the particular legal system to which a solution of the dispute must be
reached. The function of private international law is complete when it has chosen the
appropriate system of law.

Whether before the court of forum decides a correct choice of law to guide a case
at hand it first has to classify the problem.

It is an undisputed fact that, in any case containing a foreign element, the court of
forum will have to examine matters in sequence. First and foremost the court will
have to determine whether it has jurisdiction both over the parties and cause of action.
Then having satisfied itself that it possesses jurisdiction the court must next determine
the juridical nature of the question that requires decision. In other words, before a
decision upon a case that contains a foreign element can be given, there is always a
preliminary question of classification to be settled, the correct and scientific
determination of which is a matter of prime important. For instance is it a question of
breach of contractor the commission of a tort?

The appropriate rule for the choice of law will be impossible to apply unless the
classification for the cause of action is determined. The impossibility of the
application for the appropriate rule of the choice of law will also lead to the
impossibility of ascertaining the applicable law.

The court having done this, must next select the legal system that governs the matter.
This selection will be conditioned by what has aptly has been called a connecting
factor, that is some outstanding facts which establishes a natural connection between
the factual situation before the court and a particular system of law.

By classification of the problem means the allocation of the question raised by the
factual situation before the court to it correct legal category. The main purpose of this
classification is to reveal the relevant rule for the choice of law 915. The rules of any
given system of law arranged under different categories some being concerned with
status, others with succession, procedure, contract, tort and so on.

Therefore, it becomes necessary for the judge faced with a case involving a foreign
element to analyze the circumstances of each case in order to determine the category
into which it falls, for otherwise it will be impossible for the judge to make further
progress on the case at hand, for he will not know what rule of choice of law to apply.
Therefore he must discover the true basis of the claim being made 916. The process of
classification has been briefly prescribed as follows917:
All these rules [of private international law] involve the use of conception of
analytical jurisprudence, viz. procedure, succession, movables, immovables,
capacity, form, contract, tort, etc. In every case which involves a question of
private international law the court is called upon to decide whether a given state
of facts, or a rule of law and the right resulting there from, falls into one or
other of these conceptions or category of analytical jurisprudence. It is this
process – involved in every case- which I describe by the English word “

915
Tezcan v Tezcan (1992) 87 DLR (4th) 503 at 509-511.
916
Re Musurus’s Estate [1936] 2 All ER 1666 at 1667.
917
North, P.M, (1974) Cheshire’s Private International Law, 8th Ed, p.11.

426
 classification”, and which in French legal literature is described by the word
“qualification”.

The importance in the realm of private international law of this process of

classification cannot be exaggerated, for the manner in which it is performed must
govern the ultimate decision of every case. First, a court of forum may have to
classify its own internal law before it can decide what principle of private
international law to apply to the matter at issue.

There can be little doubt that, in practice, classification of the cause of action is
effected on the basis of the law of the forum. Thus by an application of the principles
of English law, an English judge makes analysis of the question before him and, after
determining its juridical nature in accordance with those principles, assigns it to a
particular legal category.

Qn: Discuss the fact that before the court of forum decides a correct choice of
law to guide a case at hand it first has to classify the problem.

OUTLINE.

1.0 INTRODUCTION.

The scope and concept of private international law.

-Jurisdiction.
-Recognition And Enforcement Of Foreign Judgement
-Choice of law.

2.0 WHETHER BEFORE THE COURT OF FORUM DECIDES A CORRECT

CHOICE OF LAW TO GUIDE A CASE AT HAND IT FIRST HAS TO
CLASSIFY THE PROBLEM.

3.0 CONCLUSION.

4.0 BIBLIOGRAPHY

1.0 INTRODUCTION

The Scope and Concept of Private International Law

The term private international law has undergone numerous definitions by various
scholars of which are synonymous and has been most useful for a study of legal
system. This is not law which is enforced by international tribunal, rather it is the law
which is a concern of municipal courts because courts may be required to make a
choice of law where it is required to decide or make a legal decision.

Private international law then, is that part of law which comes into play when the
issue before the court affects some fact, event or transaction that is so closely
connected with a foreign system of law as to necessitate recourse to that system. It

427
has, accordingly, being described as meaning, “the rules voluntarily chosen by a given
state for the decision of cases which have a foreign complexion918”.

The reason behind private international law is the existence in the world of a number
of separate municipal systems of law – a number of separate legal units that differ
greatly from each other in the rules by which they regulate the various legal relations
arising in daily life. Courts in one country must frequently take account of some rule
of law that exists in another.

Private international law has three main objectives: first to prescribe the condition
under which the court is competent to entertain such a claim. Secondly, to determine
for each class of case the particular municipal system of law by reference to which the
rights of the parties must be ascertained. Thirdly, to specify the circumstances in
which (a) a foreign judgement can be recognized as decisive of the question in
dispute: and (b) the right vested in the judgement creditor by a foreign judgement can
be enforced by action in England.

Therefore, under the objectives we surmised that, private international law is always
concerned with one or more of the following three questions, namely: (a) jurisdiction,
(b) recognition and enforcement of foreign judgements, and (c) the choice of law.

Jurisdiction.
Jurisdiction is a word susceptible of several different meaning but in our present case
it is used in widest sense to refer to the question of whether an English court will hear
and determine an issue upon which its decision is sought.

The position is complicated by the fact that there are now four separate sets of rules
determining the jurisdiction of English courts. First, there are the rules under the
European Community Convention on Jurisdiction and Enforcement of Judgements in
Civil and Commercial Matters (The Brussels Convention). Second, there are the rules
contained in a modified version of the Brussels Convention (the Modified
Convention). Third, there are the rules under the EC/EFTA Convention (the Lugano
Convention). Fourth, there are the Traditional rules919.

The basic rule at common law is that, the English court has no jurisdiction to entertain
an action in personam unless the defendant has been personally served with claim
form in England or Wales. There are three reasons for ascertaining jurisdiction,
namely, first, there are certain circumstances in which the court may be empowered to
assume jurisdiction in the absence of the defendant; secondly, there are certain types
of actions, such as petition for divorce, where the mere presence of the defendant does
not render the court jurisdictionally competent; and thirdly, there is a separate regime
of jurisdictional rules in the case of defendant domiciled in a member state of the
European Union920.

918
North P.M and Faweet Cheshire, (2004), Cheshire and North’s Private International Law, 13 th Ed,
P5
919
Ibid p.179
920
Ibid p 7-8.

428
Recognition And Enforcement Of Foreign Judgements
Unsatisfied foreign judgements usually give rise to complicated questions of private
international law. If a claimant fails to obtain satisfaction of a judgement in the
country where it has been granted, the question arises whether it is enforceable in
another country where the defendant is found. It is clear at the outset that owing to the
principle of territorial sovereignty a judgement delivered in one country cannot, in the
absence of international agreement, have a direct operation of its own force in
another921.

Thus, with private international law, there is a great need for a court of forum to
recognize/permit a foreign judgement before it can be able to put it into
application/enforcement. Recognition for a foreign judgement depends on whether the
foreign court has jurisdiction to adjudicate the case. If a foreign court has jurisdiction
to adjudicate on the case, according to English private international law, the English
court will generally recognize the foreign judgement as if one of its own and can be
enforced accordingly922.

The European Community has led to the introduction of important specific rules for
the recognition of judgements from courts of the member states. For instance, the
preamble of the convention on Jurisdiction and Enforcement of Judgements in Civil
and Commercial Matters, is concerned to facilitate recognition, and to introduce an
expeditious procedure for securing the enforcement of judgements obtained in one
European Community State throughout the rest of the community923.

Choice of law.
Upon the court satisfied to posses a jurisdiction, then a further question is, as to what
law should be applicable. Which system of law should govern the case, English or
foreign. Example, on the party of English law which consists of private international
law directs what legal system shall apply to the case, that is, to use a convenient
expression, what system of internal law shall constitute the applicable law. The choice
of law indicates the particular legal system to which a solution of the dispute must be
reached. The function of private international law is complete when it has chosen the
appropriate system of law.

Choice of law, is concerned with the law to be applied to a civil legal issue whose
circumstances involve factors connected with more than one jurisdiction. Therefore,
parties from different countries may be planning to interrelate, for instance, getting
married and would wish to know whether they are free to do so. One question that is
posed thereby is whether, and to what extent, there is a freedom for the parties to
choose the law to govern their transitional affairs. It has also to be considered whether
any choice can be used to order future events or only to govern the situation when a
dispute has arisen and litigation looms. A Dutch author had suggested that:
The principle of party autonomy can be justified entirely by a reference to the
freedom of disposition the parties enjoy in the corresponding substantive
(forum) law. This implies freedom of choice in all areas in which, in principle,
the parties are deemed to be equal partners in a legal relationship or where
they are allowed, by and large, to be their own master. Generally, these are
921
Ibid p 405
922
Ibid p 8
923
Ibid p 481

429
 the areas of substantive law where mandatory rules are scarce as in contracts,
torts, matrimonial property or succession924.

2.0 WHETHER BEFORE THE COURT OF FORUM DECIDES A CORRECT

CHOICE OF LAW TO GUIDE A CASE AT HAND IT FIRST HAS TO
CLASSIFY THE PROBLEM.

It is an undisputed fact that, in any case containing a foreign element, the court of
forum will have to examine matters in sequence. First and foremost the court will
have to determine whether it has jurisdiction both over the parties and cause of action.
Then having satisfied itself that it possesses jurisdiction the court must next determine
the juridical nature of the question that requires decision. In other words, before a
decision upon a case that contains a foreign element can be given, there is always a
preliminary question of classification to be settled, the correct and scientific
determination of which is a matter of prime importance. For instance is it a question
of breach of contract or the commission of a tort?

The appropriate rule for the choice of law will be impossible to apply unless the
classification for the cause of action is determined. The impossibility of the
application for the appropriate rule of the choice of law will also lead to the
impossibility of ascertaining the applicable law.

The court having done this, must next select the legal system that governs the matter.
This selection will be conditioned by what has aptly has been called a connecting
factor, that is some outstanding facts which establishes a natural connection between
the factual situation before the court and a particular system of law.

By classification of the problem means the allocation of the question raised by the
factual situation before the court to it correct legal category. The main purpose of this
classification is to reveal the relevant rule for the choice of law 925. The rules of any
given system of law arranged under different categories some being concerned with
status, others with succession, procedure, contract, tort and so on.
Therefore, it becomes necessary for the judge faced with a case involving a foreign
element to analyze the circumstances of each case in order to determine the category
into which it falls, for otherwise it will be impossible for the judge to make further
progress on the case at hand, for he will not know what rule of choice of law to apply.
Therefore he must discover the true basis of the claim being made 926. The process of
classification has been briefly prescribed as follows927:
All these rules [of private international law] involve the use of conception of
analytical jurisprudence, viz. procedure, succession, movables, immovables,
capacity, form, contract, tort, etc. In every case which involves a question of
private international law the court is called upon to decide whether a given state
of facts, or a rule of law and the right resulting there from, falls into one or
other of these conceptions or category of analytical jurisprudence. It is this
process – involved in every case- which I describe by the English word “

924
De Boer (1990) 54 RabelsZ 24, 37.
925
Tezcan v Tezcan (1992) 87 DLR (4th) 503 at 509-511.
926
Re Musurus’s Estate [1936] 2 All ER 1666 at 1667.
927
North, P.M, (1974) Cheshire’s Private International Law, 8th Ed, p.11.

430
 classification”, and which in French legal literature is described by the word
“qualification”.

The importance in the realm of private international law of this process of

classification cannot be exaggerated, for the manner in which it is performed must
govern the ultimate decision of every case. First, a court of forum may have to
classify its own internal law before it can decide what principle of private
international law to apply to the matter at issue.

There can be little doubt that, in practice, classification of the cause of action is
effected on the basis of the law of the forum. Thus by an application of the principles,
for instance, of English law, an English judge makes an analysis of the question
before him and, after determining its juridical nature in accordance with those
principles, assigns it to a particular legal category.

Although English law principles are being applied here, the case is in fact one that
contains a foreign element, and so the classification that is made will not necessarily
be the same as that which would be made in a purely domestic case 928. It follows,
therefore, that the judge must not rigidly confine himself to the concepts or categories
of English internal law for, if he were to adopt this parochial attitude, he might be
compelled to disregard some foreign concept merely because it was unknown to his
own law. The concepts of private international law, such as “contract”, “tort”,
“corporation”, “bill of exchange”,929 must be given a wide meaning in order to
embrace “analogous legal relations of foreign type”. In the words one author:
The various legal categories, into one of which the judge must decide that the
question falls before he can select his conflicts rule, must be wider than the
categories of the internal law, because otherwise in conflicts question will be
unable to make provision in his own internal law, and thus one of the reasons
for the existence of the science of conflict of laws will be defeated.

In support of this, is the case of, De Nicolas .v. Curliar930, where the court, by its
readiness to recognize a foreign concept, widened the category of contracts as
understood by English internal law.

However, under this process of classification of the cause of action, though

occasionally, there are some difficulties that may be experienced along the way. In the
first place, it may be a case near the line in which it is difficult to determine whether
the question falls naturally within this or that juridical category. Secondly, it may be a
case where English law and the relevant foreign law hold diametrically opposed views
on the correct classification. There may, in other words, be a conflict of classification,
as, for instance, where the question whether a will is revoked by marriage may be
regarded by the forum as a question of matrimonial law, but by the foreign legal
system as a testamentary matter931.

928
Macmillan Inc .v. Bishopsgate Trust (No 3) [1996] 1 WLR 387
929
G & H Montage GmbH .v. Irvan [1990] 1 WLR 667 at 678.
930
[1900] AC 21
931
Cf Re Martin, .v. Loustalan [1900] p.211

431
The above two difficulties are well illustrated by the historic Maltese Marriage
case932, decided by the Court of Appeal at Algiers in 1889, which made the problem
of classification a fashionable subject of study.

A husband and wife, who were domiciled in Malta at the time of their marriage,
acquired a French domicile. The husband bought land in France. After his
death his widow brought an action in France claiming a usufruct in one
quarter of this land. There was uniformity in the rules for the choice of law of
both countries: succession to land was governed by the law of the situs, but
matrimonial rights were dependent on the law of the domicile at the time of
the marriage.

In the case, the first essential, was to decide whether the facts raised a question of
succession to land or of matrimonial rights. At this point, however, a conflict of
classification emerged. In the French view the facts raised a question of succession; in
the Maltese view a question of matrimonial rights. When a conflict of this nature
arises it is apparent that, if a court applies its own rule of classification, the ultimate
decision on the merits will vary with the country in which the action is brought.
Therefore, on this hypothesis, the widow would have failed in France but would have
succeeded in Malta.

Hence, it is arguable, for instance, that when English private international law submits
intestate succession to movables to the law of the deceased’s domicile, the expression
“intestate succession” must be given the meaning that it bears in English internal law
and not a more extensive meaning than may be attributed to it in the foreign domicile.
But in the opposition to this view, which had wide support, it has been suggested that
classification must be based on the “essential general principles of professedly
universal application” of analytical jurisprudence and comparative law 933. Although,
it may be desirable to solve the problem in this scientific manner, it is scarcely
practicable to do so whilst there are no commonly agreed general jurisprudential
principles934.

3.0 CONCLUSION

Basing on what we have discussed above, we sum up by stipulating that, it is a truism

that there are three fundamental questions, which may arise in the cause of examining
a civil legal issue, which has foreign complexion. These are questions as to
jurisdiction of the court of forum, recognition and enforcement of the foreign
judgement, and choice of law. However, it should stick in our minds that, before the
court of forum decide a correct choice of law to guide a case at hand it first has to
classify the problem.

Qn:
Recognition is a first step of enforcement, is it necessary that for every
recognition there be an automatic enforcement?
State the basis, and any importance(s) of recognition of foreign judgment.

932
Anton .v. Bortolo Clunet (1891)
933
Beckett (1934) 15 BYBIL 46, 59
934
North P.M and Faweet Cheshire, Op. Cit. p.37

432
 TABLE OF CONTENTS

1.0: INTRODUCTION
1.1: Understanding of the law of conflict of laws
1.2: The concept of recognition and enforcement of a foreign judgment

2.0: MAIN BODY.

2.1: Whether it is necessary for every recognition to have an automatic
enforcement.
2.2: The Basis of recognition and enforcement
2.3: The importance of recognition and enforcement of foreign judgment.

3.0. CONCLUSION.

4.0 REFERENCE

1.0. INTRODUCTION.
1.1: Understanding of the law of conflict of laws
Any legal system of a state is intended to deal with the settlement of disputes which
occur within the state and a decision given by courts of the respective state are
intended to be applied within the state. However due to development there has been
interaction of people from different states conducting trans-boundary business. The
issue arise as to how and what court is to determine the dispute. This is due to the fact
that each legal system has its own system of laws which may not correspond to that of
the other state as a result a conflict of laws arise. To solve this problem it became
important to apply private international law which is also called the law of conflict of
law.

1.2: The concept of recognition and enforcement of a foreign judgment

The fact that a plaintiff has been granted a judgment in his favour does not
automatically result to the execution of his judgment. Where the judgment is granted
by a foreign court with competent jurisdiction as against the defendant who is in the
other jurisdiction or his property is situated in another jurisdiction, then what might
arise is how that judgment can be executed in that other foreign country. It is here
where the concept of recognition and enforcement of foreign judgment arises.

It is undisputable that it is always in the interests of justice that the parties to a dispute
should be put in equal positions with respect to their terms of agreement. Therefore
recognition and enforcement of foreign judgment are intended to put the parties in a
dispute which has been resolved in a foreign court to be enforceable in another
country where the defendant or his property is situated

433
2.0: MAIN BODY

2.1: Whether it is necessary for every recognition to have an automatic

Enforcement
Recognition and enforcement of foreign judgement are two different aspects though
they complement each other. The enforcement depends on recognition, thus if any
judgement is not recognized, then such judgement can not be enforced. However,
there are instances where there can be recognition without enforcement of such
foreign judgement, thus it is not necessary that to every recognition be automatic
enforcement, hereunder are the instances where recognition can take effect without
there being enforcement.

Recognition being a prerequisite factor in enforcement of foreign judgements, it

comes first to any court before it can decide whether it can enforce a judgement or
not. As enforcement of foreign judgement is a procedural matter, a court may
recognize a foreign judgement but if the judgement creditor, after such recognition
does not register such judgement as required for instance by S. 4(1) of the Reciprocal
Enforcement of Foreign Judgement Act,935 or in case of common law if the judgement
creditor does not institute a new claim by way of an action for debt, such recognition
will end without enforcement of the said judgement.
This fact can be observed in the case of WILLOW INVESTMENT V. MBOMBA
NTUMBA AND ANOTHER,936 that once a judgment has been proved, the burden
would lie on the judgement debtor as to why he should not perform the obligation and
it is upon the judgment creditor who seek to enforce the same at common law to do so
by direct execution of the judgement through an action for debt.

Thus the recognition of the foreign judgment may not have an effect as to
enforcement where the judgement debtor has shown cause for not performing his
obligation thereon, or by the failure of the judgement creditor to bring an action on
debt.

The common law doctrine is that a foreign judgment, though creating an obligation
that is actionable in England, cannot be enforced without the institution of fresh
proceedings. In England, if a fresh action is brought on the foreign judgment that
action is subject to the Civil Procedure Rules. And furthermore, any action in England
will require the English rules as to Jurisdiction and service of claim forms to be
satisfied as stated in PERRY V ZISSIS937.

Recognition of a foreign judgement may also arise on its own without there being a
question of enforcement, where judgement is intended to be used as a defence in a
new action by the plaintiff to the defendant as it was observed by Lord Mansfield in
the case of MOSTYN V. FABRICAS938, that the law of the place where a tort was
committed could be recognized in England and used as a defence in an action in
England where the act was not regarded as tort. This implies that not necessarily that
where there is recognition there must be an automatic enforcement.

935
This is a procedure in Tanzania with respect to states which receives reciprocity treatment as
required by The Reciprocal Enforcement of Foreign judgement Act, Cap 8.
936
[1996] T.L.R 377.
937
[1977] 1 Lloyd’s Rep 607
938
(1774) 1 CO WP, 161

434
Another instance where recognition can operate positively on its own is when it
necessitates establishing a title to property in favour of the foreign judgement creditor.
This can be established by the plaintiff asking the court to recognize the foreign
judgement so as to declare the title of the property.

A foreign judgment which purports to operate in rem will not attract extra-territorial
recognition unless it has been given by a court internationally competent, that is, the
adjudicating court must have jurisdiction to give a judgment binding all persons
generally. On the other hand enforcement of judgment in rem is not such fairly and
relatively straight forward, rather it raises different issues. No foreign judgment
relating to immovable property abroad can be enforced in England. If the judgment
relates to movables, the real issue is whether it was sufficient to pass title to the
property, that is, a question of recognition other than enforcement939.

Also the court can recognize a foreign judgement without enforcing it if the court
finds out that the remedy sought is for specific performance and that the court is of the
considered opinion that it cannot easily supervise the enforcement of such a remedy,
and also as the courts are to entertain matters to which remedy sought is a fixed sum
of money this is with respect to enforcement of foreign judgements940.

2.2: The Basis of recognition and enforcement

The main basis of recognition of foreign judgments has been said to be the doctrine of
obligation which was first laid in the case of RUSSEL V. SMITH941, where it was
observed that where the foreign court of competent jurisdiction has adjudicated a
certain sum to be due from one person to another, the liability to pay that sum
becomes a legal obligation that may be enforced in this country (England) by an
action in debt.942 This position was reiterated in case of SCHIBSBY V.
WESTENHOLZ,943 that, when judgement of a court of competent jurisdiction over
the defendant imposes a duty or obligation on him to pay the sum for which
judgement is given, the foreign courts are bound to enforce.

Previously, the basis for recognition was regarded to be on the ground of

comity/courtesy. However, this idea fainted as it became no longer popular as it was
logically not valid to say that courts recognizes foreign judgements out of politeness
of one State to another State. It has been observed that courts admit evidence of an
extraneous system of law, not because they are influenced by a feeling of courtesy to

939
See the case of THE CITY OF MECCA [1879]5 PD 28
940
See also Section 8 of Cap 8 as to the effect of recovery of sum of money payable under a foreign
judgment
941
(1842) 11 LJ EX 308, 9 M & W 810
942
In Tanzania such enforcements after being recognized are being enforced by way of registration of
the foreign judgment as per S. 4(1) of Reciprocal Enforcement of Foreign Judgements, Cap 8, if the
foreign court which delivered judgement receives reciprocity treatment in Tanzania, i.e. the country
within which the foreign court is located is listed in the schedule of the G.N. 8 and 9 of 1936. However,
if not within the list, and Tanzania recognizes such a judgment, the High Court of Tanzania will not be
denied jurisdiction only on that basis, it may enforce such judgement by way of an action in debt, an
action recognized under the common law traditional rules as was held in the case of WILLOW
INVESTMENT V. MBOMBA NTUMBA AND ANOTHER, (Supra)
943
(1870) LR 6 QB 155 at 159

435
the foreign legislator, but because the foreign law is one of the essential facts in the
case.

Thus the idea that recognition of foreign judgements is out of courtesy has been
supplanted by a far more defensible principle that has been called the doctrine of
obligation. However the very same doctrine has also received criticisms in that it fails
to reveal the policy considerations underlying the rules on recognition and
enforcement. It is more concerned with explaining in theoretical terms why we
recognize and enforce foreign judgments than with explaining in theoretical terms
which foreign judgments should be recognized and enforced. In consideration of this,
the Supreme Court of Canada has referred itself to a modern and more clearly defined
concept of comity which is concerned with ‘justice, necessity and convenience’944

2.3: The importance of recognition and enforcement of foreign judgment.

Recognition of foreign judgements has been regarded to be inevitably necessary for
two main reasons to be explained below.

2.4.1. To Avoid Injustice.

This is because the world has a number of separate territorial systems of law that
differ greatly from one another in the rules by which they regulate various legal
relations. Such invariability of application of local laws would often lead to injustice
if such matter decided in one country is brought before the court of some other
country applying different legal rules in determining matter of the same nature. Thus,
this necessitated the court in one jurisdiction to take into account some rules of law of
another territorial system because if each State emphasising on applying their own
laws irrespective of the nature of the case, it will result into grave injustice as the laws
of State differs.

Take an example of a contract furnished in France, whereby the law regarding

contractual transaction do not put emphasis on consideration as an essential
requirement for furnishing a valid contract. Then if there is a breach of the contract of
by one party to a contract and the matter is to be determined by the courts in Tanzania
where the law regarding contractual relations regards consideration as an essential
requirement for a valid contract, in such a case to apply the law of contract of
Tanzania in determination of the matter would amount to injustice as it will lead to
declaring of a void contract for lack of consideration. Such position was held in a case
of JAGER V. CORDULA LTD,945 where it was decided that a contract of service
between a foreign nation and a foreign company made in Tanzania, Tanzania law
applies for justice to be done.

944
That was stated in MORGUARD INVESTMENTS LTD V DE SAVOYE [1991] 76 DLR 4th 256
where the court said;
“Comity in the legal sense, is neither a matter of absolute obligation, on the one hand, not of
mere courtesy and good will, upon the other. But it is the recognition which one nation allows
within its territory to the legislative, executive or judicial acts of another nation, having due
regard both to international duty and convenience, and to the rights of its own citizens or of
other persons who are under the protection of its laws”
945
[1972] H.C.D. 153.

436
2.4.2. To Protect Vested Rights.
Recognition of foreign judgments also aims at protecting rights of persons which have
been vested to them by law. Under the doctrine of vested rights/doctrine of acquired
rights, the law has a main purpose of protecting and give effect to the rights vested to
persons by law. Then the law will fail to do so if in case of rights vested to persons as
a consequence of a foreign law, refuse to recognize and give reference to the legal
system under which they had arisen. This is because the rights of the parties depend
partly upon the circumstances of the transaction and partly upon the law which gave
the transaction its force and effect.

With this respect, the courts in order to protect the rights already vested in a suitor;
have to give regards/to recognize a foreign law under which rights have arisen. By
doing so, it does not mean that the court is allowing the foreign law to operate in that
country, but the court only recognizes the fact that the law did operate in that foreign
country and it created certain rights which ought to be protected.

Importance of recognition of foreign judgement in order to protect of vested rights

was well illustrated in the case of DALRYMPLE V. DALRYMPLE,946 where the
question at issue was whether Miss Gordon was the wife of Mr. Dalrymple, and Sir
William Scott stated, and we quote;
‘The cause being entertained in an English court, it must be adjudicated
according to the principles of the English law applicable to such a case. But
the only principle applicable to such a case by the law of England, is that the
validity of Miss Gordon’s marriage rights must be tried by reference to the
law of the country where, if they exist at all, they had their origin’ (Emphasis
is ours.)

3.0: CONCLUSION.
Recognition as has been seen above is has come to be inevitably necessary as to
ensure justice and promotion of rights acquired and vested by law in a foreign state.
However, may also be denied in some instances as when such recognition will be
contrary to natural justice. Against public policy or will result into conflict with
another judgement given in the contracting state.

QUESTION:
A foreign judgement may be enforced by a mere registration. In light of this
statement discuss.
a) Who is required to apply for registration of the said judgement?
b) What are the effects of registration?
c) Whether the registered judgements can be set aside.

946
(1811) 2 HAG CO 54

437
CONTENTS

1.0 INTRODUCTION.

1.2. The concept of recognition and enforcement of foreign judgement.

2.0. MAIN BODY.

a) Who is required to apply for registration of the said judgement.

b) What are the effects of registration.

c) Whether the registered judgement can be set aside.

3.0 CONCLUSION

INTRODUCTION

THE CONCEPT OF RECOGNITION AND ENFORCEMENT OF FOREIGN

JUDGEMENTS.

Unsatisfied foreign judgements may give rise to the complicated questions of Private
International Law .If the claimant fails to obtain satisfaction of the judgement in the
country where it has been granted, the question arises whether it is enforceable in
another country where the defendant is found. It is clear at the outset that owing to the
principle of territorial sovereignty a judgement delivered in one country cannot, in
absence of international agreement, have a direct operation of its own force in
another.

Nevertheless, the common law systems have long permitted the enforcement of a
foreign judgement within certain defined limits, since otherwise one of the essential
objects of Private International Law, that is the protection of rights acquired under a
foreign system of law, would not be fully attained947.

Initially, the recognition and enforcement of foreign judgement was based on comity.
However upon development of the doctrine of obligation in 1842, this attitude has
changed. Now the doctrine provide that where a foreign court of competent
jurisdiction has adjudicated a certain sum to be due from one person to another , the
liability to pay that sum becomes a legal obligation that may be enforced in English
courts by an action of debt948

In another case of SCHIBSBY V. WESTENHOLZ949 where it was stated that

947
This is provided under page 405 of the book of Private International Law , Thirteenth Edition by
Cheshire and North.
948
This was stated in the case of RUSSEL V. SMITH (1842) 9 M&W 810.
949
(1870) LR 6 QB 155 at page 159.

438
 “the judgement of a court of competent jurisdiction over the defendant
imposes a duty or obligation on him to pay the sum for which judgement
is given, which the court in this country are bound to enforce.”

However, this doctrine of obligation has received criticism in that it fails to reveal the
policy considerations underlying the rules on recognition and enforcement. It is said
that this doctrine is more concerned with explaining in theoretical terms why we
recognize and enforce foreign judgements than with explaining which foreign
judgements should be recognized and enforced.

MAIN BODY.

There are various criteria used in determining the jurisdiction of a court in

international sense to recognize and enforce foreign judgement. These include; the
residence and possibly, presence of defendant in the foreign country at the time of the
suit, submission of defendant to the foreign court, and the real and substantial
connection test.

Coming direct to our question, we do oppose with the statement that foreign
judgements may be enforced by a mere registration. This is because for the
enforcement of foreign judgement there are various processes to fulfill so as to
register and not a mere registration .For instance under the Rules of the Reciprocal
Enforcement of Foreign Judgement950, there are rules provided so as to fulfill the
registration process. First of all application must be made ex-parte to a judge in
chambers of the high court. Section 3 of the same act provides that the application
shall be supported by an affidavit of the facts providing a certified copy of the
judgement issued by the original court and authenticated by its seal and a translation
of the judgement certified by a notary public or authenticated by affidavit stating all
the information that the applicant is entitled to enforce the judgement, or if there is
amount in respect of judgement remains unsatisfied. The application for registration
must also specify the amount of the interest if any which under the law of the country
of the original court has become due under the judgement up to the time of
registration and shall be accompanied by such other evidence.

Also the rules provides that the affidavit shall also state the full name, title, trade or
business and the usual or last known place of abode or of business of the judgement
creditor and judgement debtor respectively so far as known to the deponent. Therefore
according to the provision of section 3 of the rules of the Reciprocal Enforcement
Judgement and other sections of the same act, we are of the view that the enforcement
of foreign judgements cannot be done by a mere registration rather by a complicated
process which must be fulfilled.

Having seen the short explanation about the quotation of the question it is a high time
now to look one item after another.

950
Cap 8 R. E. 2002

439
A ) Who is required to apply for registration of the said judgement.

A person being a judgement creditor951 under a judgement to which this part applies
may apply to the High Court at any time within six years after the date of the
judgement or where there have been proceeding by way of appeal against the
judgement within six years after the date of the last judgement given in those
proceeding , to have the judgement registered in the High Court and any such
application the court shall, subject to proof of the prescribed matter to the other
provision of this act order the judgement to be registered952 .Provided that the
judgement shall not be registered if at the date of the application :-

a) It has been wholly satisfied or

b) It could not be enforced by execution of the country of the original court.

Under common law the judgement creditor is also the one to apply for registration but
he has the alternative. He may either sue upon the obligation created by the judgement
or he may plead the judgement as res judicata in any proceedings which raise the
same issue. The common law doctrine is that a foreign judgement though creating an
obligation that is actionable in England , cannot be enforced here without the
institution of fresh legal proceedings. Nevertheless if a fresh action is brought in
England on the foreign judgement that action is subject to the rule of Supreme Court,
for example a plaintiff may apply for summary judgement on the basis that the
defendant has no claim to the claim953.

The position at common law seems to be the same as that of our law. This is because
the time for making application for registration is also six years. But at common law a
person who has attained the judgement in territory may within 12 months apply to the
High Court in England or Northern Ireland or to the Court of Session in Scotland for
its registration where upon the court may if in all circumstances of the case they think
it is just and convenient that the judgement should be enforced in the United Kingdom
order the judgement to be registered.

Under our Tanzania law the great thing to remember is that for the recognition and
enforcement of foreign judgement that judgement must be given from among the
countries listed under the schedule to part two of cap 8 of R. E. 2002. In the case of
WILLOW INVESTMENT V. MBOMBA NTUMBA AND ANOTHER954 ,
Mapigano J, observed that the provision of cap 8 cannot apply to the enforcement of
the judgement obtained in Zaire ( now Democratic Republic of Congo) since that
country is not among those countries listed under the schedule to part two of the
Ordinance. It was stated by Biron J, IN THE MATTER OF PATRICK ERNEST
HOWFMAN, AN INFANT955 , that where there is no legislation of Reciprocal
951
Judgement creditor means the person in whose favour the judgement was given and includes any
person in whom the right order the judgement have become vested by succession or assignment or
otherwise. This is provided under section 2 of the Reciprocal Enforcement of Foreign Judgements Act
(CAP 8 R.E. 2002).
952
.This is according to section 4(1) of Cap 8 R.E 2002..
953
Grant v. Easton (1883), 13 QBD 302.
954
(1996) TLR 377 at 380.
955
(1972) H. C. D 319.

440
Enforcement of Judgement of this country and the other country then the court in
Tanzania mainland is not bound to follow the decision of such other foreign country
and only that it can use it as a persuasive authority.

b) What are the effects of registration.

Section 4(2) of the reciprocal enforcement of foreign judgements acts provides that

(a) A registered judgement shall for the purposes of its execution be of the
same force and effect. This means that it may be followed by the same
proceedings as if it had originally obtained in the registering court
.
(b) Proceedings may be taken on registered judgement.

(c) The sum for which a judgement is registered shall carry interest and

(d) The registering court shall have the same control over the execution of
a registered judgement as if the had been a judgement originally given
in the registering court and entered on the date of registration.

Under the English law, a judgement registered under the act 956 is of the same effect
and force, and it may be followed by the same proceedings, as if it had originally been
obtained in the registering courts957. A plaintiff is in no way deprived of his right to
sue at common law upon the obligation created by the foreign judgement, but if he
sues on a judgement that is registrable under the act he is not entitled to the costs of
the action unless registration has been refused or unless the court otherwise orders.

c) Whether the registered judgements can be set aside.

Section 6(1) of the act958provides that on application in that behalf by any party
against whom a registered judgement may be enforced, the registration of the
judgement

a) Shall be set aside if the registering court is satisfied:-

i) That the judgement is not a judgement to which this part applies or was registered
in contravention of the provisions of the act, or

ii) That the courts of the country of the original court had no jurisdiction in the
circumstances of the case, or

iii) That the judgement debtor, being the defendant in the proceedings in the original
court, did not (notwithstanding that process may have been duly served in him in
accordance with the law of the country of the original court) receive notice of those
proceedings in sufficient time to enable him to defend the proceedings and did not
appear, or
956
Foreign judgements (reciprocal enforcement) act 1933.
957
Section 9(5) .ibid
958
The reciprocal enforcement of the foreign judgements acts cap 8 of R. E. 2002.

441
iv) That the judgement was obtained by fraud, or

v) That the enforcement of the judgement would be contrary to public policy in the
country of the registering court, or

vi That the rights under the judgement are not vested in the person by whom the
application for registration was made.

Also under section 6 (1) b of the same act, the registered judgement may be set aside
if the registering court is satisfied that the matter in dispute in the proceedings in the
original court had prior to the date of the judgement in the original court, been the
subject of a final and conclusive judgement by a court having jurisdiction in the
matter.

Under the English law the reasons for setting aside the registered judgement are
almost the same to that found in our jurisdiction. For example the registered
judgement can be set aside if the judgement was obtained by fraud. Under English
law the unsuccessful party, instead of appealing or applying for a new trial may bring
an independent action to set aside the judgement. It will not succeed unless he alleges
and proves that new facts, evidential of fraud have been discovered before giving the
judgement or during the trial. He must further prove that this new evidence had if
been adduced in the original action would in all probability have had a material effect
upon the decision. Thus judgement been set aside upon proof that the acted in
collusion or that the essential document was suppressed or that a forged will, a false
affidavit or certain false document, or that the judgement debtor was fraudulently
induced not to appear in the original proceeding or that the original judgement was
obtained by perjured evidence.

The nature of fraud was explained by DE GREY C. J. in his judgement in the

Duchess of King stone’s case (smith’s leading) 959 which decided that a judgement
may be set aside if fraudulently obtained.

Also the judgement may be set aside if the court is satisfied that the enforcement of
the judgement would be contrary to the public policy. No action is sustainable upon
the foreign judgement which is contrary to the English law principle of distinctive
policy or which has been given in proceedings of a penal or revenue nature as it was
decided in the case of Huntington v. abtril960

CONCLUSION
We are concluding by saying that the enforcement of foreign judgements can not be
fulfilled by a mere registration rather there are various process which accompany the
process of registration. But when a foreign judgement has been registered unless the
registration is set aside that judgement may be executed in the same force and weight

959
13 edition at page 651.
960
(1895) AC 15.

442
as if it has been given by the High Court. For the purpose of execution interest may be
added even if the interest is not given in the judgement.

Qn: Critically, discuss the concept of choice of forum using conversions and case
law showing how courts have given effect to jurisdiction clauses.

OUTLINE.

1.0 Introduction

2.0 Concept of Private International Law

3.0 Concept of Choice of Law

4.0 How Courts have given Effects on the Jurisdiction Clauses by using
Conversions and Case Law

5.0 Conclusion

6.0 Bibliography

1.0 Introduction

Private International Law is that part of English laws which comes into operation
whenever the courts is faced with a claim that contains a foreign elements. It is only
when this element is present that Private International Law has a function to perform.
It has three main objects that is to prescribe the conditions under which the court is
competent to entertain such a claim to determine each case under its Municipal
system of laws by reference to which the rights of parties must be ascertained and
thirdly specify circumstance in which foreign judgment can be recognized in the
dispute the right vested in the judgment creditor by foreign judgment can be enforced
by action in England961.

2.0 Concept of Private International Law

Pitt Cobbet has defined Private International Law as the body of rules for determines
questions as to the selection of appropriate law in civil cases, which involve a foreign
element. Thus Private International Law is that branch of Private International Law,
which decides law applicable in the issue in the court, which will have jurisdiction to
decide the issue it more popularly termed as “conflict of laws”962.

It is also been described to mean, the rules voluntarily chosen by a given state for
decision of cases, which have foreign complexion. Therefore Private International

961
North P.M, (1974) Cheshire’s Private International Law, 9th ed, Butter worth and Company Limited,
London, pg 3
962
Kapoor, S. K, (2003), International Law and Human Rights (Nutshell), 12th ed, Central Law
Agency, New Delhi, pg40

443
Law comes into operation whenever the court is seized of a suit that contains a
foreign element. It function only when the element is present.

Private International Law is separate and distinct unit in the English Legal system just
as law of torts, contract, and it deals with many aspect and it is always concerned with
one or more of three questions namely;

Jurisdiction, where the basic rules is that, under English court it has no jurisdiction to
entertain an action in personam unless the defendant has been personally served with
a claim form in England or Wales. This cannot be satisfied while the defendant is
abroad. But it may apply where the court is empowered by statute to assume
jurisdiction over absent defendant, other action, where mere presence of the defendant
in the country does not render the court jurisdictionally competent, and separate
regime of jurisdictional rules in case of defendant domicile.

The second question is Recognition that the English court will recognize the foreign
judgment as if one of its own and it can be enforced accordingly.

The last aspect is choice of law, where the English court has to consider which system
of law, English or foreign must govern the case, e.g. the action before the English
courts may concern a contract made or tort committed abroad or the validity of a will
made by a person who died domicile abroad. In each case that part of English law,
which consists of private international law, directs what legal system shall apply to
the case.

3.0 Concept of Choice of Forum

A word forum means a place where dispute may be tried. The court in which a case is
brought. In connection with a definition given, also we have to consider the term lex
fori as the law of forum or court in which a case is tried. More particularly the law
relating to procedure or the formalities in force.

In determine the choice of forum; there are various question especially 3 questions,
which are involved in the court of forum that questions are jurisdiction, choice of law
recognition and enforcement.

The court must decide whether have jurisdiction to decide case occurred in other
jurisdiction. The rules of private international law will assist the court to determine
whether the court is competent to decide and to hear the dispute. Once judgment, then
competence of the court implies two separate matter, but where the matter determined
else where and when such person come with this judgment in the court will look;
whether the court recognize that case, and second whether enforcement of judgment.

After the court satisfied that it has the jurisdiction to determine the matter then
another question is, what law will be applicable, this is a choice of law. Choice of law
does not creates a problem of the parties to the contract in advance choose which law
should apply in case where dispute between parties to the contract arose.

444
In determine which law should apply will depend on the choice of the parties. They
have the discretion to choose the law, which is applied in the area to which the
contract is that, the law in which the parties are domicile at a time of a dispute.

If there is no provision in their contract which relating to which law should apply in
case of the dispute, then the court of forum has the duty to determine the choice of
law in order to solve the dispute between parties of foreign nature.
In determine which law should apply, there are connecting factors in which the court
of forum will determine the choice of law.
These connecting factor which court of forum will determine are:
Domicile; this domicile is based on 2 legal factors, one is residence and second is
“animus manned”. It should be remembered that one person couldn’t have two or
more simultaneous domicile. The residence is not necessary to be permanent but it
may be temporary due to different activities without loosing your domicile.

The legal significant of domicile is to attract the residence the territorial system of
law where they are obtained. It sometimes known as liability to obey the law of
territory to which the parties are domicile. In the concept of private International law,
domicile has been classified into, domicile of origin, domicile of choice and domicile
under disability.

Domicile of origin is the one in which every person acquire on birth. Is a place where
you are born and grow up and attain age of majority and become an adult person

Domicile of choice is where an adult abandons his domicile and acquire another
domicile. This can be done by move away from domicile of origin and the court have
to be satisfied to know what make you to change your domicile and acquire another
domicile. This is providing by those objective factor but not from what you claim
.
Domicile under disability is the one, which attributed to the dependency of residence.
The tradition of common law rules suggest that domicile of under disability should be
applied by the infants and married women.
Domicile is a very determinant factor, which are applied in the common law system.

Nationality is another connecting factor in which the court of forum will relied upon
when deal with the matter of choice of law. Nationality may be categorized into,
nationality by birth or nationality by naturalization.
.
Nationality by naturalization acquired by the person through registration after
satisfying certain requirement governing citizenship. Nationality is connecting factor,
which are mainly applied to civil law courtiers like French.

445
4.0 How courts have give Effect on Jurisdictional Clause by using Convention
and Case Law:

The term Jurisdiction is a word susceptible of several different meanings, but in the
present account it is used in its widest sense to refer to the question of whether an
English court while hear and determine an issue upon which its decision is sought963.

A term clause is an agreement between the parties, the parties who eventually come to
the parties to a suit. Parties may agree as to which court they will be and to adjudicate
their dispute. They will do so as part of their broader contract.

Jurisdiction clause is important feature in international, financial and commercial

agreement or International standard form agreement. Clause may confer to the court
either exclusive jurisdiction that is the court of that country only will be competent to
entertain the dispute, and Non-exclusive means any party aggrieved may refer
complaint or initiate procedure in a named country. Article 3(b) convention on
choice of court agreement.

The following are the ways, which court effect jurisdictional clause through
conventions and case laws.
Under English law there are conventions, which are applicable to include Brussels
Conventions, Lugano Convention and Tradition rules.

Jurisdiction under the Brussels Convention.

In broader terms the rules on jurisdiction contained in the Brussels convention apply
where the matter is within the scope of the convention (civil and commercial matter).

Jurisdiction under the convention depends on a specified connection with the forum.
Example, the defendant is domiciled there. If a contracting States is allocated in the
jurisdiction under the convention, the courts in that States have no discretion to decide
or to take jurisdiction at least in a case where the alternative forum is another
contracting state.

When Does the Brussels Convention apply.

The matter must be within the scope of the convention;

Under Article 1 is designed to deal with the scope of the convention the preamble
indicates that international jurisdiction only concerned with the international
jurisdiction of contracting States. It follows that it will not apply where a dispute
involves no foreign element or where the foreign element involved another party of
UK. Also the Brussels convention based on the rules on jurisdiction, recognition and
enforcement make it clear that they do not apply to proceedings in contracting States
concerning the recognition and enforcement of judgment given in non-contracting
States.

Article 1 declares that this convention shall apply in civil and commercial matters
whatever the nature of the court or tribunal. No definition of civil and commercial
matters. Article 1,also does not include revenue, customs or administrative matter. In

963
Cheshire and North pg179

446
case of LTU v. Euro Control964, it was held that, a community meaning had to be
given to civil and commercial matters with the result that convention where a public
authority was acting in the exercise of its powers.

The difficultly with requiring the public Authority to be acting in the exercise of its
power before the matter can be excluded from the convention is that it is often hard as
to whether a public authority is acting in private capacity or in the exercise of its
powers. In Netherlands State v Ruffer965. The court of justice held that a public
authority in this case the Dutch States was acting in the exercise of its power in
respect of a public waterway, when it sought to recover from a Germany ship owner
the court in removing a wreck, even though under Dutch law the Dutch courts being
seized of the matter, the matter was classified as one tort.

But there are some matters which are excluded in convention; example arbitration
award can not be enforced under the convention and does not apply to proceedings,
the decision concerning application for the revocation amendment, recognition and
enforcement of arbitration award, However the exclusion goes wider than this. In
Marc Rich and Co v. Societa’ Italian Implant966The court held that, arbitrations
excluded in its entity including proceedings brought before the English courts for the
appointment of an arbitrator, whether a dispute is excluded from the scope of the
convention is determined by reference solely to the subject matter of the dispute

Also in Bankruptcy proceedings relating to the winding up of insolvent companies or

other legal person judicial arrangements composition and analogous proceedings. It is
intended that only proceedings arising directly from and closely connected with the
bankruptcy should be excluded from the convention. In Gourdain v Nadle967 the
court of justice held that, a French provision under which manager of a company in
liquidation could be orded to pay money to form part of the assets of the company
came within the bankruptcy exclusion the legal foundation of this action being very
closely connected with winding up proceedings. For example where the defendant is
domicile in a contracting state the bases of jurisdiction under the convention will
apply not the traditional rules of jurisdiction of the forum as well where the defendant
is not domiciled in a contracting states in general the traditional rules of jurisdiction of
forum will apply.

There are exceptions to this ie.some of the basis of jurisdiction under the convention
(article 16 and 17) will apply to defendant, even though they are not domiciled in a
contracting states. Where the defendant is domiciled in a contracting state; Article 2 in
sect.1 contains the most important basis of jurisdiction under the convention that a
defendant domiciled in a contracting state is subject to the jurisdiction of the courts of
that state. If the defendant is to be sued in the courts of a contracting state other than
that of a contracting state other than that of his domicile as per Article 3
Also where defendant is not domiciled in a contracting state, Article 4 states that the
jurisdiction of the court of each contracting state shall be subject to the provision
Article 16 be determined by the law of that state. So Article 4 requires the courts of
contracting states to ascertain when a defendant is not domiciled in contracting states.

964
(1977) 2 ELR 61
965
(1980) ECR 3807
966
(1991) ECR 1-3855
967
(1979) ECR 733

447
 Under Article 5(1) in matter relating to contract, in the courts for the place of
performance of the obligation in questions, what matter relating to a contract?
Normally there will be a consensus among contracting states whether a particular
matter does not relate to a contract. In the case of Bank of Land v. Investment
Management Regulatory Organization Ltd968. arise out of one situation where
there is no such consensus. It raised the question of whether an obligation to pay
money arising from the relationship between an association and its members come
within Article 5(1). The court of jurisdiction held that: this came within sect.5 (1) and
the court give a community meaning to the concept of matters relating to a contract
and said that it includes relationship which involve close links of the same kind as are
created between the parties to contract.

Further more, under Article 17 of Brussels convention, in the case of M/s Bremen v.
Zapata Offshore Co969. The court held that, jurisdiction clause was prima-facie value
and should be enforced and until the party seeking that clause can show that, that
clause is unreasonable in which case the court will ignore the jurisdiction clause.

The court added that, a freely negotiated private international agreement un affected
by fraud, undue influence or even over willing bargaining power should be given fully
effects.
Also under Article 24 of the Brussels convention allows courts in contracting states
other than the chosen forum to offer interim measures in favour of the
plaintiff/claimant. They are available in USA and England. The purpose of giving
effect on jurisdiction clause is to reflect party autonomy to contract out of free consent
and may enter into a binding agreement. The court will bind them to honor the
agreement. The court will resist to give effect where they feel that the clauses are
repugnant to public policy.ie.to deprive weaker party protection of law. Court will
therefore interfere with choice of the forum or by ordering provisional or protective
measures to the claimant.
Also in case of standard form contract or agreements the clauses may confer to the
court exclusive or non-exclusive jurisdiction. For instance bank contract or insurance
contract the parties who entered in that contract are binded by that terms of contract.
The court therefore cannot interfere that contract unless that contract is against public
policy or deprive the rights of parties to contract

968
(1989) SLT 432
969
(1972) USI 407

448
Jurisdiction under the Lugano Convention

The rules on jurisdiction contained in the Lugano Convention are applied in the UK
and other European community States where the matter is within the scope of the
convention (a civil and commercial matter)

Lugano convention applies in relation to jurisdiction in the situation where the matter
is within the scope of the convention and the defendant is domiciled in contracting
states. (Articles 16 and 17) gives jurisdiction to contracting states. This is the same as
Brussels convention and presents no problems for European Free Trade Area (EFTA)
contracting states. However member states of European community are contracting
states to both the lugano convention and Brussels convention.

Jurisdiction under the Traditional Rules

The traditional rules on jurisdiction are still applicable in case falling outside the
Brussels and Lugano Conventions and Tradition rules Before implementation of the
civil jurisdiction and judgment Act 1982 and 1991 these rules were applied in all
cases and their historical root make it appropriate to refer to them as the traditional
rules.
Jurisdiction under the tradional rules involves 3 major issues; Whether the English
courts has power to hear the case, whether the court will decline jurisdiction or stay
the proceedings and whether there is a limitation upon the exercise of jurisdiction.

5.0 CONCLUSION

It can be concluded that under jurisdiction clause the parties to the contract are the
one who determine the choice of forum. The court of forum may respect agreement
clause of the parties but depart from that agreement when it appears that deprive other
public policy

Qn: Are the procedures for recognition and reasons for setting aside the foreign
judgement applicable to foreign arbitral awards? Discuss.

OUTLINE

1.0 Introduction:

Meaning of the terms foreign judgment and foreign arbitral award

2.0 Main body

 Procedures used to recognize foreign judgment
 Reasons for setting aside a foreign judgment
 Procedures used to recognize foreign arbitral award
 Reasons for setting aside a foreign arbitral award

3.0 Conclusion

449
 Whether the procedures and reasons for setting a foreign judgment are
applicable to foreign arbitral award as well

INTRODUCTION

Foreign judgment has been defined under the Civil Procedure Code to mean a
judgment given by a foreign court. Blacks Law Dictionary 8th Edition defines Foreign
Judgment to mean a judgment rendered by a court of a state or country different from
that where the judgment or its effects is at issue. Foreign Arbitral award is an award
given by a foreign tribunal of which it is sought enforcement in the court of the
forum. Rationale behind recognition of foreign judgment and foreign arbitral award is
purposely for protecting the vested right vested on such decision and to avoid
injustice

In the Course of discussing this question, we will attempt to look on the law
governing foreign arbitration and foreign judgment in Tanzania and from time to time
we’ll be revisiting other jurisdiction mostly England

Procedure Used in Recognize a foreign Judgment

In 1933 English Parliament enacted an Act called Foreign Judgment (Reciprocal
Enforcement) Act of 1933. It constituted the recognition of judgment from different
state and those rendered in England. In two years later the colonial Government in
Tanganyika enacted a statute which its provisions are imparimaterial to that English
statute which is Cap 8 of revised laws of Tanganyika. It’s an Ordinance enacted to
make provision for recognition of foreign judgment which are called Reciprocal
Enforce…

The procedure for having foreign judgment enforced in Cap 8 of the revised Laws of
Tanganyika is that;

First the judgment creditor must seek registration of the foreign judgment. A
judgment, which is legible for registration, must be rendered in a country of
reciprocating states. These states are supposed to be classified by the minister of legal
affairs responsible in the country, which has such powers. Judgment given in a
superior court of any foreign country upon satisfaction substantial reciprocity of
treatment will be assured as respect the enforcement in that foreign country of
judgment given by superior court of Tanzania970

Such judgment of superior court of a foreign state to which Part I of Cap 8 971 is
judgment by superior court. That judgment must satisfy the following conditions;
1) If it is final and conclusive as between the parties thereof
2) There is a payment made under that judgment other than a sum payable in
respect of taxes or other charges of the alike nature or in respect of taxes or other
penalty.
3) It is given after the ministerial order extending the application part I of Cap 8 to
the country in which the judgment has originated.

970
Section 3 (1) of Cap 8
971
This part relates with Application and Registration of Foreign Judgment

450
A judgment Creditor under a judgment to which he seek to enforce under Cap 8 must
apply to the High Court at any time within six years after the date of the judgment, in
case there have been proceeding by way of the appeal against the judgment, after the
last judgment given in those proceedings, to have the judgment registered in the High
Court972.

An order giving leave to register has to be drawn up by, or on behalf of, the judgment
creditor and on such order it must state the period within which an application may be
made to set aside the registration and shall contain a notification that execution on the
judgment will not be issued until after the expiration of that period. 973
Notice in writing of the registration of a judgment must be served on the judgment
debtor. In such a notice, it shall state full particulars of the judgment registered and
the order for registration; name and address of the judgment creditor or of advocate or
agent on whom, and which, any summons issued by the judgment debtor may be
served; and shall state the right of the judgment debtor to set aside registration; and
time limit to set aside974.

Once the foreign judgment has been registered by the High Court it shall, for the
purposes of the execution, be of the same force and effect and the proceedings may be
taken on a registered judgment and the sum for which a judgment is registered shall
carry interest, and the registered court shall have the same control over the execution
of a registered judgment as if the judgment had been a judgment originally given in
the registering court and entered on the date registration`

Under common law the judgment creditor may seek recognition of foreign judgment
by either sue on the obligation created by the judgment, or he may plead the judgment
as res judicata in any proceedings which raise the same issue. The common law
doctrine is that a foreign judgment, though creating an obligation actionable in
England, cannot be enforced without institution of a fresh legal proceeding.
Nevertheless if a fresh action is brought in England on foreign judgment that action is
subject to the Civil Procedure Rules.
For instance, In Tanzania if the law is silence on situation where Cap 8 will not be
applicable in the enforcement of Foreign Judgment. In such situation Section 3 of the
Judicature and Application of Laws Act, Cap 453, give the High Court power to order
the registration and enforcement of the judgment in accordance with the common law.
It was stated in the case of WILLOW INVESTMENT V. NDUMBA NTUMBA
AND ANOTHER975 that, enforcement in common law is through the doctrine of
obligation
“
In accordance with that doctrine, where a foreign court of competent jurisdiction has
adjudicated a certain matter it becomes a legal obligation that is recognized and
enforceable in Tanganyika. The foreign judgment is strictly not enforceable as such,
but is to be regarded as creating a simple contract debt enforceable by an action of
debt. Once the judgment is proved, the burden would lie on the judgment debtor to

972
Section 4 (1) of Cap 8
973
Section 6 (3) of Cap 8 (Subsidiary Legislation)
974
Ibid, Section 8
975
[1996] TLR 377

451
show cause why he should not perform the obligation. This is consistent with s 11 of
the Civil Procedure Code.976

It follows that a judgment creditor who seeks to enforce a foreign judgment at

common law cannot do so by direct execution of the judgment. Enforcement must be
sought by bringing an action on the debt. The procedure obtaining in England would
serve as a model. The evidence would be on affidavit and the defendant should be
given proper opportunity of showing cause why the foreign judgment should not be
recognized or enforced. If a decree is ultimately passed in favour of the plaintiff, he
may proceed to execute it in Tanganyika in the manner provided by the Civil
Procedure Code.

Reasons for Setting aside a Foreign Judgment

In the course of making an application for registration of the foreign Judgment, the
law provides a right for the judgment debtor to make an application for setting aside
such registration if the Foreign judgment. The foreign judgment may be set aside if he
court is satisfied-

1. That the judgment is not a judgment to which Part I applies or was registered
in contravention of the foregoing Cap 8

2. That the courts of the country of the original court had no jurisdiction in the
circumstances of the case

3. That the judgment debtor, being the defendant in the proceedings in the
original court, did not (notwithstanding that process may have been duly
served on him in accordance with the law of the country of the original court)
receive notice of those proceedings in sufficient time to enable him to defend
the proceedings and did not appear

4. That the judgment was obtained by fraud;

5. That the enforcement of the judgment would be contrary to public policy in

the country of the registering court; or

6. That the rights under the judgment are not vested in the person by whom the
application for registration was made;

7. Also the judgment may be set aside if the registered court is satisfied that the
matter in dispute in the proceedings in the original court had previously to the
date of the judgment in the original court been the subject of a final and
conclusive judgment by a court having jurisdiction in the matter.

Procedure Used for Recognize a Foreign Arbitral Award

A foreign arbitral award is on a similar footing to a foreign judgment and therefore it
may be enforced in common law in variety of ways. 977 Statutory provisions are also

976
ibid, p. 380
977
Cheshire and North’s, Private International law, 13th Ed. P. 520

452
made for the enforcement of the foreign arbitral award.978 It is crucial to not that an
action to enforce an arbitration award is an independent cause of action, therefore, the
party who wish to enforce a foreign arbitral award is required to institute a suit for the
enforcement of the foreign arbitral award.979

The limitation Act 1980 provides that, an action to enforce an award shall not be
brought after the expiration of six years from the date in which the cause of action
accrued. This provision is provided under section 7 of the said Act. Time runs not
from the date of the original breach of contract, which has been the subject f the
arbitration, but from the date of the failure to honour the arbitral award. Therefore,
with due regards to this, the institution of the case which is mainly for the registering
of foreign award, the purpose of it is to make that arbitral award enforceable at that
court of the forum as any other judgment delivered by it.

After the institution of the suit, the parties are submitted to the arbitration. That
submission must be a valid one and the validity to such agreement is determined by
the proper law of the arbitration agreement. This was held in the case of DALMIA
DAILY INDUSTRIES LTD V. NATIONAL BANK OF PAKISTAN.980 The
proper law for the arbitration agreement is usually the same as the law that govern the
rights and duties of the parties. Furthermore, in order for the award to be recognized
by the court of the forum, it must be, like foreign judgment, that is final and
conclusive.981 On top of its finality, it must also be valid by the law of the country in
which it is made.

In the Arbitration Act982the person wishing to enforce the foreign arbitral award must
do so either by petition or by action in the High Court, this is in accordance with
section 29 (1) of the Arbitration Act. Procedure for application for recognition and
enforcement of foreign arbitral award is the same as that used for recognition and
enforcement of foreign judgment. Recognition and enforcement by way of action is
an action on the award and not on either the contract to which the award gives
effect983.

A foreign action on the award at arbitral award which does not fall within the various
statutory provisions for recognition and enforcement based on international
conventions may be enforced either common law984or under Section 66 of the
Arbitration Act 1996 of England it provides that, with the leave of the court, an award
may be enforced in the same manner as a judgment or order or order of the court to
the same effect.
It must be noted that in case the Arbitration Act does not applies common law crop
up.

In addition, the person seeking recognition of an award in the High Court must
produce original award or certified copy and the award must be in accordance with

978
Foreign Judgments (Reciprocal Enforcement) Act, Cap 8 of 1945
979
Agromet Motoimport v. Maulden Engineering Co. (Beds) Ltd [1985] 2 All ER 436
980
[1978] 2 LLOYD’S REP 223
981
Ibid
982
[CAP 15 R.E. 2002]
983
Cheshire (1999) Private International Law, 13th Ed, p. 522
984
Ibid

453
thw law in which it was made and must produce evidence that an award has become
final and conclusive.

Reasons for Setting aside a Foreign Award

There are however a number of grounds on which the defendant may resist
recognition or enforcement.985 The court has discretion to refuse enforcement if the
defendant proves the following:
a) That a party to the arbitration agreement was under some incapacity. The
question of capacity is to be governed by a law applicable to that party.
Furthermore the enforcement of the award can be refused whichever party to
the arbitration agreement lacked capacity.
b) That the arbitration agreement was invalid under the law to which the parties
subjected it, for instance, the law chosen by the parties. Failing any indication
of such law, validity is to be determined by the law of the country where the
award was made. This was held in the case of DALLAS V. BANK
MELLAT.986
c) That the defendant was not given proper notice of the appointment of the
arbitrator or of the arbitration proceeding or was otherwise unable to present
his case as it was held in the case of IRAN AIRCRAFT INDUSTRIES V.
HAVCO CORPORATION987
d) That the award deals with a difference not contemplated by or not falling with
the terms of submission or contains matters beyond the scope of submission to
arbitration.988
e) That the composition of the arbitral tribunal or the arbitral procedure was not
in accordance with the arbitral procedure989 or failing such agreement with the
law of the country where the arbitration took place. It can be assumed for this
defence that the parties are free to choose the procedural law to govern the
arbitration and that, in the absence of choice the curial law will be that of the
country where the arbitration took place.
f) That the award has not yet become binding on the parties or has been set aside
or suspended by a competent authority of the country in which or under the
law of which it was made.990
There is further discretion to refuse recognition or enforcement of the award
which may be exercised by the court either on the application of a party to the
arbitration agreement or by the court on its own motion, for instance, if the
award is in respect of the matter which is not capable of settlement by
arbitration or if it would be contrary to public policy to recognize or enforce
the award such as contract which are in disputably illegal as it was in the case
of SOLEIMANY V. SOLEIMANY991 when export of carpets out of Iran was
viewed by English court as contrary to public policy.

985
The Arbitration Act of 1996 of England (which is impari materia with the Tanzania Arbitration Act
[CAP 15 R.E. 2002] )
986
[1986] QB 441
987
[1992] F2D 980
988
Subject to the proviso in section 103 (4) of the 1996 Act, an award containing decisions on matters
not submitted to arbitration may be recognized or enforced to the extent that it contains decision on
separate matters which were so submitted as it was in the case of AGROMET MOTOIMPORT V.
MAULDEM ENGENEERING COMPANY LTD [1985] 1 WLR 762
989
China Agribusiness Development Corporation v. Balli Trading [1998] 2 Lloyd Rep 76
990
See Rosseelnv v. Oriental Commercial and Shipping co ltd [1990] 3 All ER 545
991
[1998] 3 WLR 811 at 826

454
Whether procedures for recognition and reasons for setting aside foreign
Judgment are applicable to Foreign arbitral award.

As it has been said earlier that a foreign arbitral award is on a similar footing to a
foreign judgment because the judgments are now regarded to include arbitration
awards which has been turned into judgment. The same is provided for in S. 17 (1)
which states
“ an award on a submission on been filed in the court in accordance with this
Act
shall, unless the court remits it to the re-consideration of the arbitrators or
umpire or set it aside, been enforceable as if it were a decree of the
court”.992

So, from the above analysis, we are the of considerable opinion that, the procedures
for recognitions and reasons for setting aside foreign judgment are the same as those
applied in foreign arbitral award as they have been portrayed above.

Qn:

Provide critical discussion as to what does the court do when the appropriate
choice of law rule directs it to apply foreign law but the substance of the foreign
law has not been proved in evidence?

Introduction.

For the purposes of private International law the expression “foreign system of law”
means a distinctive legal system prevailing in a territory other than that in which the
court functions. It therefore includes, not merely the law existing in a state under a
foreign political sovereignty, but also the law prevailing in a subdivision of the
political state of which the forum is part. Thus for the purpose of private International
law and so far as English courts are concerned, the law of Scotland, of the Channel
Islands, of Northern Ireland, or of one of the member countries of the Common
Wealth or European Community is just as much a foreign law as the law of Japan or
Brazil.

A question of fact.

The established rule is that knowledge of foreign law, even of the law obtaining in
some other party of the common law world, is not to be imputed to an English
judge.993
Even though the foreign law is notorious, it has been said that the court can not take
judicial notice of it.994 Unless the foreign law with which a case may be connected is
pleaded by the party relying thereon, then it is assumed that it is the same as English
law.995

992
The Arbitration Act [Cap 15 R.E 2002]
993
Nelson V Bridport (1846 ) 8 Beav 547
994
El Ajou V Dollar land Holdings Plc ( 1993 ) 3 All ER 717 at 736
995
Macmillan Inc V Bishopsgate Investment Trust Plc (1998 )

455
The onus of proving that it is different and of proving what it is, lies on the party who
pleads the difference.996 If there no such plea, or if the difference is not satisfactorily
proved, the court must give a decision according to English law, even though the case
may be connected solely with some foreign country, 997 and the law of that foreign
country is applicable according to English choice of law rules.

Foreign law is therefore, treated as a question of fact but it is “a question of fact of a

peculiar kind”.998 To describe it as one of fact is no doubt opposite; in the sense that
the applicable law must be ascertained according to the evidence of witnesses, yet
there can be no doubt that what is involved is at bottom a question of law. This has
been recognized by the courts.

CHOICE OF LAW
Courts faced with a choice of law issue have a two-stage process:

1. the court will apply the law of the forum (lex fori) to all procedural matters
(including, self-evidently, the choice of law rules); and
2. it counts the factors that connect or link the legal issues to the laws of
potentially relevant states and applies the laws that have the greatest
connection, e.g. the law of nationality (lex patriae) or domicile (lex domicilii)
will define legal status and capacity, the law of the state in which land is
situated (lex situs) will be applied to determine all questions of title, the law of
the place where a transaction physically takes place or of the occurrence that
gave rise to the litigation (lex loci actus) will often be the controlling law
selected when the matter is substantive, but the proper law has become a more
common choice.

If the English court decides that it possesses jurisdiction, then a further question, as to
the choice of law, must be considered; for instance which system of law, English or
foreign, must govern the case? The action before the English court, for instance, may
concern a contract made or a tort committed abroad or the validity of a will made by a
person who died domiciled abroad. In each case that part of English law which
consists of private International law directs what legal system shall apply to the case.
English private international law, for instance, requires that the movable property of a
British subject who dies intestate domiciled in Italy shall be distributed according to
the Italian law. These rules for the choice of law then indicate the particular legal
system by reference to which a solution of the dispute must be reached.

HOW FOREIGN LAW IS PROVED.

Generally, when the court is to apply a foreign law, it must be proved by foreign law
experts. It cannot merely be pleaded, as the court has no expertise in the laws of
foreign countries nor in how they might be applied in a foreign court. Such foreign
law may be considered no more than evidence, rather than law because of the issue of
sovereignty. If the local court is actually giving extraterritorial effect to a foreign law,
it is less than sovereign and so acting in a way that is potentially unconstitutional. The
theoretical responses to this issue are:
996
The King of spain V Machado ( 1827 )4 Russ 225 at 239
997
Warner Bros V Nelson (1937 )1 KB 209
998
Parkasho V Singh (1968 ) p 233 at 250

456
  (a) that each court has an inherent jurisdiction to apply the laws of another
country where it is necessary to achieving a just outcome; or
 (b) that the local court creates a right in its own laws to match that available
under the foreign law. This explanation is sustainable because, even in states
which apply a system of binding legal precedents, any precedent emerging
from a conflicts case can only apply to future conflicts cases. There will be no
ratio decidendi that binds future litigants in entirely local cases.

It is clear that the relevant foreign law in some particular matter must be proved, like
other matters of which knowledge is imputed to the judge,” by appropriate evidence,
for instance by properly qualified witnesses”.999 Unless both agree to leave the
investigation to the judge and to dispense with the aid of witnesses.
The way of proof by way of expert witness can involve a vast amount of oral and
written evidence. Foreign law can not be proved, for instance by citing a previous
decision of an English court in which the same foreign rule was in issue or by merely
presenting the judge with the text of the foreign law and leaving him to draw his own
conclusions, or by referring to a decision in which a court of the foreign country has
stated the meaning and effect of the law in question.1000

A fortiori can not be proved by referring to decision as to the law of the foreign
country in a question given in the courts of some other foreign country,1001 nor can it
be proved by the assertion of an opinion as to the effect of the foreign law without
reference to the relevant authorities.1002 However, the parts of the United Kingdom
form an exception to these rules in cases coming before the House of Lords as the
ultimate appellate tribunal in civil matters. Thus Scottish Law must be proved by
evidence in the courts inferior to the House of Lords, but in the House of Lords itself,
which is the common forum of both England and Scotland, it is a matter of which
their Lordships have judicial knowledge.1003

However, proof of foreign law including Scots and Northern Irish law, is rendered
easier by section 4(2) of the Civil Evidence Act. It provides that, when any question
of foreign law has been determined in civil or criminal proceedings in the high court,
the crown court, certain other courts or in appeals there from, or in proceedings before
the judicial committee of the privy council on appeal from courts abroad 1004, any
finding made or decision given in such proceedings shall, if reported in citable
form,1005 be admissible in later civil proceedings as evidence of the foreign law1006. In
deed, the foreign law shall be taken to be in accordance with such finding or decision
unless the contrary is proved, provided it does not conflict with another finding of
foreign law adduced in the same proceedings.

999
Nelson V Bridport (1845 ) 8 Beav 527 at 536
1000
Beatty V Beatty (!924) 1 KB 807 at 814 – 815; Subject to section 4 (2) of the Civil Evidence Act
1972
1001
Callwood V Callwood (1960) A 659.
1002
Mount Cook V Northland ltd V Swedish Motors ltd (1986) 1NZLR 720
1003
Elliot V Joicey (1935)at 236
1004
S.4 (4)
1005
S. 4 (5)
1006
Phoenix Marine Inc V China Ocean Shipping Co (1999) CLC478

457
The English courts have not adopted the practice in civil law systems according to
which a government may be requested to give an official statement of the law on
some particular matter.

WITNESSES WHO CAN PROVE FOREIGN LAW

It is obvious that no witness can speak to a question of law as a fact and that all he can
do is to express his opinion. The rule is, therefore that he must be an expert. The
question as to who is a sufficient expert in this matter has no been satisfactorily
resolved by the English decisions.
Though no doubt the court has discretion in the matter, the general principle has been
that no person is a competent witness unless he is a practicing lawyer in the particular
legal system in question, or unless he occupies a position or follows a calling in which
he must necessarily acquire a practical working knowledge of the foreign law.
In other words practical experience is a sufficient qualification. Thus, in accordance
with this principle:
A roman catholic Bishop was allowed to testify to the matrimonial law of Rome,
since knowledge of its provisions was essential to the performance of his official
duties.

A secretary to the Parisian embassy was allowed to depose to the law of Persia; on it
being shown that there where then no professional lawyers in that country, but all
diplomatic officials had to be thoroughly versed in the law.
But although it has been said that the study alone is not sufficient qualification, the
courts did not consistently observe the requirement of practical experience. Thus the
Reader in Roman- Dutch law to the council of legal education, who had made a
special study of that law for purpose of his lectures, was admitted to testify to the
Rhodesian law1007

The evidence of the expert may exceptionally be given by affidavit, but it is usually
given orally, and he is of course open to cross examination. Although he must state
his opinion as based on his knowledge or practical experience of the foreign law, he
may refer to codes, decisions or treaties for the purpose of refreshing his memory, but
in such an event the court is at liberty to examine the law or passage in question in
order to arrive at its correct meaning.

Evidence to foreign law may be given by a person who is qualified to do so on

account of his knowledge and experience irrespective of whether he has acted or is
entitled to act as a legal practitioner there.1008

What does the court do when the appropriate choice of law rule directs it to
apply foreign law but the substance of the foreign law has not been proved in
evidence?
In some countries, there is occasional evidence of parochialism1009 when courts have
determined that if the foreign law cannot be proved to a "satisfactory standard", then
1007
Brailey V Rhodesia Consolidated Ltd (1910) 2Ch 95
1008
section 4(1) of the civil Evidence Act 1972
1009
Connected with a church: only concerned with small issues that happen in your local area and not
interested in more important things…the parochialism of a small community.

458
local law may be applied. In the United Kingdom, in the absence of evidence being
led, the foreign law is presumed to be the same as the lex fori. Similarly, judges might
assume in default of express evidence to the contrary that the place where the cause of
action arose would provide certain basic protections, e.g. that the foreign court would
provide a remedy to someone who was injured due to the negligence of another.
Finally, some American courts have held that local law will be applied if the injury
occurred in an "uncivilized place that has no law or legal system." See Walton v.
Arabian American Oil Co., 233 F.2d 541 (2d Cir. 1956).
If the case has been submitted to arbitration rather than a national court, say because
of a forum selection clause, an arbitrator may decide not to apply local mandatory
policies in the face of a choice of law by the parties if this would defeat their
commercial objectives. However, the arbitral award may be challenged in the country
where it was made or where enforcement is sought by one of the parties on the ground
that the relevant ordre public should have been applied. If the lex loci arbitri has
been ignored, but there was no real and substantial connection between the place of
arbitration and the agreement made by the parties, a court in which enforcement is
sought may well accept the tribunal's decision. But if the appeal is to the courts in the
state where the arbitration was held, the judge cannot ignore the mandatory provisions
of the lex fori.
Conclusion
From the discussion of the question we have seen that in order to prove the evidence
which is given by the expert witness in private international law, the expert witness
must be a practising lawyer, but this position later changed, when the court came to
recognise the evidence which is given by the person who is having experience on the
particular matter or field of specialization in question and this person does not need to
be a lawyer. Furthermore, under the private international law when there is absence of
evidence the forign law is presumed to be the same as the law of the forum.

459
4.0 BIBLIOGRAPHY.

BOOKS:

Cheshire, G.C, (1935), Private International Law, Oxford at the Clarendon Press,
London.

North, M.P, (1993) Essays In Private International Law, Oxford at the Clarendon
Press, London.

North, M.P and Fawcett, J.J, (1999), Cheshire and North’s Private International
Law, 13th Ed, Butterworth, London.

460
INTERNATIONAL HUMANITARIAN LAW QUESTIONS AND ANSWERS

Qn:
Discuss the extent to which Tanzania has fulfilled her obligations under IHL
instruments.

TABLE OF CONTENTS

1.0: INTRODUCTION
1.1: Meaning of International Humanitarian Law.
1.2: The purposes of the International Humanitarian Law.
1.3: The Laws governing International Humanitarian Law.

2.0: MAIN BODY.

2.1: Obligations of states under International Humanitarian Law.
2.2: How Tanzania has fulfilled her obligations under International
Humanitarian
Law
2.3: Weaknesses on Tanzania in fulfilling her obligations.

3.0: CONCLUSION.

REFERENCE:

1.0: INTRODUCTION.

1.1: Meaning of International Humanitarian Law.

International Humanitarian law is that law which is generally a branch of public

international law which simply deals with armed conflict. Traditionally, International
law was the law that regulated only such relationship that existed among states and in
fact these were the main subjects of International law. With the development of
International law as to encompass now individuals as one of the subjects of it and
with the development of human right law, then rights and obligations of individuals
under the international law has been of the paramount importance. And therefore,
international law finds its role to play in armed conflict to ensure that the parties to the
conflict do not act in contravention of the laid down principles of war practices.

Now since the world is full of internal and international hostilities, there was a need to
have such special standards to regulate and provide for humanitarian protection to all
such persons who are the victims of armed hostilities. And even where the conflict is
absolutely internal, yet the experience has shown that even in such cases the
international community is of that concern that humanitarian protection is highly
safeguarded1010.

1.2: The purposes of the International Humanitarian Law.

1010
For instance in the case of internal conflict in Rwanda in the year 1994, the mass killings that took
place in Rwanda raised a question as to where the International Community was in making sure that
what happening was prevented before.

461
It follows therefore that, International Humanitarian law is, among others, intended to
provide protection to victims of armed conflicts such as the wounded soldiers and
hors de combat, and to offer protection to civilian; to limit the means and methods of
wagging war for instance by prohibiting the use of certain weapons; to limit the abuse
of force and power by State Government officials during mass violence in individual
states; to limit misuse of military capacity or ability by gun rebel forces; to provide
criminal prosecution to those interfering with civilians means of survival during
armed hostilities; I.H.L performs the above functions to various category of person,
both in international and non-international armed conflicts.

1.3: The Laws governing International Humanitarian Law.

International Humanitarian law is governed by three main laws and those are the
Geneva Conventions; The Hague law; and The New York Law. The New York law is
made up of the two protocols namely Additional Protocol I and II of the year 1977.
The Additional Protocol I is concerned with the protection of victims of International
armed conflicts and the Additional Protocol II is concerned with the protection of the
victims of the non-international armed conflict. All these are additional protocols to
the Geneva Convention of 1949. However these instruments are only the major ones
since IHL also has connection with other International instruments depending on the
purpose of each instrument.

2.0: MAIN BODY

2.1: Obligations of states under International Humanitarian Law.

States form one of the subjects of IHL and therefore the law confers upon states some
obligations to ensure that not only the role of IHL becomes viable but also effective
on the International Community at large. Such obligations can be seen in various
International instruments and briefly these obligations include;

Obligation to act in accordance to the International Treaties or conventions to which

states are the contracting parties. States are expected to act in adherence of the
principle of ‘Pacta Sunt Servanda’, that is, to obey in good faith, which is provided
under the Vienna Convention on Law of Treaties1011. Once a party has expressed its
willingness to be bound by a particular International Instrument, then it has obligation
to follow the standards provided therein.

Under IHL, basically there are two main obligations that have to be followed in the
enforcement of IHL. These are obligations that are taken prior to the conflict, that is,
during peaceful time; and those taken during event of armed conflict. In brief
obligations prior to the conflict include; enacting appropriate legislation to make IHL
enforceable in a municipal legal system1012; to disseminate texts or language or
message of IHL to the Civilians, military personnel and so on 1013; and to have legal
advisers within armed forces who have studied IHL.

1011
See Article 11 to Article 18 of the Convention.
1012
See this under Article 49 of The Geneva Convention For The Amelioration of The Condition of
The Wounded and Sick in Armed Forces in The Field of August 12, 1949
1013
Article 47 of the Geneva Convention, Ibid,

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Obligations in event of armed conflict include; enforcement of discipline in military
camps; to provide duties to commanders; to appoint a protecting power; to deal with
persons violating IHL; to comply with resolutions of UN Security Council; and
generally to enforce rules of IHL.

2.2: How Tanzania has fulfilled her obligations under International

Humanitarian
Law.
The question requires a discussion on how Tanzania has fulfilled her obligation under
IHL instruments. There are several indicators of compliance in Tanzania in showing
that the country has complied to some extent with her obligations under IHL. Those
indicators include;

Taking part in UN Security Council’s Resolutions for the preservation of World peace
and condemning violations of humanitarian law. One example is the UN Security
Council’s Resolution which referred the situation in Darfur to the Prosecutor of the
International Criminal Court1014. That was in compliance with Chapter VII of the
United Nations Charter which provide for actions to be taken with respect to threats to
the peace, breaches of the peace, and acts of aggression. Involvement of Tanzania in
that resolution shows how the country complies with IHL Instruments.

Again, enforcement of IHL depends also on the effectiveness of its organs of

enforcement and the place where such organs performs their duties. Tanzania is
hosting the headquarters of the International Criminal Tribunal for Rwanda (ICTR).
This Tribunal has been established to prosecute persons responsible for Genocide and
other serious violations of International Humanitarian Law committed in the territory
of Rwanda. It was established in respect of the provisions under Chapter VII of the
UN charter. The hosting of that court is one way of showing how Tanzania complies
with International Humanitarian Law instruments.

Further Tanzania has taken part in peacekeeping operations under the Umbrella of the
United Nations. This includes sending of her military troops in Sierra Leone and
Congo DRC to ensure that there is constant maintenance of peace and harmony.
Article 1 of the UN Charter provides that there will be a duty to maintain international
peace and security, and that there is a duty to take effective collective measures for
the prevention and removal of threats to the peace. Participation of Tanzania in such
operations shows that the country is ready to fulfill her obligations under IHL
instruments even by extending protection to the citizens of other countries in event of
armed conflict.

Tanzania also has maintained a good record over peacekeeping operations in the sense
that, there is nowhere, where military troops from Tanzania went in the exercise of
peacekeeping task, where it has poor record of discipline on part of Tanzania troops.
There is no record of that and this is proved to the fact that the UN has even requested

1014
Resolution 1593 (31 March, 2005) Adopted by Vote of 11(Tanzania inclusive) in
Favour to None Against, with 4 Abstentions (Algeria, Brazil, China, United States)

463
Tanzania to send military troops to Darfur Sudan to prevent serious violation of IHL
in that region1015.

Tanzania has allowed various International Organizations to operate. These include

the UNHCR, and the International Committee of the Red Cross organizations1016.
These organizations take part in provisions of humanitarian aids to, among others,
refugees from Rwanda, Burundi and Congo DRC whose camps are in western part of
Tanzania. To allow these organizations to operate is to enable them to fulfill their
roles in accordance to the Common Article 3 to the Geneva Conventions of 19491017.

Again Tanzania has been accommodating refugees from various countries in great
lakes for more than a decade now1018. Such refugees run into Tanzania due to peaceful
political situation which this country has enjoyed for several years now. But a warm
welcome for such refugees is in compliance with the IHL instruments in as far as
protection of civilian population at the event of armed conflict is concerned1019.

Tanzania has fulfilled her obligations under the Convention on Biological weapons of
19721020 which require states to prevent manufacturing of such weapons so as not to
endanger the world peace. Tanzania has no such weapons and has not expressed her
intention to manufacture such weapons, where by so doing is to comply with IHL
which require states to take measures of preventing the world from such threats of
peace.

Enactment of the Prevention of Terrorism Act, 20021021 was a response to the UN

Security Council Resolution of 20011022 which set out some rules on combating
terrorism in the world. For Tanzania, that was also a response towards the
requirements of Article 4(2)(d) of the Additional Protocol II of 1977 which prohibit
acts of terrorism at any time and at any place.

2.3: Weaknesses on Tanzania in fulfilling her obligations.

However, Tanzania has not been that much effective in some other aspects of her
obligations as per IHL instruments. The country is criticized for lack of a consolidated
piece of legislation to enforce IHL just as per requirements of Article 49 of The
Geneva Convention Isupra. The failure to have such legal instruments makes it difficult

1015
Reference is made from the request put by the Deputy UN Secretary General to the President of
United Republic of Tanzania when the latter paid visit to the headquarters of UN in New-york, U.S.A
this Month.
1016
In Tanzania there is Tanzania Red Cross Society which is a branch of ICRC
1017
See also Article 18 of the Additional Protocol II of 1977.
1018
It reaches a certain time when one of the Refugee camps in Kagera region-Tanzania was ranked the
largest refugee camp in the world.
1019
See Part IV of the additional Protocol II of 1977.
1020
This Convention has been ratified by Tanzania on June 25th , 1998
1021
Act No. 13 of 2002
1022
Resolution 1373 0f 2001

464
to enforce IHL1023 in our municipal legal system despite being one of the contracting
parties to various IHL instruments1024.

The Hague Convention of 19541025obliges the States Parties to take, within the
framework of their criminal jurisdiction, all the steps needed to prosecute and impose
penal or disciplinary sanctions on persons of whatever nationality who have
committed or ordered the commission of a breach of the Convention as per Article 28
of the Convention. This obligation takes in violations committed in situations of
international armed conflict and, as far as provisions related to respect of cultural
property are concerned, also when perpetrated during a non international armed
conflict as per Article 19 of the Convention. Lack of a law in Tanzania to put such
position of IHL instruments makes that position ineffective in Tanzania.

Further the jurisdiction of the ICC is complementary to that of States; it may be

exercised solely when a State is unable genuinely to carry out the investigation or
prosecution of alleged criminals under its jurisdiction, or is unwilling to do so as per
Article 17 of the Statute of the ICC. If they wish to avail themselves of their own
courts' jurisdiction, the States Parties must have suitable legislation enabling them to
bring these persons to trial in accordance with the requirements of the Statute. That
cannot be applicable in Tanzania because of lack of such legislation.

Again, Article 47 of the Geneva Convention Isupra requires that High contracting
parties have duty to disseminate the text of that convention in time of peace and in
time of war, that include the study to military and civilian population on principles of
the said convention1026. It is evident that the said task in Tanzania is yet to be
effectively fulfilled in the sense that very few citizens know about International
Humanitarian Law. This is to say, in event of war in Tanzania, anything can happen in
ignorance of the principles under IHL.

Despite some workshops which have been conducted to educate some leaders on
IHL1027, the fact is that very few Tanzanians are that much knowledgeable on IHL and
know its principles. It is therefore to say, Tanzania has to play more role in fulfilling
her obligations under IHL. What has been done till this moment is recommendable,
but we are of the opinion that something more has to be done.

1023
See the statement of the Information Coordinator of ICRC Mr. Leonard Blazeby who stated that
crimes committed against IHL face difficulties to be enforced using our domestic laws in Tanzania
since there is no principal legislation to carter for that law in Tanzania. This statement was made on the
occasion to mark The World ICRC day on 8th May, 2006.
1024
The country ratified the four Geneva Conventions on December 12, 1962, The Hague Convention
of 1954 and the Additional Protocol I&II were ratified on February 15th , 1983. Despite such
ratification, no support of a piece of legislation for enforcement in Tanzania
1025
The 1954 Hague Convention for the protection of cultural property in the event of armed conflict
1026
See also Article 144 of the Geneva Convention IV
1027
One of such workshops is that conducted by ICRC in Collaboration with the Government of United
Republic of Tanzania on 11th May, 2006 and which involved representatives from various private and
public institutions, among them were from the Attorney General’s Chamber, Prime Minster’s Office,
University of Dar es Salaam and so on.

465
3.0: CONCLUSION
We are of the view that Tanzania has to a certain extent fulfilled her obligations under
IHL but also in the other hand has failed to meet some of the obligations as herein
stated. We argue the Government to speed up the process of complying with all such
obligations under IHL so as to meet the standards required of enforcing IHL in
Tanzania.

QUESTION:
Explain various protections offered by International Humanitarian Law instruments to
civilians during non-international armed conflict.

TABLE OF CONTENTS.

1.0: INTRODUCTION
1.1: Meaning of International Humanitarian Law.
1.2: The purposes of the International Humanitarian Law.
1.3: The Laws governing International Humanitarian Law.

2.0: MAIN BODY.

2.1: Persons protected by the International Humanitarian Law.
2.2: Protection of Civilian Population in a Non-international conflict.
2.3: The International Courts Attitudes on the protection of Civil Population
on
non-international conflict.

3.0: CONCLUSION.

REFERENCE:
1.0: INTRODUCTION.

1.1: Meaning of International Humanitarian Law.

International Humanitarian law is that law which is generally a branch of public

international law which simply deals with armed conflict. Traditionally, International
law was the law that regulated only such relationship that existed among states and in
fact these were the main subjects of International law. With the development of
International law as to encompass now individuals as one of the subjects of it and
with the development of human right law, then rights and obligations of individuals
under the international law has been of the paramount importance. And therefore,
international law finds its role to play in armed conflict to ensure that the parties to the
conflict do not act in contravention of the laid down principles of war practices.

Now since the world is full of internal and international hostilities, there was a need to
have such special standards to regulate and provide for humanitarian protection to all
such persons who are the victims of armed hostilities. And even where the conflict is
absolutely internal, yet the experience has shown that even in such cases the

466
international community is of that concern that humanitarian protection is highly
safeguarded1028.

1.2: The purposes of the International Humanitarian Law.

It follows therefore that, International Humanitarian law is, among others, intended to
protect the victims of arms; to provide protection to innocent civilians; to limit the
means and methods of waging the war; limiting the abuse of force and power by state
government officials in individual states; limit the misuse of military ability by guns
or rebel forces; and provide for criminal prosecution to those interfering with civilians
means of survivor during hostilities.

1.3: The Laws governing International Humanitarian Law.

International Humanitarian law is governed by three main laws and those are the
Geneva Conventions; The Hague law; and The New York Law. All these have their
roles to play but this paper will confine itself on the last, which is The New York law
for the purpose of answering the question at hand.

The New York law is made up of the two protocols namely Additional Protocol I and
II of the year 1977. The Additional Protocol I is concerned with the protection of
victims of International armed conflicts and the Additional Protocol II is concerned
with the protection of the victims of the non-international armed conflict. All these are
additional protocols to the Geneva Convention of 1949.

2.0: MAIN BODY.

2.1: Persons protected under the International Humanitarian Law.

There are number of persons protected under the International Humanitarian Law.
These include the wounded; the sick persons; shipwrecked members; hors de combat;
civilians; legal and medical personnel; and means of livelihood. These categories of
person are entitled to respect for their lives and their physical and mental integrity.
They also enjoy legal guarantees. They must be protected and treated humanely in all
circumstances, with no adverse distinction. Generally, International Humanitarian law
safeguards the safety of those persons at the time of armed hostilities.

2.2: Protection of Civilians under International Humanitarian law in non-

international armed conflict.

It is the general principle of the International Law that states have no right to
intervene in the internal or domestic affairs of another state 1029. The Charter of the
United Nations reads as follows;

“Nothing contained in the present Charter shall authorize the United Nations
to intervene in matters which are essentially within the domestic jurisdiction

1028
For instance in the case of internal conflict in Rwanda in the year 1994, the mass killings that took
place in Rwanda raised a question as to where the International Community was in making sure that
what happening was prevented before.
1029
This is as per Article 2(7) of the Charter of the United Nations

467
 of any state or shall require the members to submit such matters to settlement
under the present Charter; but this principle shall not prejudice the application
of enforcement measures under Chapter VII”

That means, unless where there is threats to the peace, breaches of peace, and acts of
aggression, no state is allowed to intervene in others domestic affairs. In fact,
intervention of the International Community on the domestic affairs of the state which
is under internal conflict is part of such measures falling under Chapter VII of the
United Nations Charter1030. Such internal conflict is what is generally termed as non-
international conflict.

According to Green, L.C1031, a non-international conflict is one in which the

governmental authorities of a state are opposed by groups within t hat state seeking to
overthrow those authorities by force of arms. Traditionally, such conflict was
regarded as one falling outside the four corners of the International Law since it was
regarded as part of the independence of the sovereign state.

On the other hand, non-international conflicts are defined under the additional
Protocol II1032 as;
“All armed conflict which are not covered by Article I of Protocol I and which
take place in the territory of a High Contracting Party between its armed
forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory
as to enable them to carry out sustained and concerted military operations and
to implement this Protocol. The Protocol shall not apply to situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of similar nature, as not being armed conflicts”

In non-international armed conflict, as those of international character, civilians are to

be protected against such dangers arising out of the hostilities. No attack can be
entertained as against the civilian population or individual civilians. During the
Bosnian war in 1990’s Muslim population seems to be the object of direct attack from
the Serbian guerrilla fighters. It is forbidden to threaten or act violently or terrorize
civilian population.

The protection of civilians in non-international armed conflict is provided under the

common article 3 to the Geneva Conventions of 1949 and the additional Protocol II of
1977. It is said that, other than this Common Article 3, the 1949 Geneva Conventions
have no relevance to a non-international conflict1033. Together with this there is
Protocol II of 1977 additional to the Geneva Conventions of 1949 which according to
Green, L.C1034 it is the first and only international agreement exclusively regulating
the conduct of the parties in a non-international conflict.

1030
Moir, L(2002) The Law of Internal Armed Conflict, at p.2. The author says “…international law
protects those not involved in hostilities in the context of international armed conflict, and there is no
reason why this should not also be the case merely because the conflict is characterized as
internal”(Emphasis is mine)
1031
Green, L.C, The Contemporary law of Armed conflict, 2nd edn at p.317.
1032
Article I of the additional Protocol II.
1033
Ibid, at p.318.
1034
Ibid, at p.61

468
Article 3 common to the four Conventions applies to all armed conflicts of a non-
international character and occurring in the territory of one of the Powers parties to
the Convention. In such a case, persons taking no active part in the hostilities,
including members of armed forces who have laid down their arms and those who are
hors de combat for any other reason will in all circumstances be treated humanely
without any adverse distinction. The common article 3 states what constitutes a
minimum of humane treatment.

The additional Protocol II of 1977 provide for the protection of wounded, sick and
shipwrecked; Protection of the civilian population; Protection of certain objects; and
Humane treatment.

The chief interest of Protocol II lies in the extension to non-international armed

conflicts of the principal rules of Protocol I relating to the protection of civilian
populations against the effects of hostilities. As per Article 13(1)&(3) of the
additional Protocol II, the civilian population must be protected to the greatest
possible extent from the effects of internal armed conflict, unless and for such period
as they themselves play a direct part in hostilities. In that sense protecting innocent
people from danger of attack in hostilities.

The Protocol thus declares that neither the civilian population as such, nor individual
civilians may be the object of attacks; moreover, acts of terrorism against them are
prohibited. Civilians benefit from this protection as long as they do not take a direct
part in hostilities. As per Article 13 of the additional Protocol II, Starvation of
civilians is a prohibited method of combat. Therefore, if the governmental forces were
compelled to withdraw, they are not supposed to take with them the stocks of food for
their supporters if by so doing will be putting in danger the civilian population that
remains in an evacuated area.

It is equally forbidden to attack, destroy, remove or render unusable objects

indispensable to civilian survival, such as foodstuffs, agricultural areas, drinking-
water installations, irrigation works and the like, nor may a threat to do anything that
would have this effect be used as a measure of pressure against the civilian population
which supports the rebels1035.

Due to the technological developments and the dangers associated with such
developments, the protection to civilians goes to the extent that works or installations
containing dangerous forces, that is to say dams, dykes and nuclear electrical
generating stations, must not be attacked, even if they are military objectives if such
attacks will result into the release of dangerous forces and severe losses among the
civilian population. This is as per Article 15 of the additional Protocol II.

Furthermore, the protection of civilians goes to the extent that it is forbidden as per
Article 17 of the additional Protocol II to displace the civilian population for the
reasons connected with the conflict. The displacement of the civilian population may
only be ordered if its safety or imperative military reasons require it, and only after all
1035
In the former Yugoslavia, houses and entire villages were destroyed with the sole intention of
making it impossible for their residents to return even though agreements were drawn up to permit such
return, see Green, L.C, Ibid at p.325.

469
possible measures have been taken to ensure it will be received under satisfactory
conditions. Therefore it is necessary that the authorities responsible to provide where
possible for their shelter, health, hygiene, safety and nutrition1036.

Again, Article 18 of the additional Protocol II recognizes that in the time of internal
strife, the combination of several consequences of the war and other natural disasters
may render a catastrophic hardship in life for civilian population and therefore it
allows the role of neutral humanitarian agencies to play so as to meet such crucial
need of protecting civilians from such dangers1037. Hence Relief societies, such as the
Red Cross and Red Crescent Societies, may offer their services and if necessary
provide impartial, humanitarian relief, subject to the consent of the High Contracting
Party concerned1038.

There is a general rule1039 that there are must be a distinction between combatants and
civilians and the prohibition of attacks against the civilian population as such or
against individual civilian population as such or against individual civilians implies,
in order to be effective, that all feasible precautions have to be taken to avoid injury,
loss or damage to the civilian population.

Also there is a prohibition of superfluous injury or unnecessary suffering which is a

general rule applicable in non-international conflicts. It prohibits, in particular, the use
of means of warfare which uselessly aggravate the sufferings of disabled men or
render their death inevitable.

2.3: The International Courts Attitudes on the protection of Civil

Population on non-international conflict.

In the case of THE PROSECUTOR V JEAN-PAUL AKAYESU1040, the accused

was charged before the International Tribunal1041for various allegations alleged to be
committed during the civil war in Rwanda. Though an accused was not found guilty
in most of the counts related to the violations of the Common Article 3 of the 1949
Geneva Conventions, yet the accused was found guilty of some offences related to
crimes against humanity and those of Genocide which are contrary to the rules laid
down under the International Humanitarian Law particularly on making distinction
between the civilian population and an enemy during an attack.

1036
This prohibition means also that a defending or retreating authority should not remove the
population merely because it fears that it may join its opponents.
1037
The civilian population may be suffering undue hardship from the lack of essential supplies,
comestible or medical taking an example of life hardship that face people in Ethiopia as a result of
internal conflict combined with natural disaster, in particular drought. See also Mc Coubrey, H (1990)
International Humanitarian Law: The Regulation of Armed Conflicts, at p.180.
1038
However such humanitarian reliefs sometimes meet some setbacks from some governments for
instance, the Ethiopian Government in 1988 decided to ban foreign relief workers from operating in the
internal zone, and on 7th June, 1988 the ICRC announced that it was no longer able to conduct
operations in the area concerned.
1039
As published by the ICRC.
1040
Case No. ICTR-96-4-T
1041
The International Court of Tribunal for Rwanda (ICTR) established by the United Nations Security
Council through resolution 955 of 8th November, 1994, for the prosecution of persons responsible for
genocide and other serious violations of international humanitarian law committed in the territory of
Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the
territory of neighbouring states, between 1 January and December 1994.

470
In its opinion on this case, the chamber found that there was conflict to meet to meet
the requirements of the provisions of the Common Article 3 and as to the additional
Protocol II of 1977. The court says;

“It has already been proved beyond reasonable doubt that there was an
armed conflict not of an international character between the Government
of Rwanda and the RPF in 1994 at the time of the events alleged in the
indictment…The Chamber found the conflict to meet the requirements of
the Common Article 3 as well as Additional Protocol II.”(Emphasis is
mine)

Again in the case of THE PROSECUTOR V JEAN KAMBANDA1042 the accused

was charged before the International Court of Tribunal for Rwanda (ICTR) for,
among others, the alleged killing of civilian population in Rwanda during the 1994
civil war. The accused person pleaded guilty in such allegations and the Court had
this to say;

“…Jean Kambanda is responsible for the murder of civilians, as part of o

widespread or systematic attack against a civilian population on ethnic or
racial grounds, and has thereby committed a CRIME AGAINST
HUMANITY, stipulated in Article 3(a) of the Statute as a crime…”(Emphasis
is mine)

From the two cases cited above, in my view, it is clearly seen that what was done for
Tutsi people in Rwanda as to discriminate them in terms of their ethnical groups or
racial grounds is contrary to the minimum conditions set down under the Common
Article 3 which require that their should be no adverse distinction based on race,
colour, religion or faith, sex, birth or wealth, or any other similar criteria.

Hence, following the verdict of the court in these cases, it is evident that, the
protection of civilian population as well as individual civilians is of the vital
importance in the International Humanitarian Law in as far as the non-international
armed conflict is concerned and that people alleged to have committed acts which
goes contrary to the international standards are subjected to the court’s punishment.

3.0: CONCLUSION.

To conclude this paper, it can be said that, there is o great connection between
people’s rights as recognized under the International Law and the need to protect
them at the time of hostilities whether International or non-international. However the
enforcement of the International Humanitarian Law in as far as the violation of it is
concerned has been always of very gradual process and in some cases depends upon
the will of some states to surrender the accused persons before the courts established
for the hearing of various alleged crimes as against the International Humanitarian
law1043. But despite such weaknesses, International Humanitarian Law has tried to

1042
Case No. ICTR 97-23-S
1043
Taking an example of the former President of Liberia, Charles Taylor who for long the
International Community requested for Nigerian Government to surrender him to the International

471
bring up reconciliation among the parties which were opposing to one another by
providing what is seen as a just reward to those who committed wrongs.

Tribunal in Freetown Sierra Leone to face charges on alleged crimes committed at the time of Liberian
Civil war.

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