TOPIC ONE

NATURE OF LAW
• The topic out comes are:
• 1. Explain the meaning and the nature of law
• 2. Sources of laws in Tanzania
• 3. Classification of law
• 4. Branches of law
• 5. the concept of legal system
 SUB TOPIC
• 1. Meaning and Nature of law
• 2. Characteristics of law
• 3. Importance of law
• 4. Sources of law
• 5. Classification of law
• 6. The concept of legal system
 MEANING AND NATURE OF LAW
WHAT IS LAW?
• For sure there is no acceptable definition of the
term “LAW”
• In this work a deliberate attempt is made to
avoid confusion found in different legal books on
the subject of law
• ACCORDING TO CICERO
• Law is the highest reason, implanted in nature,
which commands what to be done an forbid the
opposite.
 THOMASS ACQUINAS
• He maintained that, law is an ordinance of
reasons for the common good made by him
who has charge of the community
GRAY;
• He says law is the composition of rules which
the court has laid down for the determination
of legal rights and duties
 DEFINITION OF LAW ACCORDING TO
DIFFERENT SCHOOLS OF THOUGHT
IDEALIST
• They say state law is the command given by
God, to be followed by people.
MATERIALIST
• They say law as the set of rules made by the
state against the ruled.
 WORKING DEFINITION
• Law is the set of rules and principles which
regulate human behaviour.
 THE ORIGINALITY OF THESE SET OF
RULES AND PRINCIPLES
• These may be originated from Acts of
parliament, Subsidiary Legislations, Courts
decisions, Treaties, Rules, etc
 CHARACTERISTICS OF LAW
1. Law is GENERAL,
the sense that it does not deal with a single
group of people.
2. Law is NORMATIVE (DIRECTIVE)
•This means the subjects of law are bound to
follow with what the law direct them to follow
•It impose to sanction to those who go against
to it.
3. LAW IS BINDING
• This means the breach of it is automatically
followed by sanctions.
4. LAW IS PERMISSIBLE
• This means , law allow individual to create
their own relations to create right and duties
backed by legal intention.
• See the aspects in the formation of contract.
 IMPORTANCE OF LAW
• Helps in dispute resolution
• Regulating human behaviour
• Helps in distribution of wealth
• Helps in distribution of powers
• Helps to maintain stability
• Protect public morals
• Protect environment
• Punish law breakers
 SOURCES OF LAW
• By source of law we mean, various factors
that give rise to law.
• This is said to be the basis of the law.
• This may mean, the authority that give raise
to the rules of law (PARLIAMENT)
• It may also mean the new principles which
become part of body of law eg: Acts of
parliament, subsidiary legislation or Case
laws
• It may also mean the place where the law can
be found eg, statutes, Law Reports, or any
other written materials.
 SOURCES OF LAW IS DEVIDED INTO
TWO:-
1) Primary sources- Constitution, Statutes and
Case Laws.
2) Secondary Sources - Received laws,
customary laws, Islamic Law and International
law.
 CONSTITUTION
• This is the supreme law of the country, it is
sometimes called the mother of all laws.
• It is the document which establishes the
organs of the state.
• It define the power and limits of the three
organs of the state, namely; the Parliament,
Judiciary and Executive.
• It lays down necessary checks and balance of
three organs of the state.
• It also lay down the relationship between
citizen and their government in terms of rights
and duties,
• so as to prevent the government from
exceeding its powers .
• This is the document which all laws derive
their validity.
• Each law should conform with the
constitution.
• If the law contravene with any provision of
the constitution,
• the court may declare that piece of law or
provision as unconstitutional and hence null
and void.
 TANZANIA CONSTITUTIONS
Tanzania has two constitutions.
1.the Constitution of United Republic of
Tanzania of 1977 as amended from time to
time. And
2.As well as Zanzibar constitution (1984) of Isles
of Unguja and Pemba
 STATUTES/ACT OF PARLIAMENT
• The word statute refers to those pieces of
legislations enacted or made by parliament.
• Each piece of legislation embodied in a statute
is called an Act of parliament.
• they are sometimes knows as Principal
Legislations.
• Those laws made by other authorities other
than the parliament are called Subsidiary
Legislations or delegated Legislations.
• Initially, a Statute starts as a Bill (Draft Law)
which has to be tabled before a parliament.
• Once the National Assembly passes the Bill to
become an Act of law , it has to be assented by
the President.
• They operate as a mini code in a particular
subject which the Courts use in determining a
particular case.
• Eg:- Contract Act, Companies Act, Sales of Goods
Act ect
 DELEGATED LEGISLATIONS
• These are rules that are made by other bodies
other than the parliament.
• They are also called as Subsidiary Legislations
or subordinate legislations.
• See Interpretation of Laws Act (Cap 1 RE 2002)
• An act of Parliament may empower a person
or Authority to make rules to govern a
particular sphere.
• The rules that are made under authority
conferred by Statute are called delegated
legislation.
• The Act conferring the power is called Parent
Act.
• The particular section which confers the
power is known as enabling provision.
 TO WHOM THE POWER IS DEEGATED
• The power to make delegated legislation are
normally delegated to:-
i. Ministers,
ii. local Government Authorities,
iii.Heads of Departments,
iv.Public Authorities.
QUALITIES OF DELEGATED LEGISLATION
A delegated legislation must be consistent
with the law to which derives the power
Failure to do so it shall be declared as null and
void.
See the case of TITOS KORNELO VS MSHANA &
ANOTHER (C.A, Civ Appeal No 3 of 1980)
• The principle govern Delegated Legislation is
Delegatus non potest delegale
 PRECEDENT/ CASE LAWS
• The legal system of Tanzania is based on the
English Common Law.
• The English common law is attaches high
regards to the doctrine of precedent.
• This doctrine is articulated through the
concept of stare decisis.
• This means the habit of the Court to follow
their previous decisions.
• Each court in the judicial hierarchy,
• is bound by the principles established by
previous decision of the court above it.
• It also encompasses that court should not
lightly depart from their previous decisions.
• Although the sole function of the court is to
interpret the law,
• But in the course of doing so, the judges do
enjoy the freedom of making the law.
• It sometimes known as Judge made law.
• They may do so by using the technique of
statutory interpretation on explaining an
inconvenient decision.
 WHAT IS PRECEDENT/CASE LAW
THEN?
• Case law is the legal principle decided in
particular decision made by the Court of
record.
• This means all subordinate court are bound to
follow be it correct or incorrect.
• The principle is called RATIO DECIDENDI
 RECEIVED LAWS
• These are the laws received from England
during the time of colonialism.
• They were received through Tanganyika Order
in- Council of 22nd July 1920.
• Under this Order the British rule establishes
the High Court of Tanganyika.
 [
• The jurisdiction of this High Court include:
i. the application of Common law,
ii. Doctrine of Equity,
iii.And statute of general application enforce in
England.
• Article 17(2) of TOC contain this “RECEPTION
CLAUSE”
 CONDITION FOR ITS APPLICATION
• It is only when the local statute remain silence
or no any other law,
• This is when the courts in Tanzania will invoke
to the application of Common law, Doctrine of
Equity and statute of General Application.
• See the case of TANGANYIA GARAGE LTD VS
MARCEL MAFURUKI (1961) 105 CLR 6.
• The Court had this to say:
“where the circumstance of the case are not
provided in the codified Law of Contract in
Tanzania, one must fall back in the English
Common law”
 CUSTOMARY LAW
• In the Interpretation of Laws and General
clause Act, define customary law to mean
“any rule or body of rules whereby right and
duties are acquired in any Tanganyika African
community as having force of law.”
• This include any declaration or modification
found in section 9A of JALA
• See also section 11(1)(a) of JALA
 CUSTOMARY LAW IN CUSTOMARY
CONTRACT
• Since before and after colonialism, people in
Tanganyika now Tanzania engaged in
contracts.
• See section 13(4) Judicature and Applications
of Laws Act Cap 358 RE 2002.
• The section imposed a duty to the Governor
to respect the native laws and customs,
• Provided they are not repugnant to justice
and morality and not inconsistence to any
other written law.
• See also the case of MAAGWI KIMITO VS
GIBENO WEREMA.
• See also the case of MTATIRO MWITA VS
MWITA MARIANYA (1968) HCD No 82
• The court said:
“ if person of the same tribe enter into
agreement well known to tribal customs
under which the terms are prescribed, these
person in the absence of any evidence to the
contrary , be understood to be contracting in
accordance with these terms”
 STATUS.
• In Tanzania, customary law as the source of
law, enjoy the same status like any other
sources.
• See METHUTHELA PAUL NYAGASWA VS
CHRISTOPHER MBOTE NYIRABU.
 ISLAMIC LAW
• This is another source of law in Tanzania
• It is only applicable to matters relating to
Marriage, Divorce, Succession and Wakf.
• It only apply to the parties who professes
Islam.
• When the conflict arose between Islamic law
and State laws,
• the state laws prevails.
 SOURCES OF ISLAMIC LAW
a) The Holly Qur an
b) Sunnah and Hadith of Prophet Muhammad
(SAW)
c) Qiyas or analogy and
d) Ijma (concesus)
 PUBLIC INTERNATIONAL LAW
• The simple definition of international is that:-
“is the law of Nations”
• This means international law is the body of
rules and principles,
• which are binding upon civilised states in their
relation to one another.
• According to these definitions it appears that
international law only binds the states
• But states have formed several international
organisations especially since 1945,
• These organisation also need to be regulated
by set of rules,
• In the post world wars, international
community has shown increasingly concern
about individuals and his rights.
• These trend necessitate the new definition of
international law
• Therefore one may define, international as
“the law that concern with the conduct of
states and of international organisation, and
with their relation inter se as well as some of
the their relation with persons, be it artificial
or natural.
 SOURCES OF INTERNATIONAL LAW

• An authoritative source of international law is

given under Article 38(1) of the Statute of
International Court of Justice (ICJ)
• IT STATES:=
• SOURCES OF INTERNATIONAL LAW
• International conventions.
• International custom as evidence of general
practise of law
• The general principles of law as recognised by
civilised states
• Judicial decisions
• Teachings of the most highly qualified publicists
of various nations
 TYPES OF LAW
• We have the following:-
1.Civil law and criminal law
2.Private and public law
3.Procedural and substantive law
4.International law
 CIVIL AND CRIMINAL LAW
• Before we venture into the discussion as what
is criminal and civil law,
• it is of great essence to understand the
terminologies.
• The distinction between crime and civil
wrong,
• though capable of giving legal problem,
• But it is very distinguishable.
• The first thing to understand is that, the
distinction does not reside on the nature of the
wrongful act.
• The same act may be both i.e crime and civil
wrong
• Eg: at a bus stand, a person is making a living by
looking people’s bags while they are shopping.
• If I trust my bag to such a person and he runs
away.
• Then he commit the crime of theft and also
two civil wrongs
• i.e the tort of conversion and breach of
contract to keep my bag safe.
• The result is that he can be charged with two
legal actions
1) prosecution for the crime
2) civil action for the tort of conversion and for
the breach of contract.
• This example show that the distinction
between crime and civil wrong can not be
stated on what has been done,
• Because what have been done or ommited
may be same to each case.
• Therefore, the true distinction resides not in
the nature of the wrongful act but in the legal
consequences.
• If the wrongful act or omission is followed by
criminal proceedings,
• then that is crime (OFFENCE)
• If that is followed by civil proceedings, then
that is the civil wrong.
 THE DIFFERENCE BTN THE TWO;
1. Crime is a public wrong against the state,
while civil wrong is a private wrong against an
individual.
2. In criminal wrong the action cant be
compromised by parties,
• it is only in exceptional cases the public
prosecutor may withdraw a prosecution
against a particular accused.
• Example on Nolle prosequi
• While in civil wrong, parties are free to
compromise any action brought by one of
them.
3. The prosecution must prove its case against
the accused beyond reasonable doubt,
• any reasonable doubt must be resolved in
favour of the accused.
• (any person is presumed to be innocent until
proved guilty).
• While in civil wrong the plaintiff needs only to
prove his case on a balance of probabilities,
• and not beyond reasonable doubt
 Criminal and civil proceedings are easily
distinguishable;
• The procedure is different
• The outcome is different and
• The terminology is different
 IN CRIMINAL PROCEEDINGS
• the terminology is as follows:-
• You have a prosecutor prosecuting a
defendant.
• And the results if successful is a conviction,
• And the defendant maybe punished by to life
imprisonment, death, fine, corporal
punishment,
• released on probation or discharged without
punishment.
 IN CIVIL PROCEEDINGS,
• The terminology is plaintiff sues (bring an action
against) the defendant
• If proceedings is successful result into judgment
for the plaintiff.
• The judgment may order the defendant to pay
the plaintiff money,
• Or transfer the property to him
• To do or not to do something (injunction)
• Specific performance
• In judicial review (mandumus, certiorari,
prohibition, harbeas corpus) the parties are
called applicant and respondent respectively.
• In family matters, the parties are called
petitioner and respondent.
• The results are dissolution of marriage
(divorce), financial arrangement, division of
matrimonial property or custody of children
• Again the word “guilty” is primarily used in
criminal matters,
• In civil matter the word used is “liable”
• INTERNATIONAL LAW
• The simple definition of international is that:-
• “is the law of Nations”
• This means international law is the body of
rules and principles which are binding upon
civilised states in their relation to one another.
• According to these definitions it appears that
international law only binds the states
• But states have formed several international
organisations especially since 1945,
• These organisation also need to be regulated
by set of rules,
• In the post world wars, international
community has shown increasingly concern
about individuals and his rights.
• These trend necessitate the new definition of
international law
• Therefore one may define, international as
• “the law that concern with the conduct of
states and of international organisation, and
with their relation inter se as well as some of
the their relation with persons, be it artificial
or natural.
• SOURCES OF INTERNATIONAL LAW
• An authoritative source of international law is
given under Article 38(1) of the Statute of
International Court of Justice (ICJ)
• IT STATES:=
i) International conventions.
ii) International custom as evidence of general
practise of law
iii) The general principles of law as recognised
by civilised states
iv) Judicial decisions
v) Teachings of the most highly qualified
puplicists of various nations
 THE DOCTRINE OF PRECEDENT
• The legal system of Tanzania is based on the
English Common Law.
• The English common law is attaches high
regards to the doctrine of precedent.
• This doctrine is articulated through the
concept of stare decisis.
• This means the habit of the Court to follow
their previous decisions.
• Granville William, in his book “Learning the
Law”
• refers the doctrine as the habit of the courts
to follow their previous decisions within more
or less defined limit.
• This means each court in the judicial hierarchy
is bound by the decision made by the court
superior to it
 THE HISTORICAL BACKGROUND
• The English common is normally accredited
for the propounding of this doctrine.
• This practise began far back in 13th century.
• However, literature traces the origin of the
doctrine far back in ancient Roman
jurisprudence.
• For example ALLEN in “LAW IN THE
MAKING” had this to say:-
“papyri (part of Egypt was then a Roman Province
around 134-250 AD) show that it was common
practice to keep records of law suits, both
judgments and arguments….
 IN TANZANIA
• In Tanzania, the inception and continued
application of the doctrine was linked by
colonisation.
• Through the Tanganyika Order In-Council of
1920,
• The British establishes the High Court.
• The jurisdiction of the HC was to be in
conformity with:
i. substance of the common law,
ii. doctrine of equity and
iii.statutes of general application applied in
England in 22nd July 1920.
• Mapunda, Nguluma and mukoyogo in their
Article titled
“Reflection on Stare decisis in the Court of
Appeal of Tanzania,
• Said the importation of the common law
system presupposes the importation of the
doctrine of precedent.
 AT INDEPENDENCE
• At independence in 1961, the application of
the doctrine was retained.
• It was adopted by JALA when read in tandem
with Application of Laws and General Clauses
Act, 1972, Cap 1.
• The retention was observed by P.T George,
former CJ of Tanzania, who wrote
“on the very day of independence, there come into force JALO
adopting what existed throughout trusteeship period and
providing that the HC and subordinate courts should exercise
their jurisdiction in conformity with the doctrine of common
law, doctrine of equity and statute of general application
enforce in England in 22nd July, 1920”
 SIGNIFICANCE OF THE DOCTRINE
• The decision of the HC as a court of record is
important because:-
• Apart from solving disputes between litigants,
• they provide authorities to the courts below
and to general public.
• Therefore, it is not surprise to see some
scholars support the doctrine.
 COMPLIMENT FROM DIFFERENT
AUTHORS
JUSTICE CARDOZO had this to say:-
“in these days there are good deal of discussion whether the rule
adherence to precedent ought to be abandoned altogether, I will not go
so far myself. I think adherence to precedent should be the rule and not
exception”
 IN EAST AFRICA
• In East Africa, adherence to strict rule of
precedent was articulated by the then
president of East Africa court of Appeal,
• Sir Charles Newbold had this to say:-
“If one court were to give a decision on a particular set of
facts which raise a certain principle in one way, and another
court on similar fact which raise the same principle as the
earlier decision were to give different decision, it would be
impossible for the member of community to know what is his
right and duties on the particular set of fact”
 TANZANIA
• The CA of TZ is also in agreement with the
above principle.
• In the case of JUWATA VS KIUTA [1988]TLR
146
“A system of law require a considerable degree
of certainty and uniformity and such certainty
and uniformity would not exist if the courts
were free to arrive at a decision without
regard to previous decision”
• The above position was long held by the
great classical fathers of philosophy,
• Aristotle (384-322 BC) said:-
“to seek to be wiser than the law, is the very
thing which by good law forbidden”
 FAIRNESS
• As soon as the judicial decision is delivered, it
become binding on other fact similar to it.
• If similar cases are not treated alike, decision may
be arbitrary and leading to unfairness.
• The consistency in decision is said to be based on
equality and hence ensure fairness.
• Unreported decision are many and not easily
accessible.
• They also pose a danger to judge, magistrate or
advocate who happens not have them.
• Hence the unreported decision are said to be
“a pocket-pistol law”
 PREDICTABILITY
• This is one of the principle of the doctrine of
precedent.
• It enables the people to predict the law and
anticipate the future.
• It allow people to plan their lives and predict the
legal consequences of their actions.
• This can only be assured by the judicial system to
adhere to their previous decisions.
• But this tendency is now evidencing a great
departure
• This is because there are a number of
decisions of the High Court which are
overruded by the Court of Appeal and yet not
reported.
• Two examples will suffice here:
• In the case of CLEMENSIA FELIMA VS BASHIRI
ALI (Minor) civ appeal 19 of 1998 (C.A at
Mwanza) (unreported
• In this case the respondent sued through his next
friend the appellant who was a mid wife nurse in
charge at the time his other experiencing labor.
• The repondent suffered serious velebral palsy
whoch alleged to be caused due to negligent
handling of his mother at the time of labour.
• The question before court was whether a foetus
owed a duty of care to sue after his birth
• The High Court relying on English law of
Congenital Disabilities (Civil Liability) Act 1976,
• Held that the child could sue for injuries inflicted
during the time of his birth,
• It was cited as BASHIR ALY (MINOR) VS
CLEMENCIA FALIMA 1998 TLR 15
• The defendant successfully appeal to the Court of
Appeal.
• The court held that the situation is under
common law
• And under common law a foetus can not sue.
• Unfortunately this decision is yet to be
reported.
 CERTAINTY
• This means when the matter has been decided
then it is not subject to re-examination.
• From the law reporting perspective, it means
that a decision which establishes an important
legal rule should be reported.
• If that decision are not reported there could
be a great chances of conflicting decisions.
• Section 214 of the Criminal Procedure Act before
its amendment of 1988 and that of 2002provide
that a succeeding magistrate could act on the
evidence or proceedings of his predecessors.
• In the case of re trial a magistrate should
resmmonned the witness and recommence.
• The amendment trying to dispense with the
requirement condition of informing the witness
about his right to resummonned the witness.
SELECTED CONFLICTING DECISION OF
THE HIGH COURT
• The significance of the doctrine of precedent
in the HC need no interpolation,
• However, the trend in HC of TZ is not healthy.
• This made the CA to insist that the HC should
not seldom disregard its previous decision.
• In the case of ALLY LINUS & OTHERS VS THA
[1998] TLR 5,
• The court had this to say:-
“with due respect to the learned judge kiongozi, it is not matter of
judicial courtesy but matter of duty to act judicially which require a
judge not lightly to dissent from considered opinion of his brethren….”

• the first example of conflicting decision

revolve around the interpretation of
Paragraph 175 of the Customary Law
(Declaration) Order GN no 279 of 1963
• The para states:-
“Children born in wedlock belong to the
father”
• Kwikima (acting Judge) in the case of MGOWA
MADOLE VS MGOGOLO DODODO [1973] LRT
No 7
• He gave a wide interpretation of that
paragraph 174 of Customary Law
(Declaration) Order GN no 279 of 1963
• He said even those children born as the result
of adulterous association, while the marriage
still subsist,
• Belong to the lawful husband of that
marriage,
• No matter who their biological father may be.
• In rejecting the appeal of the mother, the
judge said:-
“she goes further to request that the child who was siren by
her paramour should be given to the person who was her
paramour. Her request is immoral and no court of law
would grant that request. It is settled law among patrilineal
tribes of TZ wagogo being among them, that all children
conceived during wedlock belong to the husband. Any
person who siren a child adulterously can not be held to
claim it. Even if such were not accepted custom, the ethics
of our present time would not tolerate an adulterer
benefiting from his sin to the detriment of his cuckold. It
would be adding insult to injury”
• Conversely, in the case of MNYALILA
LUMOLWA VS MUNDO SAJILO [civ appeal no
2 of 1991]
• The late Mwalusanya J. interpreted the phrase
“born in wedlock”
• Strictly as referring to children who are born
to people who are married to one another,
• Not to children born as the result of
adulterous by one of the spouse.
• It is our humble submission that the former
approach of Kwikima is far more correct than
the later.
• First, the approach correspond socio and
cultural of most patrilineal society as far as
bride price is concern.
• The purpose of bride price to these societies is
to transfer “reproductive potential” of a wife
to that of his husband.
• These include the children from that wife.
• So also when paragraph 175 read in tandem
with paragraph 124 of the Customary Law
(Declaration) Order GN no 279 of 1963 the
point become so clear.
• Under the later, it is provided that,
“if after a long absence of a husband come
homes and find his wife deliver a child,
Whom he could not be their biological father
by reason of his absence, Then the father has
a number of options including, disclaim the
children or accept them.
FACTORS CONTRIBUTING TO MAKING
OF CONFLICTING DECISIONS
• Conflicting decision to the High Court are
attributed to a number of factors:-
i) Lack of law reports
ii) Poor management and accessibility of
unreported decisions
iii)Lack of enough time for thorough research
iv)Plurality of laws
v) Statutory interpretation and
vi)The role played by advocate as officers of the
court
• Example of the role of advocate leads to
conflicting or supporting decisions.
• The inputs of the advocate in assisting to
arrive at just and fair decision can not be
under estimated
• Their role is realised through raising and
advancement of necessary point and research.
• In ABUALLY AZIZ VS BHATIA BROTHERS civ
appeal no 1 of 1999 ca
• The court commended research efforts made by
advocates:-
• “…we must at this stage express our profound appreciation of the
industrious research made by all advocate in general”
• However, in a number of occasion some
advocate have neglected this duty to the extent
of attracting criticisms from the court
• In DR. MASUMBUKO LAMWAI VS VENANCE
FRANCIS NGUHA & AG, civ appeal no 56 of 1997
• The court held that:-
“…both advocate have more than ten years of practise and are
expected to know that where a legal issue is raised in the
highest court… appropriate legal research is required by
both… we are compelled to express our disappointments at
the conduct of the learned advocate whom we know are
capable of doing more than they did”
 QUASI JUDICIAL BODIES
• COURTS OF LAW: TRIBUNALS, BOARDS AND
COMMETTEE
• Today the executive performs much quasi-
legislative function also.
• Government function have increase and even
though according to the traditional theory,
• the function of adjudication of dispute were
mainly to the courts of law,
• in reality many judicial function have to be
performed by the government.
• The state has now become a welfare state and
because of this the function to be performed
by the state has now increased.
• Therefore it was not possible for ordinary
courts of law to deal with all the social
economic problems.
• Administrative tribunals are, therefore,
established to decide various quasi-judicial
issues in place of ordinary courts of law.
• Thakker (Takwani, 1998)
• Are bodies established to decide various
quasi-judicial issues in place of ordinary
courts.
• Supreme Court of India, 1954.
• Are adjudicative bodies constituted, manned
and operated by the executive.
• DEFINITION OF ADMINISTRATIVE TRIBUNAL
AS PROVIDED IN DICTIONARIES.
• In dictionary meaning the term tribunal means
as “a seat of a judge” and if used in this sense,
it is wide expression which includes within it A
COURT also.
• OTHER NAMES OF TRIBUNALS
• In other words the term tribunal is sometimes
known as
• 1. QUASY JUDICIAL BODIES OR
• 2. STATUTORY BODIES
• WHY DO WE CALL THEM BY THESE NAMES?
• They are known as administrative tribunals
because as opposed to ordinary courts,
• these bodies are composed and chaired by
lay administrators (normally, non-lawyers)
who are either appointees' of the President or
Minister for a fixed term.
• They are referred to as quasi-judicial bodies
since they are not full-fledged courts (i.e. not
courts of law properly so called,
• they have supplemental/complementally role
to the Courts).
• They are called statutory tribunals simply
because they are creations of the statute.
• LEGAL BASIS OF TRIBUNAL RECOGNITION IN
TANZANIA
• The constitution of Tanzania remains silent about
the aspect of delegation of judicial power to
other state organs.
• However, by necessary implication and without
express provision the Constitution due recognise
tribunals.
• See article 13(6) (a) of the Constitution of United
Republic of Tanzania and Article 12(6)(a) of the
Constitution of Zanzibar.
• The said Article requires
• “the Court” and “any other agency” to
adhere to the principles of fair hearing when
deciding the dispute.
• Therefore, one may safely argue that the term
“agency” include administrative tribunals.
• THE BEST PRACTICE:
• The Constitution of Kenya (2010),
• Article 1(3)(c);
• (1) All sovereign power belongs to the people of Kenya and
shall be exercised only in accordance with this Constitution.
• 2) The people may exercise their sovereign power either
directly or through their democratically elected
representatives.
• (3) Sovereign power under this Constitution is delegated
to the following State organs, which shall perform their
functions in accordance with this Constitution––
• (a) Parliament and the legislative assemblies
in the county governments;
• (b) The national executive and the executive
structures in the county governments; and
• (c) The Judiciary and independent tribunals.
• TYPES AND EXAMPLES OF ADMINISTRATIVE
TRIBUNALS IN TANZANIA
• Administrative tribunals are classified into two
(2) major components, i.e. statutory authority,
and statutory tribunal.
• (a) STATUTORY AUTHORITY:
• This refers to individual holders of public offices
who have statutory powers to hear disputes (in
original or appellate jurisdiction/capacity).
• For example, labour officers and Minister for
Labour in certain circumstances have
statutory powers to entertain and make
decisions on labour disputes between an
employer and employee/s. **A 'single'
person exercises judicial powers.
• (B) STATUTORY TRIBUNALS:
• These are adjudicative body or agency
established by specific Acts of Parliament.
• Usually, the establishing statute will provides for
composition (i.e. appointing authority,
qualifications and etc),
• membership tenure, quorum, procedures and
etc.
• **A 'group' of persons exercises judicial powers.
• Examples;
• Military Tribunal (Court Martial),
• The Tax Revenue Appeals Board,
• The Environmental Appeals Tribunal,
• The Fair Competition Tribunal,
• The District Land and Housing Tribunal,
• The Ward Tribunal and etc.
• CHARACTERISTICS
• 1) administrative tribunals is the creation
of the statute and thus has statutory origin
• 2) it has some trappings of the court but
not all
• 3) it is not bound to strict procedure of
evidence and procedure
• 3) the decision of the most tribunals are in
fact judicial rather than administrative in the
sense that they have to record findings of the
fact obtained and apply the law.
• 5) They are independent and not subject
to the administrative interference in
discharging their duties
• 6) The prerogatives writ like certiorari,
mandamus, prohibition and quo waranto are
available against the decision of
administrative tribunals.
• REASONS FOR THE GROWTH OF
ADMINISTRATIVE TRIBUNALS
• 1) The traditional court system proved to
be inadequate and fail to solve all kinds of
dispute.
• It was costly, expensive and in-expert
• 2) Administrative tribunals can avoid
technicalities.
3. Administrative tribunals can take preventive
measures,
unlike traditional court they do not wait the
parties to come before them with disputes.
• ORDINARY COURTS V/S ADMINISTRATIVE
TRIBUNALS
(A) SIMILARITIES:
• 1) BOTH ARE ADJUDICATIVE MACHINERIES
(hear, adjudicate and render decisions)(i.e.
invested with judicial powers).
• The administrative tribunal is similar to that of
an ordinary court in the sense that they both
are adjudicating bodies,
• they hear the matter and finally render the
decision.
• This is because they are constituted with the
statute and have the permanent existence.
• As it was held in the case of Associate cement
Co, Ltd v. P.N Sharma the court was of the
view that
• “The basic and the fundamental which is common to both
the court and the tribunals is that they discharge judicial
function and exercise judicial powers which inherently vest
in a sovereign state”.
• 2. Both are governed by Acts of Parliaments.
• 3. Both have permanent existence.
• ADMINISTRATIVE TRIBUNALS AS DISTINGUISHED
FROM ORDINARY COURTS COURT
• it should be observed from the very beginning
that that the tribunals and the court are two
distinct things,
• that all the court are tribunals but not all
tribunals are courts.
• The tribunal possesses some trappings of the
court but not all, and therefore, they must be
distinguished.
• 1) A court of law is part of the traditional
judicial system.
• Where the power is derived from the state
and the body deals with king’s justice is called
“court,”
• on the other hand an administrative tribunal is
an agency created by the statute and invested
with the judicial power.
• 2) Whereby an ordinary court has the
power to try all suits of civil nature unless
expressly or implied burred by the statute
creating them,
• As provided in Article 107A of the Constitution
of United Republic of Tanzania of 1977
(hereinafter referred to as CURT).
• The administrative tribunal have power to try
all special matter statutorily conferred.
• 3) The mere lack of general jurisdiction on
certain civil suits does not lead to the
inference that the forum is tribunal and not a
court.
• The court can also be constituted with limited
jurisdiction.
• 4) Judges of the ordinary court are
independent of the executive in respect of
their tenure, terms and conditions of service.
Article 110 (1-4) of the CURT.
• 5) A court of law is always manned with the
people who trained in law,
• while in tribunal the member may or may not
be trained in law.
• 6) A court of law is strictly followed the rule
and procedure of evidence, while tribunal is
not bound by those procedures.
• 7) Ordinary Court handles dispute
objectively while the tribunals handles dispute
subjectively
INHERENT FEATURES OF ADMINISTRATIVE
TRIBUNALS
•Administrative tribunals are characterized by
following features;
•1) ADMINISTRATIVE TRIBUNALS ARE
CONSTITUTED BY ACTS OF THE PARLIAMENT
(and not by Government) i.e.
• tribunals are STATUTORY CREATURES'
• 2) DECISIONS OF ADMINISTRATIVE TRIBUNALS
ARE JUDICIAL RATHER THAN
ADMINISTRATIVE. Tribunals decide on legal
issues, in so doing, they confer or restrain
rights to individuals.
• 3) ADMINISTRATIVE TRIBUNALS DO NOT DEAL
WITH CASES IN WHICH A GOVERNMENT IS A
PARTY.
• They adjudicate disputes between businessmen,
employer/employee, landlord/tenant, and etc.
• 4) ADMINISTRATIVE TRIBUNALS ARE NOT BOUND
BY STRICT RULES OF PROCEDURES, EVIDENCES
AND OTHER LEGAL TECHNICALITIES.
• 5) THEY HAVE JUDICIAL POWERS (e.g. to
summon witnesses, pass legally enforceable
decisions and etc).
 CRITICISM OF ADMINISTRATIVE TRIBUNALS
(DISADVANTAGES)
•Opponents of administrative tribunals cite the
following weaknesses;
•THE PRACTICE VIOLATES THE PRINCIPLE OF
SEPARATION OF POWERS.
•The main challengers of the use of administrative
tribunals are professor Dicey (rule of law), and
Montesquieu (separation of powers).
• 1. THEY HAVE WIDE DISCRETION THUS
MAKING THEIR DECISIONS UNCERTAIN OR
UNPREDICTABLE.
• 2. THE RIGHT TO APPEAL IS NOT ALWAYS
GUARANTEED. Normally, statutes establishing
administrative have phrases such as, "the
decision shall be final and conclusive", "the
decision shall not be appealable", "the decision
shall not be subjected to judicial review", and etc.
• Such kinds of provisions have come to be
known as "OUSTER CLAUSES", "FINALITY
CLAUSES", "PROTECTIVE CLAUSES" OR
"PRECLUSIVE CLAUSES".
• 4. IN PRACTICE, ADMINISTRATIVE
TRIBUNALS VIOLATES RULES OF NATURAL
JUSTICE
• they pass decisions without; giving reasons,
hearing all parties, or adjudicates in matters
that they have interest,
• or abdicate/sub-delegate their judicial powers
to other agencies or person/s.
• Maxim:
• Nemo judex in causa sua potest (i.e. no one
can be a judge in his own cause); Audi alteram
partem (i.e. hear both sides); Delegatus non
potest delegare (i.e. delegated powers can not
be delegated any further).
• TRIBUNALS ARE MANNED BY LAYMEN AND
THUS ADVOCATES ARE NOT ALLOWED TO
APPEAR.
• SUBORDINATION OF THE ORDINARY COURTS
OF LAW.
 THE LAW OF CONTRACT
WHAT IS CONTRACT?
• The term contract is defined in section 2(h) of
Tanzanian Contract Act as follows:-
• AN AGREEMENT ENFORCEABLE BY LAW IS A
CONTRACT.
• Thus to arrive at a contract there must be
• 1) an agreement
• 2) the agreement should be enforceable by law
• AGREEMENT
• An agreement is defined as every promise and
every set of promises forming the
consideration for each other.
• A promise is defined as an accepted proposal.
• Proposal when accepted become promise
• See section 2(b)
• ENFORCEABLE BY LAW
• An agreement enforceable by law is contract.
• In other word, an agreement which the law enforce is a
contract.
• The conditions for its enforceability are provided under
section 10
• According to this section an agreement is enforceable by
law if.
1) Made for consideration
2) Btn parties who are competent
3) With their free consent and
4) For lawful object
• PROPOSAL OR OFFER
• In every agreement there must be a proposal and
acceptance.
• For the agreement to be concluded it must start
with proposal.
• See section 2(a) LCA
• When a person signifies (indicate, show) to other
to do or to abstain from doing anything, with the
view of obtaining the assent of another, he is said
to make a proposal”
• The person who make a proposal is called
promisor or offeror.
• The person to whom the offer is made is
called promissee of offeree
• Offer has two parts
1)An expression of the offeror to do or abstain
to do
2)Made with the view to obtain the assent of
the offeree to proposed or abstinence
• COMMUNICATION OF PROPOSAL
• The first requirement of the proposal provides
that the proposal should be “signifies”
• This means the proposal should be
communicated to other party.
• The communication of proposal is complete
when communicated to other party.
• MODES OF COMMUNICATION
• Section 3 provides for the essence of communication.
• It may be done by way of mouth or by writing or it may
even be done by conduct.
• IMPLIED PROPOSALS
• A man may express his desire to do something or to
get something only by conduct.
• Conduct may actually convey a clearly words of mouth
or assent to proposed promise.
• See section 9
• For example stepping into the bus, or consuming eatable at
a self service restaurant,
• Both implied promise to pay for service rendered.
• COMMUNICATION WHEN COMPLETE
• Section 4 of the LCA provide categorically as to when the
communication of offer, acceptance, and revocation.
1) Communication of proposal is complete when it comes to
the knowledge to whom it was made
2) Communication of acceptance is complete when:
i)As against the proposer, when it put in the course of
transmission to him so as to be out of the power of the
acceptor.
• ii) as against the acceptor, when it comes to
the knowledge of the proposer
• Iii) the communication of revocation is
complete when:-
• A) as against the person who makes it,
• when it is put in the course of transmisson to
the person to whom it is made, so as to be out
of the power of the person who make it
• As against the person to whom it is made, when it comes to
his knowledge
• ILLUSTRATION
A) A” proposes by letter, to sell his house to B in a certain
price
B) B” accept the A” proposal by a letter sent by post.
The communication of acceptance is complete against A,
when a letter is posted, as against B when the letter is
received by A”
c) A revoke his proposal by telegram
-the revocation is complete against A” when the telegram is
dispatched, complete against B when B received it.
• D)B revoke his acceptance by telegram. B
revocation is complete as against B when the
telegram is dispatched, and against A when
reaches him.
• INTENTION TO CREATE LEGAL RELATIONS
• It is established principle that to create legal
relation there must be common intention of the
parties to enter into legal obligation.
• Contract must not be a game of idle hour, mere
matters of pleasantry,
• Never intended by the parties to any serious
effect whatsoever.
• See the case of darlmple vs darlmple (1811) 161
FR 665
• But it should be borne in mind that, not every
loose conversation results into a contract,
• Although the parties may agree.
• See the case of BALFOUR VS BALFOUR
• The defendant and his wife were enjoying life in
england.
• When the defendant wanted to return to his
home place were he was employed,
• His wife was advised by doctors due to medical
reason to remain.
• The defendant agree to send his wife £ 30 a
month for expenses
• He send it for some months, and then
differences occurred.
• It result into their separation and hence the
allowance fell into arrears
• The wife action to recover the arrears was
dismissed
• Lord Atkin had this to say:-
• … to be arrangement which are made between
husband and wife. These arrangement do not
result into contract at all, eventhough they are
made to may constitute consideration for
agreement. They are not contract because the
parties did not intend that they shall be attended
by legal consequences”
• FAMILY AND SOCIAL MATTERS
• The intension of the parties has to be seen from the
terms of the agreement and surrounding
circumstances.
• It is the the duty of the court of law to identify that,
• In the matters of social relations if follow in the matter
of course that the parties are never intended to create
legal relation.
• But can never be said that they never wish to create
legal relations as far as domestic arrangement is
concerned.
• In JONES VS PANDAVON
• A divorced woman was living with her son in
Washington and employed in Indian embassy
• Her mother lived in Trinidad and persuade her
daughter to study law in England and then join
her in Trinidad.
• She undertook to cover her expenses.
• For five years the daughter never complete her
studies.
• The mother stopped payment
• DANKWERT allow the appeal of the mother said,
• It is one of family arrangement which depend on good
faith, and never intended to create legal binding.
• SALMON LJ,
• He also allow the appeal but on different ground.
• He said the act of the daughter to leave his job and
gone to another country on her mother request
amount to contract.
• But that agreement only last for the period of time for
her to complete her education,
• The period of five years is sufficient
• GENERAL OFFERS
• An offer can be made to the general public at
large.
• A contract is not made to all world, but only to
person who come forward and perform the
conditions of the proposal.
• An offer need not be made to ascertain person,
• But no contract can arise until it has been
accepted by ascertain person.
• See ANSONS LAW OF CONTRACT, 23 rd edn ay
pg40
• A leading authority for this is the case of
CARLILL VS CARBOLOC SMOKE BALL CO (1893)
1 QB 256AA
• A company offered by advertisement to pay £
100 to anyone who contracted influenza,
• This is only when After using the ball
according to the directions.
• It was added that £100 is deposited to the
bank to show their sincerity on that.
• The plaintiff used the smoke ball according to
the directions but she suffer the influenza.
• She was entitled to recover the damages.
• Counsel for the defendant argue that the offer
was not made to any person in particular.
• It was made to general public at large
• The plaintiff had not communicated her
intension to accept.
• BOWEN J said in cases like this communication
of acceptance is not necessary.
• Performance of the conditions is sufficient
acceptance without notification.
• If I lost my dog and advertise, and say any body
who brings the dog to a particular place will be
rewarded,
• Are the police and any other people who their
business is to find the lost dogs,
• Need to sit down and write to me that they have
accepted my proposal? I think not.
• See section 8
• Performance of the conditions of the proposal…
is an acceptance of the proposal
• OFFER AND INVITATION TO TREAT
• An offer is clearly different from invitation to treat.
• When a man display that he has books to sell, there is
no offer to be bound by any contract.
• They are only is offer to negotiate, offer to receive
offers
• When a party without expressing his final willingness,
propose certain fact on which he is willing to negotiate,
• He does not make an offer, but invites other to make
an offer to those terms.
• IN HARVEY VS CASIE has the merit to explain the
distiction.
• The plaintiff telegraphed the defendants, writing:-
• Will you sell us a bumper ball pen? telegraph lowest
cash price please,
• Defendant also replied by telegraph “lowest price is £
900,
• Defendant immediately replied via telegram that
• “we agree to buy bumper Hall pen for £ 900 asked by
you.
• The defendant however refused to sell them
the bumper ball pen
• Plaintiff said by indicating a price he was
making an offer to sell
• The court turn down their argument.
• It said in their first telegraph, plaintiff asked
two questions.
• First as to their willingness to sell and second
as to the lowest price
• Defendant only answered the second question
in the lowest price,
• They reserve their answer as to willingness to
sell.
• Their last telegraph to plaintiff was an offer to
to buy, that was never answered.
• CATALOGUE AND DISPLAY OF GOODS
• A shopkeeper catalogues of price is not an offer.
• It is only an invitation to customers to offer to buy those
product
• In PHARMACEUTICAL SOCIETY OF GREAT BRITAN VS BOOTS
CASH CHEMIST
• It would be absurd to say that a shopkeeper is making an
offer to sell the goods to any person who come in the shop,
• And the client saying “I accept your offer”
• There is no contract by the shopkeeper to sell until the
client take the product to the desk,
• And say “I want to buy this” and shopkeeper
say “yes”
• That will not prevent the shopkeeper seeing
the article and say “Im sorry I cant sell you
this”
• May if it is a book he may say it is the only
copy I have,
• Or I promise someone else.
• ACCEPTANCE
• Section 2(b)LCA define acceptance to mean:-
• When a person to whom the proposal is
made signifies his assent thereto, the
proposal is said to be accepted. A proposal
when accepted become a promise.
• COMMUNICATION OF ACCEPTANCE
1)By external manifestation or overt act
• The definition clearly use the word signifies.
• This means it has to be manifested by an overt
act or omission by the party accepting the
offer
• A mere mental determination to accept
unaccompanied by an overt act will not be
sufficient
• An agreement does not result from mere
mind,
• This does not give rise to contract, there must
be some external manifestation of that intent
speech, writing or other act.
• 2) acceptance by conduct
• The good example of accepting offer by conduct, is
that of action according to the offer.
• All case of general offer are good example, because
they demand an act in return for the promise.
• These are some kind of unilateral promise.
• See section 8,
• It provides that, performance of the conditions of the
proposal, of the acceptance… is an acceptance of the
proposal.
• See the case of CARBOLLIC VS SMOKE BALL.
• 3) acceptance to be signifies to offeror
• Acceptance of the offer must be communicated to
offeror himself,
• Communication made to any other person other than
offeror is of no effect.
• In FELTHOUSE VS BINDLEY
• Plaintiff offered by way of letter to purchase his
nephew’s horse.
• The letter said “if I hear no more about the horse I
consider the horse mine.
• To this letter no reply was made.
• The nephew told the auctioneer (defendant)
that the horse is not for sale,
• Because it was sold to his uncle, the
defendant by mistake sold the horse.
• Plaintiff sues the defendant on the ground
that, under the contract the horse was his.
• The action failed.
• Held:
• By all means the nephew in his on mind
intended the uncle to have the horse,
• But never communicated his intention to him.
• The offeror can not impose a burden of
refusal to offeree.
• The offeree can not say if no answer is
received within a certain time, the offer shall
be deemed to be accepted.
• 4) ACCEPTANCE TO SIGNIFIES BY ACCEPTOR
• The communication of acceptance must be from the person who
has the authority to accept.
• Acceptance received from unauthorised personel is ineffective.
• In POWEL VS LEE
• The plaintiff was an applicant for the headmastership of a school.
• The managers passed resolution to appoint him,
• But the decision was not communicated to him.
• One of the members, however in his own individual capacity
informed him.
• The managers cancelled their resolution and he sued for breach of
contract
• In rejecting the suit, the court observed:-
• There must be a notice from the contracting
party.
• Information from unauthorised person is
insufficient as overhearing from behind door.
• MODE OF COMMUNICATION
• Acceptance must be made in a manner prescribed by
the offerer
• Acceptance made not in a manner prescribed by
offerer may not be effective, particularly when the
offerer insist them to be followed.
• A minor departure can not upset the contract provided
that the acceptance is made in speed way.
• A duty is cast on the offeror to reject such acceptance
within a reasonable time.
• If he fail to reject, then the contract is bound on him.
• See section 7(b)
• Where no manner has been prescribed
acceptance must be in a usual and reasonable
manner.
• ABSOLUTE AND UNCONDITIONAL
• Section 7(a) provide that acceptance must be
absolute and unconditional.
• This means any departure from the terms of the
offer may vitiate the acceptance,
• Unless agreed by the person from whom the
offer comes.
• Otherwise it will be a counter offer.
• In HYDE VS WRENCH
• In this case the offer to sell the farm for £1000
was rejected by the plaintiff,
• The plaintiff offered £ 950,
• This was turned down by the offeror and then
the plaintiff offered to pay £ 1000.
• The court held that the defendant was not bound
by such acceptance.
• But when the counter offer is accepted, the
contract arises interns of counter proposal,
• Not from original proposal
• CAPACITY TO CONTRACT
• The provided for the people who are capable of
entering into the contract.
• These include:-
• Age of majority people,
• Sound mind people and
• Not those who are disqualified from the law to
which they are subject.
• See section 11 of LCA
• Minors, unsound mind, and person who are
disqualified from the law to which they are
subject are disqualified from contracting.
• See section 11(2) LCA
• EFFECT WHEN MINOR ENTER INTO THE
CONTRACT
• Minor is not allowed to enter into a contract,
• Once he enter into the contract by lying on his
age, and then say the truth
• Then no estopel against his previous act
• If he obtain property or good out of
misrepresenting his age,
• He can be compelled to restore it, provided
that it is traceable.
• If he converted them into cash or sell them he
can not be made to repay them.
• LIABILITY FOR NECESSARIES
• When someone supply necessaries to minor, then
the person who supplied those necessaries has to
be reimbursed from the property of that minor.
• See NASH VS INMAN
• See section 68 of LCA
• In CHAPPEL VS COOPER
• The court define what is necessaries
• Things necessary are those which human being
can not exist without them.
• These include food, shelter, cloth and alike.
• PERSON OF UNSOUND MIND
• In Tanzania a person of unsound mind may enter
into the contract,
• He may avoid the contract if satisfy the court that
at the time he entered into the contract,
• he was incapable of understanding the nature
and other party knew it
• The position of the drunken person is the same,
• If make a contract when drunk, he may avoid it
when he is sober or choose to continue with the
contract.
• See the case of MATHEW VS BAXTER (1873) LR 8
Ex 132
• So also a person of unsound mind may make a
contract when he is of sound mind
• See section 12 LCA
• LEGALITY OF OBJECT
• Section 23 renders certain consideration and
object unlawful.
• The consideration and object are lawful unless:-
1)Forbidden by law
2)Defeated the provision of any other law
3)Implies injury to other person or property
4)Immoral or opposed to public policy
• FORBIDEN BY LAW
• Where object of the agreement is forbidden by law then
the agreement is unlawful.
• For the sake of this discussion, the law means, the law
enforced for the time being.
• The simple example is selling liquor without valid licence.
• DEFEAT ANY LAW
• Sometimes though the agreement is not directly forbidden
by law,
• It would if permitted defeated some provision of other law
• Such agreement is also void.
• In FOSTER VS DRISCOL
• Here the agreement was to buy whiskey in
England and smuggle it to United States
against the law of USA.
• This agreement is illegal because smuggle
whiskey to USA is unlawful though buying
whiskey in England is legal
• INJURY TO PERSON OR PROPERTY
• Any agreement to injure someone or his property
is unlawful.
• So also if the object is that of injuring someone or
his property, then the agreement is unlawful.
• In BERESFORD VS ROYAL INSURANCE CO LTD
[1938] AC 586
• In the policy of insurance there was a clause that,
• If the assured be it sane or insane committed
suicide in a year, the policy would lapse.
• The assured in perfect state of sanity
committed suicide after nine years
• His estate was not allowed to recover money
from insurance money,
• This is because suicide is an offence hence no
one can benefit from his own wrong.
• “extupri causa non oritor actio”
• FREE CONSENT
• Free consent is an essential requirement of a valid
contract,
• It is defined under section 14.
• Consent is said to be free when is not caused by:-
1) Coercion as defined in sect 15
2) Undue influence sect 16
3) Fraud section 17
4) Misrepresentation section 18
5) Mistake subject to the provisions of sections 20, 21, 22
LCA
• Section 10 of LCA indicate that free consent of
all of the parties to an agreement is one of the
essential element of the valid contract.
• Section 13 LCA says that two persons are said
to consent when they agree upon the same
thing in the same sense.
• Therefore consent involves identity of minds
or consensus of idem.
• If for any reason whatsoever, there is no
consensus of idem among contracting parties,
• There is no real consent and hence no valid
contract
• Section 14 define free consent to mean
• Consent is said to be free when is not caused by:-
• Coercion as defined in sect 15
• Undue influence sect 16
• Fraud section 17
• Misrepresentation section 18
• Mistake subject to the provisions of sections 20,
21, 22 LCA
• BURDEN OF PROOF
• It is for the aggrieved party or complainant to
prove that his consent to the agreement was not
free consent, because it was caused by,
• Coercion or undue influence, or fraud or
misrepresentation or mistake
• EFFECT
• When the contract is not free the contract may
turn out to be either voidable or void, depending
upon the nature of flaw in consent
• When the consent is caused by undue
influence, fraud, misrepresentation,
• The consent is not free consent and the
contract is voidable at the option of the party
under which the consent was so caused
• See section 19
• When the consent is caused by bilateral
mistake as to matter of fact essential to the
agreement,
• The agreement is void,
• See section 20.
• COERCION
• Section 15 define what is coercion.
• Example threat to commit suicide is coercion
• Threat of worker to go on strike is not
coercion
• EFFECT
• Party aggrieved may affirm the contract or
repudiate the contract- voidable
• UNDUE INFLUENCE
• Section 16(1) said that,
• contract is said to be induced by undue influence
when the relation subsisting between the
parties are such that,
• One of the parties is in the position to dominate
the position the will of the other,
• And he use that position to obtain an unfair
advantage over the other
• Section 16(2) provides for the situation of undue
influence.
• a) where he holds a real or apparent authority
over the other eg. Teacher and student
• B) where he stand in a fiduciary relation to the
other. Example
• Father and son
• Solicitor and client
• Doctor and patient
• BURDEN OF PROOF
• The presumption of undue influence,
• The burden of proving that on the person
who was in a position to dominate the will of
another,
• Did not use his position to obtain an unfair
advantage,
• will lie to the person who was in a position to
dominate the will of another
• EFFECT OF UNDUE INFLUENCE
• Section 19(1) provide when the consent to an
agreement is caused by undue influence,
• The contract is voidable at the option of the
person whose consent was so caused
• Any such contract may be set aside absolutely,
• Or if the party who is entitled to avoid it has
received any benefit there under,
• Upon such condition the court may deem fit
under section 16(4),
• The court has discretion to direct the aggrieved
party for refunding the benefit in whole or in
part,
• Or set aside without any direction for refund of
benefit.
DISTINCTION BTN COERCION AND UNDUE
INFLUENCE
They both vitiate consent and make consent of one
of the parties to the contract not free.
1)HOW CONSENT OBTAINED
In coercion the consent of the aggrieved party is
obtained by committing or threatening to commit
an act forbidden by penal code
-In undue influence the consent of the aggrieved
party affected by the domination of the will of one
person over the other.
• 2) PHYSICAL AND MORAL
• Coercion is mainly of physical character involving
mostly use of physical force,
• While undue influence is of moral character
involving use of moral force and mental pressure
• 3) PRESUMPTION AND BURDEN OF PROOF
• There is no presumption of coercion by law under
any circumstances
• In case of coercion, the burden lies on the party
whose consent was so caused.
• In case of undue influence, there is a presumption
that the burden of proof is upon the party in a
position to dominate the will of the other.
• See section 64 the effect of coercion is that the
benefit received by the aggrieved party has to be
restored,
• Under section 19(4) the court in undue influence
has discretion to direct the aggrieved party to
restore the benefit whether wholly or in part
• CONCIDERATION
• Section 25 of LCA provide that an agreement without
consideration is void
• Therefore, consideration means a payment for the act
done.
• See section 2(1) (d) LCA
• At the request of the promisor,
• The promesee
1) Done something
2) Abstain from doing something
3) Having abstain from doing something
• This means one party is ready to part with his
money in return to something
• EFFECT OF AGREEMENT WITHOUT
CONSIDERATION
• An agreement without consideration is void.
• See section 25(1)
• TYPES OF CONSIDERATION
• 1) EXECUTORY CONSIDERATION
• This means a consideration is furnished after the
contract had been made.
• In other word, the consideration promise to be
made in the near future
• 2) EXECUTED CONSIDERATION
• This means at the due date the buyer pays the
seller
• 3) PAST CONSIDERATION
• This a promise for consideration is given for the
past act
• In kenya and uganda, this is not consideration at
alL
• EXEPTION
• WHEN REQUESTED TO DO
• See the case of LAMPEIGN VS BRATHWAIT [1613]
2B
• In this case Brathwait killed a man
• He asked L to do anything so as he could obtain
pardon from the King
• L made several journey and incurred some cost
to make sure the pardon is made by the king
• The pardon was obtained,
• After that B promise to pay and later on refuse to
pay
• HELD: since the courtesy was asked then B is
liable to pay
• PAST CONSIDERATION IN TZ
• Past consideration in Tanzania is valid
consideration.
• See section 2(1)(d)
• “when at the desire of the promisor, the
promesee has done or abstained from
doing…”
1)THE WORD “HAS DONE OR ABTAINED”
indicate the act was done in the past.
2) section 70 LCA
•When a person deliver to someone a valuable,
not intending to do gratuitously and the other
benefit,
•The later is bound to make compensation.
•EXEPTION
• the former should be given a opportunity to
accept or rejecting the benefit
3) THE ACT DONE PROMESEE WAS LEGALLY BOUND
TO BE DONE BY THE PROMISOR
•An agreement without consideration is void unless
•Section 25(1)(b)
•An agreement without consideration is void unless
•“ it is a promise to compensate, wholly or in part, a
person who has already voluntarily done something
for the promisor, or something the promisor is
compellable to do”
• SUFFICIENT AND ADEQUATE OF
CONSIDERATION
• Consideration need not be adequate.
• If party agree on that then it is okay
• The law do not interfere the freedom of
parties to enter into the contract
• See the exceptions to consideration under
section 25.
 • DISCHARGE OF CONTRACT
• The contract is said to be discharged when the
right and obligations of the parties arising out of
it are extinguished.
• The contract may be discharged in the following
1. BY PERFORMANCE
• The performance must be contingent.
• The expression contingent is defined in section
31 of the law of contract to mean,
• Is a contract to do or not to do something, if
something collateral to such contract occur
or does not occur.
• It is a sort of conditional contract and the
condition is of uncertain nature.
• A contract which is subject to a certain or
absolute type of condition can not said to be
contingent contract.
• Example a contract to pay sum of money in the
expiry of time or death is not contingent.
• This is because the time or expirer of person will
definitely come and the money will be paid
• When the condition is of uncertain in nature,
that is when the contract is uncertain.
• Example the contract to pay sum of money on
the destruction of the premise by fire, is the
contingent,
• For that, contingency may or may not occur
• In this view, all contract of insurance are
contingent, except life insurance.
• The contingency must be collateral to the
main contract.
• This means the contract is there, but its
performance can not be demanded,
• unless the contemplated event happen or
does not happen
• WHERE ENFORCEMENT DEPEND ON THE
HAPPENING OF AN EVENT S.32
• The contingent contract to do or not to do
something, if uncertain thing happen,
• Can not be enforced until such event
happened
• In this scenario if the happening of that event
become impossible,
• the contract become void
• Example asha contracts to pay juma sum of
money when juma marries mwajuma. Mwajuma
dies without marrying juma.
• The contract become void.
• So also the contract would not be enforceable
where the event does not happen in the way
contemplated by the parties to the contract.
• Example, when the car was insured against
loss in transit,
• The car was damaged without put in the
course of transit,
• The insurer was held not to be liable
• 2. BY MUTUAL CONSENT OR AGREEMENT
A) NOVATION
• When parties the contract agrees to substitute
the existing contract with a new contract, it is
called novation.
• LORD SELBURNE in the case of SCARF V. JARDINE
“… there being a contract in existence, some new
contract is substituted for it either between the
same parties or between different parties.
Mutual consideration being the discharge of the
old contract”
• NOVATION IS OF TWO KIND
1) NOVATION AS TO CHANGE OF PARTIES
• A owes money 100,000/= to B. A is debtor and B
is the creditor.
• It is agreed btn A, B and C that B shall now accept
C as his creditor.
• Instead of A, C will pay the amount to be B.
• The old debt of A to B is now come to an end,
• And new debt from C to B has been contracted
• 2) substitution of new contract
• When a parties to the contract agree to substitute a
new contract for it,
• The original contract is discharged and it need not be
to be performed.
• The most important thing to note here is that,
• The original contract must be subsisting and unbroken.
• The substitution of a new contract is not possible after
these has been a breach of the original contract
• In JAVA VS MEAL LTD
• The petitioner had applied for a post of head clerk
after reading an advertisement.
• He was selected and appointed but he was placed at
lower scale than that mentioned in the advertisement.
• He accepted his placement and then claimed for
promised scale as mentioned in the advertisement.
• He was not allowed to do so.
• The principle of novation was applied.
• The appointment and acceptance at the lower scale
substituted the original proposed scale
• B) RESCISSION
• The contract may be discharged before the due date of
the performance of the contract by agreement btn the
parties.
• Abondment by respective parties if their right under
contract is consideration for mutual promise.
• Example. A promise to deliver a certain goods to B on
a certain date.
• Before the date of performance A and B mutually
agree that the contract will not be performed.
• Then contract is performed by rescission
• C) REMISSION
• Acceptance of the lesser fulfilment of the performance.
• Eg 500/= accept 200/=
• D) WAIVER
• This is deliberately giving up a right which a party is
entitled to under contract
• Eg A promise B to give him 100/= if he perform in the
music performance.
• B participated, and A afterward express his inability to
pay,
• B consent, weiver by B
• 3) DISCHARGE OF CONTRACT BY SUBSEQUENT OR
SUPERVINING IMPOSIBILITY OR ILLEGALITY
• I) IMPOSIBILITY AT THE TIME OF MAKING THE
CONTRACT
• If a contract is made to perform an act which is by its
nature impossible,
• Then that contract is void.
• Example to make a dead man alive by magic power,
this is an agreement which is void right from the
beginning,
• Void abnitio,
• No question of terminating such a contract or
at all.
• Section 56 provides:-
• “an agreement to do an impossible in itself is
void”
• This section talk about something which is
impossible inherently or by its nature,
• And which may or may not be known to both
the parties at the time the contract was made
• If the impossibility is not obvious and the
promisor alone knows of the impossibility or
illegality existing at the time of the contract,
• Then such promisor is bound to compensate
the promisee for any loss suffered through the
non performance
• This is inspite the contract being void abnitio
• Example A is married to C. A contract to marry
B.
• B does not know that A is married to C and
that A can not marry again in the life time of
his first wife,
• It is being prohibited by law.
• A must make compensation to B for the lose
caused by her by the non performance of his
promise to marry
2) SUBSEQUENT IMPOSIBILITY
•A contract to do an act after the contract is
made become impossible to perform due to the
happening of some event is void.
•The contract to do an act which after the
contract become unlawful, become void
•See section 56(2)
• FOR APPLICATION OF SECTION 56(2) CERTAIN
CONDITIONS MUST BE FULFILLED
a)That the ACT should become impossible
b)Impossibility should be of the reason of the
same EVENT which promisor could not
prevent
c) That imposibility should not be SELF INDUCED
by the promisor or his negligence
• In the first well known English case of PARADINE
VS JANE,
• It was held that subsequent happening should
not affect the contract already made,
• It was held that;
• “when the party by his own contract create a
duty, he is bound to make it good, if he may,
notwithstanding any accident by inevitable
necessity, because he might have provided it in
his contract”
• In the case of TAYLOR VS CALDWELL, lord
blackburn had this to say:-
• The above rule is only apply when the contract is
positive and absolute,
• and not subject to any condition either express or
implied
• In this case TAYLOR, the defendant agreed to let
the plaintiff to use of their music hall for the
purpose of holding a concert there,
• Before the first date of the concert, the hall was
destroyed by fire,
• This was because of fault of either of the
parties
• The plaintiff sued the defendant for their loss,
• It was held the contract was not absolute,
• It depends on the existence of the hall
• Hence the contract was discharged due to
impossibility
• 2) LOSS OF OBJECT OR FRASTRATION
• In this case the performance of the contract
become physically impossible,
• This is because of the disappearance of the
subject matter.
• But the principle is not confined to physical
impossibilities
• It extend also to cases where the performance
of the contract is physical possible,
• But the object the parties had in mind has
failed to materialise
• See the case of KRELL VS HENRY
• The defendant agreed to hire from the
plaintiff a flat for june 26 and 27.
• On which days it had been announced the
coronation procession would pass along that
place,
• A part of the rent was paid in advance and the
other to be paid after coronation.
• The king become ill and coronation procession
was cancelled,
• The defendant refuse to pay the balance and
instead claim to be paid his amount paid.
• The court held that,
• The real object of the contract as agreed by
both parties was to have the view of the
coronation procession
• This was the foundation of the contract,
• The object of the contract was frustrated by
non happening of the coronation procession,
• The plaintiff was not entitled to recover of the
remaining payment
• SPECIFIC GROUND OF FRUSTRATION
• 1) DESTRUCTION OF SUBJECT MATTER
• The doctrine of impossibility will apply in full when
where the actual and specific subject matter has
ceased to exist
• See the case of TAYLOR VS CALDWELL
• Similarly, where contracted to sell a specific amount of
potatoes,
• But failed to supply due to decease attack the
potatoes,
• It was held the contract was become impossible
• 2) NON OCCURRENCE OF CONTEMPLATED
EVENT
• Sometime the performance of the contract
remain entirely possible,
• But owing to the event of non contemplated
by the parties the value of the contract is
destroyed.
• See the case of KRELL VS HENRY.( coronation
case)
• 3) DEATH OR INCAPACITY OF PARTY
• A party to a contract is excused from
performance,
• if performance depend upon the existence of
a given person
• If that person perishes or become too ill to
perform.
• Where nature of the contract require personal
performance by promisor,
• His death or incapacity puts to an end the
contract,
• In the case of ROBINSON VS DAVIDSON
• There was a contract btn the plaintiff and
defendant’s wife,
• Who was an eminent pianist, that she should
play the piano at the concert,
• On the day of the concert she phoned the
plaintiff that she was too ill to attend the
concert,
• The concert had been postponed and the
plaintiff lost sum of money
• The plaintiff action for breach of contract failed,
• The court held that:-
• Under the circumstances she was not merely
excused from playing,
• But also not at a condition of her being well
enough to perform.
• In MORGAN VS MENSER [1947] 2 ALL ER,
• a 16 years boy was engaged for five years to
perform as a drummer for all seven nights
whenever the band had business and,
• On account of illness, he was certified to be able
to perform only five nights.
• The contract was held to be frustrated
• 4) INTERVENTION OF WAR
• Intervention of war has in many times create
many difficulty.
• the closure of the Suez canal following the
outbreak of Anglo-French war,
• Interrupted many contract performances
• In the case of TSAKIROGLOU & CO LTD VS
NOBLEE THORL
• The appellant agree to sell respondent 300
tons of Sudan groundnuts c.i.f Hamburg,
• The normal route at the time of contract was
via Suez Canal
• Shipment was to be Nov/Dec 1956,
• On Nov 2 1956 the canal was closed until April
1956
• It was stated that the respondent could use
transport goods via Cape of Good Hope,
• The respondent refused.
• The question was whether by the reason of
closing the suez canal,
• The contract has been ended by frustration.
• The respondent argument was that, the
implied condition is that the shipment had to
be done via suez canal
• The court held that such term could not be
implied,
• Even if suez canal were closed,
• the respondent had a duty under Sale of
Goods Act to ship the cargo by reasonable
practicable route,
• Though it may lead to greater expenses,
• Hence no frustration
• 5) GOVERNMENT OR LEGISLATIVE INTEVENTION
• The contract will be dissolved when legislative
has render the fulfilment of the contract illegal.
• In MAN SIGN VS KAMAN SIGN
• A contract between the parties for the sale of the
trees of a forest,
• Was discharged when the state forbade the
cutting of the tree in the area.
• DISCHARGE BY LAPSE OF TIME
• This include
A)Law of limitation-3 years
B)Where time is of essence
• DISCHARGE BY BREACH
• A breach of the contract occurs when a party
thereto reject the liability under it.
• Or by his own act make the performance
impossible,
• Or partially or totally fails to perform his
obligation under the contract
• The failure to perform the contract may take
place at the time of performance has arrived
or,
• Before the time of performance hence
• 1) ANTICIPATORY BREACH
• 2) PRESENT BREACH
• ANTICIPATORY BREACH
• This occurs prior to the promised date of
performance,
• The promisor absolutely repudiate the
contract.
• It is the announcement of the contracting
party of his intention not to be bound by the
contract
• EFFECT
• ACCEPTANCE OF REPUDIATION BY AGRIEVED
PARTY
• In the first place the other party is excused from
performance or other subsequent performance
• Secondly,
• It entitled the injured party to an option to sue
immediately or
• To wait till the time the time of performance
arrives
• In the case of HOCHESTER VS DE LA TOUR
[1855]
• Plaintiff was a carrier, he was engaged by
defendant to accompany him in tour to
commence on June 1, 1852
• A month before this, defendant wrote to
plaintiff informing him about change of his
mind,
• He then decline the service.
• The plaintiff sue for damages for breach of
contract,
• The defendant counsel argue that there could
be no breach of contract before performance
• The court ruled out the objection and held
that:-
• the contract is the contract from the day it
was made,
• Not from the date of performance
• If A promise B to marry her on a future day,
and then A marry another woman,
• B has the right to sue for breach of promise to
marry
• in FROST VS KNIGHT [1872]
• Defendant promise to marry plaintiff on the
death of his father,
• The father still living, and the defendant
announce his intention not to marry plaintiff,
• The plaintiff without waiting for father’s death
brought an action for breach.
• Defendant argue that the breach could only
arise on the happening of the contingency
• Court held that:-
• The case fall within the ambit of HOCHESTER,
(carrier’s case)
• Hence the present action is well brought
• CONSEQUENCES FOR NOT ACCEPTING
REPUDIATION
• If injured party not accept repudiation and live
the contract alive,
• The consequences will be as follows:-
• FIRST- the party repudiating may choose to
perform when the time comes and
• The promisee will be bound to accept it.
• SECONDLY- while the contract is lying open,
• Some event happen which discharge the
contract, such as by supervening illegality, or
frustration,
• The promisor will be allowed to take advantage
and claim the contract to be discharged by
frustration.
• In the case of AVERY VS BOWDEN [1856]
• The defendant chartered a plaintiff ship and
agree to load it with a cargo within 45 days
• On the arrival of the ship, the defendant told the
captain he had no cargo for him and requested
him to go away.
• The captain however, stayed there on the hope
that the defendant would fulfil his contract.
• Before the expiry of 45 days, the war broke which
render the performance illegal.
• Plaintiff brought an action for breach,
• The court held:-
• The contract had been ended by frustration
and not by breach
 DAMAGES FOR THE BREACH OF CONTRACT
•The party who is injured by breach of the
contract may bring an action for damages.
•WHAT IS DAMAGES
•Damages means monetary compensation for
the loss caused to the injured party
• AIM OF AWARDING DAMAGES
• The sole purpose of awarding damages is:-
• To put the party whose right have been
violated in the same position,(status quo)
• So far the money can do so, as if his right have
been observed
In ROBINSON VS HARMAN [1962]
•Defendant having agreed to grant lease to
plaintiff refused to do so.
•The court allow the plaintiff by way of damages
the expenses incurred to him on,
1)Preliminary legal work
2)For the profit he would have earned if the
leased would be granted to him
• Thus damages are paid to the plaintiff by way
of compensation for the loss suffered and not,
• For the purpose of punishing the defendant
for the breach
 • TYPES OF DAMAGES
• 1)GENERAL DAMAGES
• These are for loss which arise naturally in the usual
course of things from the breach itself.
• In the case of VICTORIA LAUNDRY VS NEWMAN
INDUSTRIES LTD [1949]
• The plaintiffs were carrying launderers and dryers.
• They wanted to expand their business and they
needed a boiler,
• The defendant promise to supply the boiler but they
delay to deliver as agreed
• The plaintiff brought an action for the loss
suffered as profit,
• The loss include the loss of lucrative contract
from the government.
• The court held the defendant had the knowledge
that the machine was needed immediately,
• And failure to do so would result into loss,
• But defendant did not know the plaintiff could
have lucrative contracts.
• 2) SPECIFIC PERFORMANCE
• This is also another type of damages awarded
by the court.
• This does not include award of monetary
compensation to the injured party.
• The court only compel the defendant to
honour the terms of contract as agreed only.
• The award issued by the court is the writ of
mandamus.
• In order to award specific damages, the
subject matter must be of unique in nature,
• Which can not compensated by way of money
• In the case of SANDEEP CEMENT LTD VS UNION
OF INDIA [1990]
• The petitioner transported coal through the
respondent railway,
• The coal were not delivered in the destination.
• The consignment consisted of mineral coal
which was scarce commodity and not easily
available in the market.
• It was held that monetary compensation
would not be adequate relief in this case.
• The railway administration was ordered to
deliver the good in kind
• 3) EXEMPLARY DAMAGES
• These are damages for breach of contract
which result into injury of feelings and
disappointment.
• This include:-
a. Physical pain
b.Agony (distress, pain, anguish)
c. Indignity (humiliation, shame, dishonour) etc
• In the case of LAXMINARAYAN VS SUMITRA
[1995]
• After the engagement, the would be husband
continue to promise to marry the girl,
• He had sexual contact with her as the result
the girl become pregnant,
• Then he refuse to marry her.
• It was held that she was entitled to damages
in various counts such as,
• Physical pain, agony, indignity, chances of
marriage become dim and social stigma
• 4) SUBSTANCIAL DAMAGES
• There are damages paid to the injures party
for inconvenience suffered due to the
negligence on the part of the defendant.
• In the case of HOBBS VS L &S.W RY [1875]
• Due to the negligence of the defendant,
railway company,
• The plaintiff and his family were set down at a
wrong railway station.
• Neither any nearby hotel nor any conveyance
was available to them.
• The plaintiff was entitled to substantial
damages for inconvenience to the family
• 5) SPECIFIC DAMAGES
• These are damages awarded to the injured party
only when,
• The person making the breach can be made liable
for the same only when,
• Those special circumstances were brought to his
knowledge at the time of making the contract.
• If he had no knowledge of the particular
circumstances, he can not be held liable
• In the case of SIMPSON VS LONDON &
NORTH WESTEN RAILWAY [1876]
• The plaintiff who was a manufacturer, used to
send his sample of goods to various
exhibitions.
• Once, he gave his sample to the agent of the
defendant, a railway company.
• The sample was to be transported to
Newcastle for exhibition.
• This fact was within the knowledge of the
defendant’s agent,
• The consignment note state “ MUST BE AT
NEWCASTLE MONDAY CERTAIN
• Due to defendant negligent, the good reached
Newcastle only after exhibition.
• The plaintiff sue for the loss suffered.
• It was held that,
• The defendant agent was having a special
knowledge of the circumstances that the good
had to arrive in Newcastle on time,
• They were liable.
 REVIEW QUESTIONS

• 1. what is law? Explain legal sources of law

• 2. “… the basis and the fundamental which is
common to both the court and the tribunals is that
they discharge judicial powers which inherently vest
in a sovereign state…” source anonymously.
• Required
• Explain the reason for the growth of administrative
tribunal.
• What are characteristics of administrative tribunal
• 3. With examples Differentiate criminal law
and civil law
 REFERENCES

• 1. The Constituion of the United Republic of Tanzania

• 2. The Judicature and Application of laws Acr, 1963
• 3. Nditi, N.N (2004) General Principles of Contract
Law in East Africa. Dar es salaam University Press.
• 4. Keenan, Dand Smith (2003), Law for Business
person. Longman London