Question: What is the relationship of a banker and Customer?

The relationship of a Banker and Customer is that of creditor and debtor. See Sheldon’s Practice and Law of Banking, pp 186-187.

Question: Define the Garnishee Order.

The Garnishee order is order of the Court, Obtained by judgment creditor attaching funds in the hand of third party who owes the judgment creditor money, warning the third party the garnishee not to release the money attached until directed by the court to do so. See Sheldon’s Practice and Law of Banking, page 195. (Simply: Garnishee Order is the Order of Court served on a Garnishee attaching a debt in his hands. Garnishee is a person who has been warned by a Court to pay a debt to a third party rather than to the owner). Notes: Banker and Customer – duty of secrecy. The guiding case on this subject is Tounier vs. National Provincial Bank (1923) in this case the court held that the banker’s obligation secrecy regarding his Customer’s affairs was a legal one arising out of contract implied in the relation of Banker and customer, but that the duty of secrecy is not absolute but is qualified. The Court cited the following qualifications as examples:                           a). where the

disclosure is under compulsion by law;                             b). where there is a duty to public to disclose;

c). where there is interest of the Bank require disclosure; and d). where disclosure is made by express or implied consent

of customer.

Question: What is a Composition of High Court when trying treason trial?

-The composition of a High Court when trying a treason trial is a single Judge sitting with 2 assessors. See Salum A. Kinongile vs. Republic [1992] TLR 349 pg. 351.

Question: What is the composition of Commercial Court?

-The composition of commercial Court is single Judge sitting with 2 assessors. However, assessors do sit with the judge at option of the parties. N.B. such assessors must

have the knowledge in area whose matter is before the Court.

Question: What Law does establish Commercial Court?

-Commercial Court was established by the High Court Registry (Amendment) Rules of 1999.

N.B. High Court Registry Rules, 1984 establishes High Court Registry.

Question: Mention five types of cases tried by Commercial Court.

-Commercial Court tries cases concerning

  1. Banking,
  2. Admiralty,
  3. Trade Marks,
  4. Insurance; and
  5. Commercial Contracts.

Question: What is the Composition of High Court when trying Homicide Cases in Tanzania?

The composition of High Court when trying Homicide Cases in Tanzania is single Judge sitting at least with 2 assessors. See Section 265 of Criminal Procedure Act Cap. 20 of [R.E 2002].

Question: What is a Composition of High Court when hearing defamation case under Newspaper Act.

The composition of High Court when hearing a defamation case under News paper Act is a single Judge sitting with at least 2 assessors. Check Newspaper Act Act. 1976 Cap 229 [R.E 2002]. Part VI section 38 to 47

Question: What is accelerated trial?

An accelerated trial is provided under section 192 of the Criminal Procedure Act. 185 Cap.20 [R.E 2002]. It has some meaning as preliminary hearing by definition; accelerated trial means a procedure in criminal cases in which the court determines matters which are not in dispute as between the parties.          N.B. The purpose of accelerated trial is to speed up the criminal trials.

Question: What are cases where the Courts sit with assessors?

–   Primary Courts – Magistrates in Primary Court. Court in Civil and Criminal Cases, that is, Primary Court Magistrate is required in Law to sit with assessors in all civil and

criminal cases see section 7 of Magistrate Court Act 1984 Cap. 11 [R.E 2002.

High Court: high court judges are required to sit with assessors in the following cases;

  1. Homicide
    1. Treason
    1. Defamation
    1. Economic crime cases Commercial Court:

The commercial Court Judge does sit with assessors. However, parties may agree the judge to sit alone since sitting with assessors depend on whether parties do consent or not.    N.B answer is not exhaustive see further discussion regarding RM’s Court and District Court. The Resident Magistrate with extended jurisdiction to try criminal cases triable by the High Court.

Question: Name different sentences that can be given to a person convicted of criminal offence.

Generally speaking, the type of punishment/sentence to be given to a person convicted of criminal offence in any case is determined by penalty provisions Example: Penal Code Cap. 16. As far as the Subordinate Court are concerned provides the following type of punishment/sentences

*Death; RM with extended jurisdiction

*imprisonment;

*Corporal punishment;

*Fine;

*Forfeiture;

*Payment of Compensation;

*Order of finding security to keep peace and be good of behavior;                                                       *Probation;

*Costs as per section 345 of Criminal Procedure Act. Cap 20;

*Police supervision

Notes: – The court may impose sentence other than that provided by                         statute see section 27(3) of the Penal Code Cap 16 that is a person liable to imprisonment may be summoned to pay fine instead of imprisonment.

The courts Power to sentence is provided by section 170 of The Criminal Procedure Act Cap. 20.

Also, the Court’s power to impose Corporal punishment is limited by provisions of the Corporal Punishment Act, Cap 17.

Question: How Residents Magistrates’ Court hears the Organized Crime Offences?

Generally offences under the Economic and Organized Crime Control Act, 1984 Cap 200 are tried by the High Court after the DPP Consents to be tried. However Courts subordinate to the High Court may hear Organized Crime offences if two things are done; thus:

  1. DPP like in the High Court must give consent for

prosecution of organized crime case per section 26 of Act No. 13 of 1984.

  1. DPP must issue certificate conferring jurisdiction to RMs’ Court to try Organized Crimes case as per section 12(3A) of Act No. 13 of 1984 as amended.                                                                  N.B Generally the jurisdiction to hear and determine economic crime cases is vested in high Court of Tanzania. See section 3(1) of Act No. 13 of 1984. The court sits as Economic Crimes Court per section 3(2) of the same Act. The constitution of the Economic Crimes Court is judge of the High Court and two lay members. See section 4 of the Act.

Notice: section 26 of the Economic and organized Crime Control Act, 1984 provides for the requirements of DPP consent before instituting criminal trials in respect of criminal offences. Section 26(2) of the same Act empowers DPP by NOTICE published in the Gazette to delegate some of his powers in this referred to State Attorney by specifying Economic offences which require his personal consent and those that can be consented by some State Attorney. By Government Notice No. 191/1984 the DPP reserved to his own consent the prosecution of offences specified in Part 1 of the Schedule to the Notice and delegated to State Attorney in-charge of the Zone or Region in which the Organized offence took place. The power to consent to prosecution of offences specified under Part 11 of the Schedule to the Notice. Examples are offences under The Wildlife Conservation Act do fall under the Schedule to Government Notice No. 191/1984.

Question: What Court will do under the following circumstances; a). witness take oath but refuses to give evidence.

b). Accused refuses to plea.

C). Accused retracts or repudiates his confession.

The witness who takes oaths but refuses to give evidence is known as refractory witness. If a witness having been sworn or affirmed refuses to answer any questions put on him the court will adjourn’ the case for a period of not more than eight days, and may in meantime commit such person to prison, unless he soon consents to do what he is require of him see section 199(1) of Criminal Procedure Act Cap 20. Be it noted that, the court will do so if the witness offers no sufficient excuse. Against if after adjournment, the witness continuous to refuse to answer questions put to him the case will be adjourned for a period not exceeding eight days and the witness will be committed to prison as per section 199(2) of the CPA. Alternatively the court may commit such witness for contempt of court under section 114(b) of Penal Code and be liable on conviction to imprisonment for six

months or a fine not exceeding (500/=) five hundred shillings.

Further discussion:- Other circumstances falling under refractory witness are in section 199 of the CPA and these are:

i). Where a witness refuses to be sworn or affirmed; or ii). Where a witness refuses or neglects to produce any documents or things which he is required to produce, or

iii). Where witness refuses to sign his depositions.

As to what writ could be applied in (i) to (iii) above, refer the

above discussion i.e. section 199(1) of the CPA and section 199(2) of the same will apply or alternatively section 114(b) of the Penal Code may apply.

(b). If the witness refuses the plea section 228(4) CPA, 1985 will apply. The section provides that if the accused person refuses to plead, the court is required to enter a plea of no guilty. However, before entering a plea of what guilty under section 228(4) of CPA the Court is required to hold an inquiry into accused’s refusal to plea or muteness in order to satisfy itself whether the accused stands mute out of malice or through the visitation of God. If it is found that the accused stands mute out of malice or refuse to plea, the Magistrate will enter a plea of not guilty’ and proceed to try the charge.

But where the accused does not plea to a charge or stands mute by the visitation of God, say, if he is deaf and dumb or is suffering from some decease of the mind or is so deaf that he cannot hear when the charge is read over to him such an accused person can, if he is sane, be tried if he can read or write or if intelligence can be conveyed to him by signs or symbols. See A Magistrates Manual by Justice Chipeta, page 32. (C). if the accused retracts or repudiates his confession the court is required to ascertain its reliability and, or seek corroboration.; the court of Appeal of Tanzania in Shihobe Seni & Another vs. Republic [1992] TLR 330 said that where confessions are repudiated then there is a need for ascertain their reliability and or seek corroboration.

But how ascertaining reliability of repudiated or retracted

confession can be done? It may be done by holding an inquiry for subordinate and trial within trial for high court.

And how can evidence corroborating repudiated or retracted confession can be sought?

*The Court may seek the evidence corroborating repudiated or retracting confession by ordering the prosecution to call witness corroborating repudiated or retracted confession.

Question: Who are excluded when High Court conduct trial within trial?

When the High Court conducts trial within a trial assessors are         excluded.

(ii). Why assessors are excluded when the High court conducts trial within trial?

Trial within trial involves only matters on point of matter of Law. It does not involve matters on point of fact that is why assessors are excluded when High Court conducts trial within trial. It would appeal also that assessors are excluded when High Court conducts trial within trial because the same may influence assessors’ opinion at the inclusion of hearing the main case.

Question: What Court should do when the convict of murder is pregnant woman?

Section 197 of the Penal Code Cap 16 provide for the punishment of murder that is, death sentence. The proviso to section 26(1) of Penal Code exonerates the pregnant

woman who is a convict of murder from death sentence. The Provision to the proviso to section 26(1) in the Penal Code provides that, where the Court is satisfied that the woman convicted of an offence punishable with death is pregnant such court shall pass on her a sentence of imprisonment for life instead of a sentence of death.

Question: Explain the following:

  • Suspended sentence (b). Omnibus sentence
    • Suspended sentence as per section 25(g) of the Penal Code is that mode of punishment that resembles that of conditional discharge. It arises in a case where an accused person is convicted of an offence other than that specified in Schedule VI in the Minimum Sentences Act, 1972 and no previous conviction is proved against such convicted person. If these two circumstances exist, the Court may pass a sentence of imprisonment but order that the whole or any part of it suspended for a period not exceeding 3 years on such conditions, such as costs or compensation be paid by the offender or otherwise as the court may specify in such order.
    • Omnibus sentence is a single sentence for all offences of which an accused person has been found guilt in a single trial.         Note: According to Justice   Chipeta in Magistrate’s Manual pages 140 to 141, it is wrong to pass Omnibus sentence where the accused person in convicted on two or more counts in trial because the sentence must be

passed on each count separately.

Question: Who are exempted from death Penalty?

*the following convicts are exempted from death penalty:

  • Pregnant woman. See proviso to section 26(1) Penal Code.A person who in the opinion of the Court is under eighteen years of age as per provision of section 26(2) of the Penal Code Cap. 16

What is the Certificate of delay?

*The Certificate of delay is the certificate of assurance of completeness of record of proceeding issued by registrar of High Court under the proviso to rule. Section 3(1) of Court Appeal Rules to a party who wants to appeal against the decision of High Court to Court of Appeal of Tanzania.

Question: What remedy is available when party is aggrieved by the award of Arbitrator?

*Arbitration is governed by 2nd Schedule to Civil Procedure Code, Cap 33. 1966 and the Arbitration Ordinance, Cap 15 R 1(i) of 2nd Schedule to CPC provides parties to any suit

interviewed may agree that any matter in difference between them referred to Arbitration. The parties under this sub rule are required to apply to Court for order of reference before

pronouncement of judgment.

Where the agreement to refer the matter to Arbitration should be filed?

Rule 1(1) and 17(1) of 2nd Schedule of CPC are to the effect that the application refer the matter in difference between the parties be filed in court having jurisdiction in the matter to which agreement related.

Correct answer: the decision of an Arbitrator is final and binds on the parties and persons claiming under them respectively. See the Arbitration Ordinance Cap 15.

Who appoint Arbitrator? Rule II of 2nd Schedule to Civil Procedure Code cap. 33 requires arbitrator to be appointed in such manner as may be agreed upon by the parties. However, the Court, has power to appoint Arbitrator in certain cases falling of under r. 5(1) (a)-(c) of 2nd Schedule to Civil Procedure Code.

What are grounds for setting aside the award of arbitrator?

*Generally, the award becomes void if the arbitrator the Umpire fails to consider it after having been remitted to either of the two. But the award will only be set aside on the following grounds falling under r.15 (1) (a)-(c) of 2nd Schedule to CPC, namely:

  1. Where the arbitrator or Umpire becomes corrupt or misconducts of himself;
  2. Where either party to arbitration fraudulently conceals any matter which is required to be disclosed to arbitrator or Umpire or either party willfully misleads or deceives the Arbitrator or Umpire; and
  • If the award is made after the Court issued the order superseding Arbitration and proceeded with the suit or if the award is made after the expiration of the period allowed by the Court or being otherwise invalid.

What happens where an award becomes void or is set aside?

r. 15 (2)of the 2nd Schedule to Civil Procedure Code Cap.33 provides that when the award becomes void or is set aside the Court is obliged to make the order superseding the arbitration and to proceed with the suit. Decision of an arbitrator is to award and binding no only to parties but to persons claiming under them respectively.

And as regards to the question on the remedy available for a party aggrieved by the award of arbitration the Civil Procedure Code is silent. Since the decision of the award of arbitrator is under r.21 (1) pronounced by the Court which made the order of reference to arbitration to follow therefore that the party aggrieved by award of arbitrator may prefer appeal to the High Court. However after the judgment in respect of award is pronounced by the Court no appeal will be entertained from the decree except where such decree is an excess of or not in accordance with the award. See sub rule (2) of rule 21 of the 2nd Schedule to Civil Procedure Act Cap. 33. Also read section 74 of CPC

Question: What is probation?

Probation orders are governed by the Probation of Offenders Act, Cap 247 of the Revised Law and Provisions of section 337 of the Criminal Procedure Act, Cap 20. Probation order

is defined by section 2 of Cap. 247 to mean probation order made under the provisions of the Ordinance placing the people under the supervision of a probation officer.

Notes: Probation officer is defined under section 2 of Cap 247 to mean probation officer appointed under the provisions of section 15 of the Cap. 247. Section 3 of the Cap 247 provides that where a Court after convicting a person of an offence other than the offence specified under the schedule to the Minimum Sentences Act, 1972, and it is of the opinion that having regard to youth character, antecedent, home surroundings, health or mental condition of the offender, or the nature of the offence, or any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, such Court may make probation order at its discretion. Section 4(1) of

Cap 247 provides that Probation Order must be for a period of not less than one year and not more than three years.

Question: What is approved School Order?

Approved School Order is an order committing the offender to an Approved School, this mode of punishment is only available to Children and Young Persons.

Note: section 2 of Children and Young Persons Act, Cap 13 of Revised Laws defines Approval School.

Question: What is Preliminary Objection?

It is an Objection raised by party to a case or an application on matters of Law or procedure before the hearing or

determination of the main case or the application.

Question: What is Objection Proceedings?

*Objection proceedings are governed by O.XXI, r. 57 of the Civil Procedure Code, Cap. 33. Objection proceedings is a proceedings filed by a person who is not a party to a suit or not judgment debtor opposing the attachment of his property for the purpose of satisfying the decree.

Note: Where the Objection proceeding has been an unnecessarily or designedly delayed the Court cannot make investigation regarding objection proceeding. See the proviso to O. XXI. Rule                            57 of

the CPC. If after the investigation of the objection proceedings the court is satisfied that the property was wrongly attached, it may make the order releasing the property wholly or to such extent as it thinks fit from attachment as per rule 59, OXXI of CPC.

Question: Tell the Council three modes or Methods of Executing Money decree.

Three methods or modes of executing money decree are provided for under O.XXI, Rule 28 of CPC and these are: i). Detention of judgment debtor as Civil prisoner;

ii). Attachment of judgment debtor’s property; and iii). Sale of his property.

Question: What do you understand by the following terms: i). Conditional discharge

  1. Concurrent Sentence and Consecutive Sentence.

The difference between the two.

Conditional discharge is governed by provisions of section 38(1) of Penal Code Cap 16. It is a discharge of person convicted of an offence by the order of the Court subject to the condition that he commits no offence during such period, not exceeding twelve months of the Order. It is ordered by the Court if it is of the opinion that having regard to the circumstances including nature of the offence and the character of the offender it is in expedient to inflict punishment and that a Probation Order is not appropriate.

Note: Simply, it is the Order of the Court discharging a person convicted of an offence subject to the condition that he commits no offence during such period, not exceeding 12 months of the order. Absolute discharge is also provided under section 38(1) of the Penal Code. It is Ordered where the person convicted of an offence is discharged by court order absolutely is without attaching condition, that he commits no offence during such period no exceeding twelve months of the Order.

Concurrent Sentence means sentences Ordered by the Court to be served together. That is sentences after the other.

Concurrent sentence is ordered by the Court when offences are committed in course of the same transaction. See words of Love, J., in Republic vs. Kassongo s/o Luhogwa, 2 TLR (R))

47.                                                          Note: Sentences of fine

must not be ordered to run concurrently. They must always run consecutively.                                                                                                       (ii).

Sentence of imprisonment in default of payment of fine

must always be ordered to run consecutively and not concurrently. See Chipeta J. in Magistrate’s Manual, page 143.

Consecutive Sentences means sentences ordered by the Court to run one after the other. Consecutive Sentence is ordered where offences committed do not form part of the same transaction. Note also: The difference between concurrent consecutive sentences are discussed in Elias Joakim vs. Republic 1992 TLR 20 pg. 226.

Question: (i). What do you understand by the term ADR? (ii). What advantages are there in ADR?

  • Is ADR part of our Law or practice?

(i). The term ADR means Alternative Dispute Resolution. It is conducted after the Civil Suit has been instituted in Court but before commencement of hearing. It aims at resolving the dispute as between the parties to Civil Suit before hearing parties and their witness.

  1. Advantages of ADR are:

it serves costs of litigation;

it saves the time i.e. it is less time consuming; and it promotes friendliness as between the parties.

  1. ADR is currently part of our law because it is mandatory under the Civil Procedure Code.

(as amendment of the first Schedule) Rule, 1999

Question: What is refractory witness?

*Refractory witness is governed by provisions of section

199(1) of Criminal Procedure Act.

-Refractory witness is the witness who falls under the following cases, namely:

  1. A witness who without sufficient excuse refuses to be sworn or affirmed; or
  2. A witness who having been sworn or affirmed refuses to answer any question put to him; or
  3. A person who without sufficient excuse refuses or neglects to produce any document or thing which he is required by court to produce, or

IV). A person who without sufficient excuse refuses to sign his depositions.