Question: Is a wife and husband joint tenant or tenants in common under the village Land Act, No. 5/1999?

There is no specific provision in Act No.5/1999 that says that husband and wife are joint tenants in common. Section 22(1) of Act No.5/1999 only says that family unit may apply for customary right of occupancy in village land. However, under the Act spouses can be joint tenants in common depending on fact that, an application for a Customary Right Occupancy if they want to hold a single title, interest and possession i.e. joint tenancy or they want the holding of right of occupancy to be limited to possession only i.e. tenancy in common.

Note: section 161 of Land Act 4/1999; Joint occupiers unless the presumption is rebutted. Registration done as Occupies in common.

Question: Define the following:

  • Judicial Immunity;

Judicial immunity refers to exemption of judicial officers from personal liability for the acts done or words spoken in the exercise of their judicial office. The immunity is absolute in respect of words or actions of judicial officers while acting within their jurisdiction and extends to acts done without jurisdiction provided that they were done in good faith, as per section 16 of the   Penal   Code   and   section   66(1)   of Magistrate Court Act, 19984.

(b).     Immunity of an Advocate;

Immunity of an Advocate refers exemption of the advocate from personal liability for all acts done and words spoken in respect of all matters relating to the cases they are dealing

with or conducting.

(c).     Reference?

………………

Question: (i). What do understand by Burden of proof. What are the standards of proof?

Burden of Proof refers; the duty of a party to litigation to prove a fact or facts in issue. Generally, the burden of proof falls upon the party who substantially asserts the truth of a particular fact i.e. the prosecution or the Plaintiff as the existence or nonexistence of fact in issue. Also be noted that there are no absolute standards of proof in both criminal and civil cases but there may be degree of proof within those standards. Standard of proof refers the degree of proof required for any fact in issue in litigation which is established by assessing the evidence relevant to it.

Example; in criminal cases the standard is proof beyond reasonable doubt, whereas, in civil cases, the standard is proof on balance of probabilities. That is in civil cases the plaintiff discharges his/her burden of proof when he/she adduces evidence of such a nature that the court can think it to be more probable than not. The burden doe not shift.

Note: there are two types of burden of proof namely; persuasive/legal burden and evidential burden.

Persuasive/Legal burden – it is the burden that is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue. Evidential Burden – is sometimes referred to as a burden of adducing evidence that means the duty of showing that there is sufficient evidence to raise an issue fit for the consideration by court.

(ii). What is the difference between Power of Attorney and Deed

Poll?

Power of Attorney refers an authority given by one person to another to act on his behalf. It is sometimes referred to letter of Attorney. A deed Poll refers a deed to which there is only one party, for example one declaring a change of name.

Note: a power to execute a deed must itself be given by a deed.

Question: Various Financial Institutions, Non-Financial Institutions and Banks have a complained against certain laws in respect of the land Act. No. 4/1999 and the Village Land Act, No.5/1999.

Can you tell the Councils the law under which such complaints are based?

The laws under which such complaints are based are

…………………………………………………………

Question. (i) How can a foreigner acquire a Right of Occupancy in Tanzania?

Section 20(1) OF Act No 4/1999 restrict Occupation of Land by Non Citizen unless it is for Investment purposes under the Tanzania Investment Act, No 26 1997. Thus, before a foreigner applies for a Right of Occupancy must apply for a certificate of by Approval from Tanzania Investment Centre under the Tanzania Investment Act, No 26 of 1997and any other documentation which may be prescribed the same Act and attach them to his Application for Right of Occupancy.

See section 25(1)(h) of Act No 4 of 1999

(ii) What is the difference between Possession and Ownership of Land?

Possession refers to Actual control of property combined with the intention to use it, rightly or wrongly as one s own. In the case of Land Possession may be Actual when the owner has entered onto land or possession in law, that is when he has the right to enter but he has not done so. Possession includes receipt of rent and profit or the right to receive them. As for Ownership, the owner has exclusive right to use, possess and dispose of property subject only to right of persons having a superior interest and any restrictions on

the owner rights imposed by agreement with or by act of third parties or by operation of law. The owner of land has a number of rights such as to dispose of the land. Thus while the ownership the land confers legal right to the owner, possession does not.

Question. (i). What is the difference between Arbitration and normal Litigation?

The difference between Arbitration and normal Litigation are; 1). In Arbitration, both parties agree to refer the matter to arbitration While; in Normal litigation, only one party i.e. the Plaintiff institutes the suit;

  • In arbitration, determination of dispute is done by one or more independent third parties i.e. the Arbitrator While; in normal litigation, the dispute is determined by the Court of law;    3). In arbitration, there are no strict use of rules of law of evidence or procedure while; in

normal litigation/suit, there is strict use of law of evidence or procedure

4). The decision in arbitration is final and binding in parties and persons claiming under them respectively, while; the decision in normal suit is subject of being challenged e.g by way of appeal

(ii).     What are the advantages of arbitration?

1). To determine disputes expeditiously/speedily and fairly 2). It saves time and costs

3). It does not involve cumbersome procedures 4). Parties remain friends after arbitration

(iii).     What name is given to a decision in arbitration?

A decision in arbitration is referred to as an award

Question. (i) What is the Association are you going to join if you pass  the Interview?

If I pass the Bar Examination I will join Tanganyika Law Society.

(ii)  under Which Law is that Association established?

Tanganyika Law Society is established under the Tanganyika

Law

Society Ordinance, Cap 344

(iii)  What other professional bodies will you join if you pass Bar

Examination

Other profession bodies are:- 1). East African Law Society

2). Tanzania Women Lawyers Association (in case of women)         3). Legal and Human Rights Centre

4). International Bar Association 5). Amnesty International

Question. (i) Can you the Council the three modes in Winding Up a Company?

Three modes of winding up a company are governed by the provisions of S. 157(1) of Cap 212. These are –

1).Winding by the Court 2).Voluntary Winding Up; or

3). Winding up subject to the supervision of the Court

(ii).Which remedies has minority shareholders if humiliated by majority shareholders?

Remedies available the minority shareholders is humiliated by majority

Shares Holders is/are:

1). To sell his shares to the majority shareholders 2). To sue majority shareholders

If the two remedies can not be exercised he can petition for winding up of the Company

(iii). Suppose you are a newly admitted Advocate and you feel Uncomfortable to appear before the Court Appeal. Can you give a

written submission instead of physical appearance?

An Advocate who feels uncomfortable to appear before the Court of Appeal can only give a Written Submission instead of physical appearance by leave of the Court of Appeal; that is if he applies for the leave and the same is granted.

Question.(i) Can you briefly tell the Council what certificate of competence means?

Certificate of Competence is the certificate issued under the S. 24 of the Road Traffic Act, No 30 of 1993 by the examining Officer to a driver of motor vehicles upon complying with paragraphs (a) and (b) of the same section i.e. where applicant for the same certificate is competent to drive a motor vehicle of class of which he desire driving

(ii) Tell the Council the Department which are under the Ministry of Justice and Constitution Affairs

Department which fall under the Department of Justice and Constitution Affairs are: –

1). Attorney General Chambers 2). The Judiciary

Question.(i) What do you understand by specific performance?

Specific performance is one of the remedies of contract. It is a Court order to a person/part to a contract to fulfill his obligations in the contract. It is an equitable remedy and is only given at the discretion of the Court, normally where damages prove inadequate compensation for breach of contracts of sale

of land or unique goods not obtainable in the market.

NOTE: It is one of the equitable remedies for a breach of a contract.

(ii)  Mention types of marriages which are recognized by Law in this        country.

Section 10(1)(a)-(b) of the Law of Marriage Act No. 5/1971 of Tanzania provides for two types of marriage. These are;

  1. Marriages that are monogamous or are intended to be monogamous; and
    1. Marriages that are polygamous or are potentially polygamous

(iii)  What are the distinct features on these marriages?

The distinct features on these marriages are;

1). That the polygamous or potentially polygamous are contracted in Islamic form or according to Islamic rites or Rites recognized in the Customary Law in Tanzania, Whereas; 2). The monogamous or marriages intended to be monogamous are contracted in any other form, such as Christian form.

Question.(i) What functions has the Land Division of the High Court to perform?

The functions which the High Court Land Division is required to perform are governed by the Land Disputes Act No 2 of 2002.

These are:

1). To determine Land cases with which it has original jurisdiction 2). To determine appeals from District Land and Housing Tribunal     3). To exercise its general powers of supervision over District land and Housing Tribunal 4). To exercise its power of Revision jurisdiction over proceedings and decision or order of District Land and Housing Tribunals

(ii)  Can you tell the Council the composition and Pecuniary Jurisdiction of Ward Tribunal and Village Land Council.

  1. Composition is 4 – 8 members. Three shall be women. See Section 11 of Land Disputes Act No. 2/2002
    1. Pecuniary is limited to three million shillings. See Section 15 of Land Disputes Act. No 2/2002 Composition and Pecuniary jurisdiction of Village Land Council
    1. The Composition i.e. 7 members 3 of whom must be women       4). As to pecuniary jurisdiction the Law i.e. Act No 2/2002 is silent but Section 7© of Act No 2/2002 provides that the Village Land Council can mediate any matter concerning Land falling within its jurisdiction.

Question. (i).When does period of limitation start to run in an action in a contract?

The period of limitation in an action on a contract starts to run from the date of the breach.

Question: What ingredients should part in a suit for malicious prosecution prove?

The ingredients of prosecution which a part to a suit must prove are:

  1. Plaintiff’s accusation by the other
  2. That prosecution was in favor of complainant or accused
  3. Prosecution was instituted against him without reasonable and probable cause
  4. That prosecution was instituted with malicious intention and
  5. As a result of prosecution, special damages were suffered.

Question. (i). Can you tell the Council what do you understand on the following:-

  1. trial within trial

Trial within trial refers to a mini trial conducted within a main trial to establish the admissibility of a disputable piece of evidence which has been challenged by the defense. eg when the confession retracted/apologized for or repudiated/rejected

b).     Case stated

Case stated refers to the written statement of the relevant fact in a case submitted for the opinion or judgment of superior Court. After the hearing and decision of a case, the part to the case may quest Court or Tribunal to state a case for the opinion or judgment of the superior Court.

Sometimes case started is referred to a special case.

In Tanzania Case Stated is governed by Section 65 and Order XXXIV of CPC. Order XXXIV Rule (v) provides that parties may by agreement in writing state questions of facts or law

in form of case for the opinion of the court.

Question. (i). In Company Law what does the following phrases mean a). A forfeiture clause;

Forfeiture Clause is a clause allowing or empowering a company to forfeit partly paid shares.

b). Transmission of shares;

Transmission of shares means the transfer of shares that occurs automatically by operation of law, bankruptcy (from the Bankrupt to his trustee in bankruptcy) or upon death (to the personal representative of the deceased).

Note:the transferees do not become company members until the company enters their names upon the register of members. Before their names are entered upon the register of members, they cannot attend or vote at the company meetings.

Question: (ii). Will you tell the Council under the Constitution, what are the qualifications for a person to be appointed as a judge in Tanzania?

The qualification for a person to be appointed as a judge in Tanzania are provided for under Article 109(7) of the Constitution of Tanzania 1977 which provides that a person eligible for appointment as the judge must posses for at least 5 years special qualifications. The provisions further states that one of such special qualifications, is qualification of being enrolled as an advocate of High Court. Article 109(9) of the Constitution dispenses with the requirement of at least 5 years of possession of special qualifications if the person to be appointed the judge has the ability and

experience fit for the appointment as a judge. Note: see 14th the Constitution amendments which has come up with amendments regarding qualifications for appointment as a judge of High Court and Court of Appeal.

(ii). Can the President retire a Judge in Public interest?

The President can retire a judge in public interest but must follow the procedure laid down under Article 110(6) of the Constitution.

Question: (i). What is circumstantial evidence?

Circumstantial evidence refers a series of circumstances leading to the inference or conclusion of guilty, while; direct evidence is not available. It is the evidence from which the court may enter the existence of a fact in issue but which does not prove the existence of the fact in issue directly.

(ii).     Is circumstantial evidence inferior to direct evidence?

If circumstantial evidence is clear good enough and reliable; it has same value as direct evidence.

Note: In circumstantial evidence standard of proof is higher than direct evidence see Mpanduji vs. Republic

(iii).     Who is the Secretary of the Advocate Committee?

The secretary for Advocate Committee is Attorney General.

(iv).     How does Advocate Committee differ from Tanganyika Law Society?

The difference between Advocate Committee and

Tanganyika Law Society is that TLS is a society of lawyers enrolled as advocates of High Court and courts subordinate thereto. The committee is a body that removes advocate from the roll and hears complains against them.

(v).     Is the decision of the Advocate Committee appealable?

The decision of the Advocate Committee is appealable to or before the full bench of the High Court.

(vi).     Is the decision of the Council of Legal Education appealable?

The decision of Council for Legal Education is final and not appealable.

Question: (i). Mention offences on which bail may be considered by the High court?

  • What is an insurance company?

Insurance Company is the Company that carries on the business of Insurance.

(iii).     What is the procedure before on acquires a Right of Occupancy?

The Procedure for acquiring the Right of Occupancy is governed by sections 25, 27 & 28 of Act; No. 4/1999.

First, application for granted right of occupancy is made; Secondly, after application for granted right of occupancy, letter of offer will be issued by relevant authority, and thirdly, acceptance of offer by paying the requisite fees to the relevant authority; and

lastly, certificate of occupancy is issued.

Question: Can you tell the council the function of the following institutions: (a). LART;

The function of LART is to manage non-performing assets on behalf of banks and the government.

(b).     LART Tribunal;

The function of LART Tribunal is to adjudicate on matters or disputes between the banks and borrowers in relation to non performing assets arising from LART Act, 1991.

(c).     PCRC;

The function of PCRC; are provided for in section 22(1) of the Public Corporations (Amendment) Act, No.16/1993 and these are:    i). to maintain list of all public corporations and make recommendations to minister on which public corporation should be declared to be specified public corporation;

  • to formulate and execute detailed plans for the restructuring of all specified public corporations;
  • To supervise monitor and enforce the restructuring procedures and agreements in relation to specified public corporations;         4). To liaise as necessary with responsible ministries and other organs of the Government with a view to ensuring that the objectives of the Commission are achieved;

5). To make such other recommendations as it considers necessary to enable the commission achieve its objectives

under Act No. 16/1993.

Question: (i). In law there is point of law which an arbitrator cannot determine, what steps can the parties take so that the point of law is determined.

The steps the parties can take so that the point of law which the arbitrator cannot determine is;

  • The parties will enter into agreement in writing stating to court the point of law which arbitrator cannot determine;
  • Parties will file their agreement in court of competent jurisdiction; and
  • Such competent court will hear and determine such point of law as if it is suit.

(ii).     What Laws govern injunctions in Tanzania?

Injunction in Tanzania are governed by Order XXXVII of Civil Procedure Act as per Atilio vs. Mbowe (1969) HCD; and Rule 55 of the Court of Appeal Rules, 1979.

(iii).     Can you briefly tell the Council the principles of injunction?

The principle of injunction are:………………………..

(iv).     Can you tell the Council the law that governs the enforcement of foreign judgments and orders.

The law that governs the enforcement of foreign judgments and orders is the Reciprocal Enforcement of Foreign Judgments Act; Cap. 8

Question: What laws govern stay of execution?

Stay of Execution is governed by; the Civil Procedure Act Order XXI Rule 24 of the Civil Procedure Act and Rule 55 of the Court of Appeal Rules, 1979.

Question: (i). Please tell the Council the modes of Execution of a decree?

The modes of execution of a decree is provided for under Order XXI of the Civil Procedure Act. The modes of execution of decree depends on the type of decree, for example; Decree of payment of money is executed by:

  1. The detention of as a civil prisoner of the judgment debtor, as per Order; or
    1. By the attachment and Sale of his property or both; (as per Order XXI Rule 28 and 29 and Order XVI, Rule 13).

(i).    Decree for any specific movable or for any share in a specific movable may be executed by;

  1. The seizure, if practicable of the movable or share;
    1. By detention as a civil prisoner of the judgment debtor; or c). Attachment of his property or both.

(iii). Decree for any specific performance of a contract or for an injunction is executed by:

a). Detention as civil prisoner of the judgment debtor; or b). Attachment of his property or both.

Question: What do you understand by the following? a). Private Company;

  • Public Company;

c).     Company limited by shares.

  1. Private Company; is the Company which restricts the maximum number of members to fifty, restricts transfer of shares and prohibits the invitation of members of the public to subscribe to its shares.
    1. Public Company; is the Company with unlimited number of its members and it does not restrict transfer of its shares and does invite the members of the public to subscribe to its shares.
    1. Company Limited by Shares; is the Company whose memorandum of association limit the liability of its members to the amount of unpaid shares, if any.

(i). If a non citizen wants to acquire land in Tanzania, what happens. (ii). Can you tell the Council the Regulation made by the Minister under the Land Act.

(iii). What is the significance of the divisions on the Law Reports? (iv). Can you state two law which govern Affidavits.

(v). What are the rules which governs in the civil procedure Cords. (vi). Tel the Council the ingredients of the offences of rape.

  • Can a husband rape his wife?

(viii).     Can a party prove his case entirely on an affidavit?

i). If a non citizen wants to acquire land in Tanzania is

required to show that the land is for investment purposes under the Tanzania Investment Act, 1997 as provided under section 20 of the Land Act No.4/1999. His application for right of occupancy must inter alia; be accompanied by the certificate of approval granted by Tanzania investment Center under Tanzania investment Act, 1997. See section 25(1)(h) of the Land Act No. 4/1999.

ii).The Regulations made by the Minister under the Land Act are The Land Regulations of ………………….

  1. The significance of the decisions in the Law Reports are; a). Some decisions i.e. those made by our superior Courts are binding and are precedents;

b). Other decisions i.e. those made by Foreign Courts have persuasive value to our courts.

  1. The two laws that governs Affidavits are: 1). Civil Procedure Cord;

2). Statutory Declaration and Judicial Proceeding Act; and 3). Notaries Public and Commissioners for Oaths Act.

  • The rules which governs Affidavits in the Civil Procedure Code are rule 1-3 in Order XIX.
  • The ingredients of the offence of rape are:
  • To have a carnal knowledge of a woman or a girl without the consent or with the consent when such consent is not recognized in law i.e. under Penal Code as amended by SOSPA.;
  • Taking advantages of ones position so as to commit rape.
  • The Husband can rape his wife when he has sexual intercourse with his separated wife without her consent. See section 130(2) of the Penal Code as amended by SOSPA.
  • Yes, a party can prove his case entirely on affidavit. But, he can do so, if the Court makes the order to that effect. See

O. XIX, rule 2(1) of Civil Procedure Code.

Note: Proving the case on affidavit is ordered in ex-parte proof cases.

Question: (i). What do you understand by a provisional Liquidator? (ii). How many types of Liquidation?

(iii). What law regulates the appointment of a receiver Manager? (iv). How is trustee in Bankruptcy appointed?

(v).     What do you understand by floating charge in relation to Debenture?

  • What do you understand by a fixed Charge?
    • Provisional liquidator refers a person appointed by the court to conduct the compulsory winding up of a company pending the appointment of a liquidator. He is appointed before winding up order. Appointment of Provisional Liquidator is governed by section 183 of Company Act, Cap.

212.                                                                           Note: Provisional

Liquidator is a person appointed by the Court after presentation of a winding up petition. He is appointed before the making of winding up order.

  1. Liquidation in other words is winding up. The types of liquidation are;Compulsory liquidation winding up arises where a

creditor or contributory or company itself petition to the court for a winding up order.

  • Voluntary Liquidation Winding up; arises where creditors and others interested decide to settle the matter amicably instead of resorting to court. It may also be initiated by members of the company.
    • Appointment of a Receiver Manager is governed by:………………..
    • Floating charge in relation to debenture refers…………………………….
    • Fixed Charge is the charge attached to a specific item of property i.e. it is created on specific and definite property of a company e.g land. Fixed charge precludes the company from dealing in the property without the consent of the holder of the charge.
    • Trustee in Bankruptcy is appointed by the court.

Question: (i). Can you tell the Council the Law whereby Air Tanzania Holding Corporation is currently established? (ii). What do you understand by summery dismissal and termination in Labour Law?

  1. Air Tanzania Holding Corporation is currently established under Air Tanzania Corporation (Reorganized and vesting of Assets and Liabilities) Act; 2001.
  2. Summary dismissal in Labour Law is the dismissal

without notice. It is invoked by the Employer when the employee is liable for a gross misconduct. Termination in Labour Laws refers the ending of contract of service. Either party to the contract of service has the right to terminate the contract upon giving notice or payment in lieu of notice.

Question: What do you understand by the following?

  • Arbitration. Do parties have power to choose an arbitrator? (b). Mediation.
    • Arbitration in Tanzania is governed by 2nd Schedule to Civil Procedure Code and Arbitration Act, Cap. 15. Arbitration refers the determination of a dispute by one or more independent third parties (arbitrators) rather than by a court. Parties have powers to choose an arbitrator. See Rule 2 of the 2nd Schedule to CPC.
    • Mediation is governed by the Civil Procedure Code as amended. It is a procedure by which the disputes are settled out of Court by trying to get parties reach agreement. The Mediator assist the parties to reach amicable settlement.

Question: (i) What do you call a person who died without leaving a will?

  • What do you call a person who died and left a will?
    • A person who has died without leaving the will is said to have died INTESTATE.
    • A person who has died and left the will is called TESTATOR.

Question: (i). What does A.D.R stand for? Which law governs A.D.R? (ii). Is A.D.R compulsory?

  • What is Scheduling Order in A.D.R?
  • The Abbreviation A.D.R, stands for Alternative Dispute Resolution. ADR is governed by the Civil Procedure Act.
  • Yes, A.D.R is compulsory.
  • The Scheduling order in ADR is the one that arises when the matter is rescheduled for another date following party or either party failure to appear or due to any other reason. Per Order VIIIA, Rule 3(2) of the CPC.

Question: A company which has been in existence for sometimes wants to alter its objects. What is the procedure:

If the company wants to alter its objects must comply with the procedure provided for in section 7 of the Companies Ordinance, Cap. 212. The procedure:

  1. The company must alter the subjects of the company by special resolution;
    1. The company must Petition the court for the confirmation of alteration; and
    1. Lastly, a certified copy of the order confirming the alteration, together with printed copy of the memorandum as altered must within 15 days from the date of the order be delivered to the Registrar of Companies for registration.

Question: (i). What do you understand by basic rights and what are the rights?

  • What is separation of powers?

(iii).     What distinguishes small mortgage from big mortgage?

  • Basic rights are provided for under Articles 12 -24 of the Constitution of the United Republic of Tanzania. The basic rights provided under the aforementioned Articles, include: 1). Right to life, as per Article 14;

2). Equality before the law, as per Article 13; 3). Equality of men, as per Article 12;

  • Right to work, as per Article 22;
  • Right to own property, as per Article 24; 6). Freedom of expression, as per Article 18.
    • Separation of Power refers the doctrine that provides that the liberty of the individual is secure only if the three organs of the state, Legislature, Executive and Judiciary perform their functions independently of one another. It is provided under Article 4 of the Constitution of Tanzania.
    • The following distinguishes small mortgages from big mortgages:

Term, small mortgages are for a period not exceeding three years. Amount; small mortgages involves the sum of money not greater than half a million shillings.

Question: What do you understand by Herbeas Corpus?

Hebears Corpus refers a prerogative order directed to a person who detains another in custody and commands him to produce or have the body of that person before the court. It is invoked only when the person are detained but not properties, as per provision of section 285 of the Criminal

Procedure Act and Adam Mwaibabile vs. R [1997] TLR 96.

Question: (i). Can you tell the Council the steps in winding up a Company and the applicable Laws?

The steps in winding up a Company are …………………………

(ii).     What do you understand by involuntary winding up and voluntary winding up?

1). Involuntary winding up refers to Compulsory winding up of the company. It may be initiated by creditors or contributories of the company or sometimes by the company itself by petitioning the Court for compulsory winding up.                                                                                 2).

Voluntary winding is governed by section 221 of Cap.212. it is opted when the creditors of the Company and other interested parties decide to settle their affairs in an amicable manner instead of taking up the matter before the court.

(iii).     Can you tell the Council the difference between a liquidator, a receiver, an official receiver and PCRC?

  1. Liquidator is the person who conducts the winding up of a company.
    1. Receiver is person appointed normally by the court to preserve and protect property that is at risk, to realize the assets or to collect the income for the benefit of those entitled.                              3). An official Receiver is the Official appointed by Court to act in Bankruptcy and winding up of companies. Section 178 of Cap.212 defines the official receiver for the purpose of winding up of

companies to mean official receiver appointed for bankruptcy purposes.

4).PSRC (Parastatal Sector Reform Commission) is an Organ established under section 21(1) of the Public Corporation Act, 1992 as amended by Public Corporations (amendments), Act 1993. It is charged inter alia with the formulation and execution of detailed plans for the restructuring of all specified public corporations.

Question: Can you tell the Council the difference between a notice of motion and chamber summons?

  1. Chambers Summons refers an application to the court drawn by the party. Once presented to court and signed by a registrar it becomes both an application and summons of the court. It applies in court below to Court of Appeal.
  2. Notice of Motion, is the manner in which the Court of Appeal is moved to determine an application made the party.

Question (i). How does a murder trial proceed?

There are 4 stages; and these are:

  1. Filing of information by the DPP or his representative as peer section 245(6) of Criminal Procedure Act.
  2. Committal of accused for trial by the court as per section 246(2) of the Criminal Procedure Act.
  3. Preliminary Hearing; as per section 192 of the Criminal Procedure Act; and
  4. Hearing.

(ii).     Can you explain what is preliminary hearing?

Preliminary Hearing is governed by the provision of section 192 it is a procedure in criminal case in which the court determine matters not in dispute as between the parties.

Simply is an accelerated trial.

Question: (i). Can you name 3 elements which the Plaintiff should prove against the Defendant in defamatory suit?

The 3 elements which the plaintiff must prove against the defendant on a defamatory suits are

  1. Words/Publication must be defamatory;
  2. Words/Publications must refer to Plaintiff; and
  3. Words/Publication must be maliciously published. (ii). What do a proxy power mean in Company Law?

Proxy Powers refers the power that a person (Proxy) have to vote on half of the Company member at company meeting. The proxy is appointed by Company member.

(iii).     What is Innuendo?

Innuendo are words that imply something indirectly, but may be clear to all right thinking people. There can be defamatory by innuendo. Example; Innuendo of drunkardness and the presence of a bottle of brand and obscene photographs in the motor vehicle which had an accident.

Note: Defamation in form of pictures and cartoon or in form of statement prima facie innocent by capable of defaming another person.

Question: (i). The High court has 3 divisions and one is the

Commercial Division. What are the other two divisions?

The two division of the High Court other than Commercial Division are:

1). Ordinary division of High Court; and 2). High Court Land Division:

Note: Labour Court Division of High Court is established by section 50(1 of the Labour Institutions Act, 2004

(ii).     Suppose the Parties to Arbitration disagree on. Who should be their Arbitrator, what happens.

Where the parties to arbitration disagree on who should be their arbitrator the Court may do the following;

1). It may on application of the party and after giving the other party an opportunity of being heard, appoint an Arbitrator or Umpire; 2). Alternatively, it may make an order superseding the arbitration, and proceed with the suit.

(iii).     Explain the following Plea, the accused says “it is not true” when a charge is read over to him?

The plea by the accused to the effect that “it is not true” after the charge has been read over to him is known as a plea of “Not guilty” The plea by using the words “it is not true” is complete in that it leave no room for doubt that he is denying the charge. The plea by using the phrases “it is not true” means that the accused is putting in issue everything that has been alleged against him, and thus, the prosecution should prove every fact and circumstances alleged against him, as per section 229 of the Criminal Procedure Act.

(iv).     Tell the Council what do you understand by LART?

LART refers an agent established under THE LOANS AND ADVANCES REALISATION TRUST Act, 1991 Cap. 248. It

manages non-performing assets on behalf of the banks and the government.

Question: (i) What is the Maximum number of person required to form a Bank?

The Maximum number of persons required to form a Bank is 50 persons.

(ii). What is statutory Management in Banking?

Statutory Management in Banking refers to the supervision or control by the BOT to the bank which does not conduct business in the interests of customers.

Question: (i). What do you understand by Charge sheet?

Charge sheet refers the legal document produced before the Court of law alleging that a particular person has committed an offence or offences. It is used to commence criminal cases in the Court of law. It is sometimes known as an information which is a legal document for commencing criminal cases in the High Court. It is the prosecution which is charged with the duty to draw appropriate charge or information.

(ii).     What are elements or contents of the charge sheet?

The elements or contents of charge sheet are:

  1. Particulars of the accused person(s). This gives the name, age, tribe or Nationality and address;
    1. Particulars of the offence(s) and law applicable;
    1. Particulars of the offence stating briefly offence alleged to be committed, act or omission complained of, date, time, place, name of victim (if any), property involved (applicable) and the mental element of the crime if required for commission of the offence; and

(d). Description of the person lying the charge i.e. his name, address, signature and the date the charge was prepared.

(iii).     What is duplicity?

The term duplicity means that the charge is double. A charge is said to be duplex where it contains two distinct offences in a single count.

Question: (i). What is limitation period in the application of a child?

The period of limitation for making application on affiliation of a child is twelve months. See section 3 of the Affiliation Act, Cap 278. Note:

1). Application for the same is made before District Magistrate.      2). Affiliation Order ceases when the child attains the age of 16 years or after the death of such child. See section 6 of the same Act.

(ii).     What do you understand by the law of limitation?

The Law of Limitation is a law which prescribe the periods or the time within which proceedings to enforce a right must be taken. Failure to bring the action within the period prescribed

in the law, bars the action. Eg. Suits for recovery of land must be instituted within 12 years.

  • Is there any special procedure in suing PSRC? There is no special procedure for suing PSRC.

(iii). What do you understand by the term appeal?

The term Appeal refers the remedy available to the aggrieved party by which a higher court in exercising its appellate jurisdiction, examines the decision of any inferior court. It is any proceeding taken to rectify an erroneous decision of a court by bringing it before a higher court.

Question: (i). Who is the infant under the law of adoption?

The infant under the law of Adoption is persons under 21 years but who is or was not marriage.

(ii).     What restrictions are in respect of an order for adoption?

The restrictions in respect of an adoption order are:

  1. Applicant must be of requisite statutory age. Not under 25 years of age.
    1. Both parents or guardian must freely and voluntarily consent;
    1. If infant is of the age to express himself/herself, must be willing and desirous of being adopted by applicant.
    1. if the applicant is married his/her husband or wife must consent to adoption of the infant.
    1. If the applicant is married must be legally married.
    1. Generally, a sole male applicant cannot except in special

circumstances adopt female infant. i.e. application by sole male applicant to adopt female infant is provided by section 4(2) of Cap.335.

Question: (i). How can you categorize the evidence typed in carbon copy?

Evidence typed on a carbon copy is categorized as Primary Evidence made by one uniform process.

(ii). What does settlement of Issues mean?

Settlement of Issue is governed by the provision of Order XIV of the Civil Procedure Act. It refers the procedure at 1st hearing of the suit in which the court frames and records the issues agreed to, by the parties. Be it noted however that, where parties do not agree on the issues, the court has duty to ascertain the issues , frame and record them.

Question: (i). Can you tell the Council the difference between the Contract of CIF and Contract of FOB?

Contract of CIF refers Cost, Insurance and Freight Contract. It is a type of contract for the sale of goods by which the seller agrees not only to supply the good but also to make a contract of carriage with a sea carrier, under which the goods will be delivered at the destination and a contract of insurance with an insurer to cover them while they are in transit. The seller performs his contract by delivering the relevant document to the buyer i.e an invoice specifying goods and their price, a bill of landing evidencing the contract of carriage, a policy of insurance etc. briefly thus,

contract of CIF is the contract in which a seller of goods does not only contract with the buyer for sale of goods but also enters into contract with the carrier for shipment of goods and insures the goods sold during sea transit.

FOB contract refers Free on Board Contract. It is the type of contract for the sale of goods in which the seller’s duty is fulfilled by placing the goods on board a ship. Unlike the CIF, the seller does not enter into contract of carriage nor does he insure the goods sold.

(ii).     What do you understand by Preferential Shares?

Preferential shares are shares in a company that are entitled to fixed rate of dividend payable in preference to the dividend on the ordinary shares. Preference shares are required to be made preferential as to capital otherwise they rank Pari passu with ordinary shares in a winding up. Preference shares are presumed to be cumulative, that is when no dividend is declared in one year, holders are entitled to areas if eventually one is paid.

Question: What changes were introduced in the Criminal Procedure Act, 1984 which was not in the Criminal Procedure Code?

The changes introduced by CPA which were not in the Criminal Procedure Code are:

  1. CPA empowers Ward Secretary or Secretary Village Council to issue warrant for arrest or summons requiring the person to appear before the court. See section 13 of CPA.
  • CPA requires the person under restraint to be treated with humanity and with respect of humanity. Provision of section 55 of CPA.
    • CPA provides for Preliminary Hearing; as per section 192 of the CPA.
    • CPA provides the right to remain silent to the accused. 5). CPA provides for the Compensation for injuries, loses or death resulting from assisting Police, Magistrates or any other officer for stopping commission of an offence or in arresting a person suspected to have committed offence. section 37 of the CPA.      5). CPA empowers the judge to take over and continue the trial commenced by the other. See section 299 of CPA.
  • CPA allows the accused to give evidence on oath – affirmation or not, but such accused is subject to cross examination. Provision of section 231(2) of the CPA.
  • CPA provides for requirement of notice before relying on defence of ALIBI; before hearing the case to furnish particulars of ALIBI; before prosecution a case is closed. See section 194(4) and (5) of CPA.
  • CPA restricts power of Courts to grant bail. See section 148(5) and DPP certificate refusing grant of bail.

Question: Can you tell the Council what you understand by Supervisory Power of the Courts?

Supervisory Power of the court refers the power conferred on a Superior Court to exercise its powers of supervision over the Subordinate Court. In exercise of its supervisory power, the superior court may call for and inspect records of

subordinate courts and give directions to such courts as it considers fit in the interests of justices.

For example; the High Court of Tanzania has Supervisory Power over Courts subordinate to it.

Question: (i). Can you tell the Council what we mean by the Rules of Natural Justice and what are these rules?

Rules of Natural Justice are the rules and procedure required to be followed by any person who adjudicates upon disputes between or rights of others. There simply rules and procedure required to be followed by the person determining the rights of the other. The rules of natural justice are:

  1. Rules against bias;
  2. No man is judge of his own cause; (nemo judex in causa sua) and
  3. The right to be heard/hear the other side (audi alteram partem)

(ii). What happens on a decision given on violation of the rules of natural justice?

The decision given in violation of the rules of natural justice is void, so, the aggrieved has a right to challenge the same by way of judicial ‘review’.

Question: (i). What do you understand by Mortgage? How many types of Mortgage do we have?

The Mortgage refers as intent in property created as a form of security for a loan or payment of a debt and terminated on payment of the loan and debt. The borrower i.e. mortgagor

may have the interest in the right of occupancy or lease. See section 2 of land Act No.4/1999. The types of Mortgage we have are:

1). Custoomery Mortgags; 2). Small Mortgages; and 3). Big Mortgages

(ii).     What is foreclosure?

Foreclosure is remedy available to a mortgagee when the mortgagor has failed to pay off a mortgage by the contractual date for redemption or taking possession of a mortgaged property as a result of default in mortgage payment – Note: See section 124 of The Land Act, No.

4/1999 Abolishes Foreclosure.

(iii).     What is Caveat-Emptor?

Caveat Emptor is a Latin Maxim meaning let the buyer beware. It is a warning to the purchaser of goods that he could not claim that his purchases were defective unless he protected himself by obtaining express guarantee from the vendor.

(iv).     What is consideration and when the requirement of consideration?

Consideration means an act forbearance or promise by one party to a contract that constitute the price for which he buys the promise of the other. In Tanzania consideration is defined in section 2(1)(d) of the Law of Contract Act, Cap.

433. The definition of consideration under the Law of

Contract Act, suggest that consideration is for the promise given and it may be in the form of an act and abstinence or promise.                     Note:

under Law of Contract Act, consideration must move from either a promise or any other person.

Requirements of Consideration are:

1). Consideration must be real i.e it must have something; 2). Consideration need not be adequate i.e Court will not interfere with bargain freely reached by the parties;

  • Consideration must move from promisee or (under the Law of Contract Act any other person);
  • Consideration must not be passed i.e. when one party has performed an act before other party’s promise was made/agreed; 5). Consideration must be illegal i.e. it must not be contrary to rue or immoral;

6). Consideration must not be vague, i.e the general rule is that, promise by a contracting party must be clear and definite; and 7). Consideration must possible of performance i.e. promise to do something which is impossible can not be binding.

Question: (i). What is pretrial Conference?

Pretrial conference is a procedure taken by the court in civil cases when the Pleadings are complete in order to determine whether the parties have new discoveries, new annextures, new applications and the number of witnesses intended to be called by such parties.

(ii). What happens if the defendant has failed to appear on the day

the suit was fixed for mediation; when dully served?

When the defendant has failed to appear on the day the suit was fixed for mediation after being dully served, the court will do the following:

1). It will Schedule the suit for another mediation date; and 2). The defendant will be dully notified of the other mediation date.

(iii). Is joint tenancy and tenancy in common still a good law in tanzania?

…………………………………………….

Question: Can you tell the Council what you understand by the doctrine of Precedent? And How does it operate in Tanzania?

The doctrine of precedent is a doctrine in which the judgments or decision of superior court are used as the authorities for reaching the same decisions in subsequent cases. In Tanzania the judgments or decisions of the Court of Appeal are binding upon the High Court of Tanzania and Courts subordinate there to and are normally followed by the Court of Appeal itself. Decisions of High Court of Tanzania are binding on inferior Courts or Courts subordinate to it.

Note:1). Decision of Courts subordinate to High Court do not create any binding precedent.

2). A Lower Court is not bound by all aspects of a previous decisions, but only those parts of the judgments that constitute the principle of the decision.

Question: (i). Which Court have the original jurisdiction on Probate

Administration matters?

The courts which have the original jurisdiction on Probate and Administration matters are:

  1. The High Courts;
  2. The District Courts; and 3). The Primary Courts.

(ii).     Is hearsay evidence admissible in law?

Generally under section 61 and 62 of the Law of Evidence Act 1967; hearsay evidence is not admissible. However, this general rule is subject to exceptions e.g. where the maker of the statement is dead or cannot be found. Read section 34 of the Evidence Act.

(iii).     What major principle which govern the Court in the decision for custody of children?

The major principle which governs the Court in the decision for custody of children is the Welfare of the Children. Section 125(2) of the Law of Marriage Act, 1971.

Note: other consideration are in section 125(2)(a)-(c) of the Law of Marriage Act, thus:

  1. Wishes of parents;
    1. Wishes of the child, if can express independent opinion; and 3). The Customs of the community to which parties belong.

Question: What do you understand in law on the following?

  • Information;

Refers to a legal document that initiates criminal proceedings in the High Court.

(b).     Committal Bundles;

It is a Transmission of records to the High Court on Criminal offences; See section 256 of the Criminal Procedure Act.

(c).     Testator;

Testator is a person who makes a will before he dies (d). Executor;

An Executor is a person appointed by will to administer the Testator’s Estate. A deceased property is vested in his executor, who is empowered to deal with it as directed by the will from the time of testator’s death. He must however, obtain a grant of Probate from the Court in order to prove the will and his right to deal with the Estate.

(e).      A floating charge;

A floating charge refers the charge created in respect of circulating assets; example: Cash or Stock in trade.

Attachment cannot be made in respect of circulating assets until crystallization i.e. until some events (e.g. winding up) causes it to become fixed.

(f).     Fixed charge;

Fixed Charges is charge attached to a specific item of property e.g. land. In other words it is a charge on specific property.

(g).     Common Law offences;

Common Law offences refer to the offence which is not created or provided by statute.

(h).     A liquidated Damage;

Liquidated Damages are a sum fixed in advance by the parties to a contract as the amount to be paid in the event of the breach. Liquidated damages are recoverable provided that, the sum fixed was fare pre-estimate of the likely consequence of the breach but not if they were imposed as a penalty.       Note:

Un-liquidated damages are damages the amount of which is fixed by the court.

Question: (i). Can the Court of Appeal of Tanzania review its own decisions?

Court Appeal can review its own decision. In the matter of an intended appeal between Sekulu Construction Company