What do you understand by the term Revision?

Revision is governed by the provisions of section 79 of Civil Procedure Act. It is the act of Superior Court to exercise its supervisory powers over Subordinate Courts for instance: The High Court has power under section 79 of the CPC to call for the record of any case which has been decided by any Court subordinate to it and in which no appeal lies thereto. The High Court can do so on its own motion or on application by any aggrieved party.

Note: Grounds for Revision under section 79(1)(a) to (c) are:

(a). If subordinate Court exercise jurisdiction not vested in it by law; or

(b).If subordinate Court fails to exercise jurisdiction vested in it; or

(c). If in exercise of its jurisdiction the Court act illegally or with material irregularity.

Question: What do you understand by objective and subjective part of evidence:

Subjective part of the evidence is the evidence which when considered by more than one person different conclusion can be drawn as to its credibility, while;

Objective part of evidence is the evidence which is weight, that is, more than one person can draw the same conclusion.

Note: Subjective Part of evidence is evidence that introduces the existence of a fact in issue. Whereas, Objective part of evidence is the evidence that proves existence of a fact in issue.

Question: In Probate proceedings, after a caveat is filed how do the proceedings proceed?

Proceedings subsequently to the filling of caveat are governed by section 59 of the Probate and Administration Ordinance, 1961, Act No. 35/1961. Proceedings shall not be taken on petition for probate or letters of administration after caveat is filed against either of the two. A person who petitioned for grant of Probate or letters of administration will be required to apply for the issue of citation to caveator

calling upon him to state within a specified time whether he supports the grant of probate or letters of administration to the petitioner and if, he does not, require him to enter an appearance to the petition. If the caveator enters appearance, the court shall proceed with the petition in accordance with the provision of section 52(b) of the Act. i.e. the proceedings shall be dealt with as if it is a suit that is, petitioner will be plaintiff and the person opposing proceedings will be defendant.

(i).    What is Summary Procedure?

Summary procedure is governed by the provisions of order XXXV of Civil Procedure Act. It is the procedure intending to empower a plaintiff with liquidated claim i.e. a claim for specific amount of money to obtain judgment without an unnecessary delay. Under summary procedure, the defendant has no automatic right to appear and defend his/her case. If the defendant wants to defend summary procedure suit, he must apply for leave to so defend. The leave will only be granted if the application for leave discloses that there is triable issue or stable and arguable case.     Note: summary procedure suit may be instituted under any of the circumstances falling under Order XXXV, Rule 1, (a) to (f) and these are:

a). Suit upon bill of exchange or promissory notes; b). Suits for recovery of income tax;

c). Suits arising out mortgage, whether legal or equitable; d). Suits by TANESCO for recovery of meter rents, charges for supply of electricity etc.

  • Suits for recovery of rent, interest or other debt due to Republic, Government authority; and
  • Suits for recovery of immovable property not protected under Rent Restriction Act, and suits for the recovery of rent; mesne profits or damages for unlawful occupation in respect of such immovable property, building or premises.

(ii).     What is third party notice?

Third party notice is a governed by Order 1 rr.14-23 of the Civil Procedure Act. The third party procedure is the procedure under which a party who is not an original party to the proceedings is brought into the suit by defendant on the ground that in case the defendant is found liable, such third party will have to contribute or indemnify the defendant.

Third party notice is applied for by the defendant. In order the same to be applied for, the defendant must make sure that he claims contribution to indemnity from third party. Again, the claim for contribution or indemnity from third part should be in respect of the defendant’s liability to the plaintiff; that is, third party will be properly joined if the wrongful act arises from the same cause of action as that of plaintiff against the defendant.

(iii).     What is interpleader suit?

Interpleader Suit is governed by section 63 and Order XXXIII of the Civil Procedure Act. Interpleader suit is a suit in which

a person who has no interest in the subject matter of dispute other than claims for his charges or costs, institutes a suit for the purpose of enabling the court to determine the rightful claimer as between more than one claimer.

Interpleader suit is commenced by filing a plaint. Such Plaint must disclose facts showing that the plaintiff has no any interest in the subject matter save for charges or costs, it must also show that the defendants have competing claims among themselves severally and the same must also show that there is no collusion between plaintiff and any of the defendants. N.B. Interpleader order is issued at the discretion of the Court. See Sargeant vs. Gautama [1967] EA 338.

(iv).     What is representative suit?

Representative Suit is governed by O.1 rr.8 of Civil Procedure Act. It is instituted when there are numerous persons having the same interest in one suit. The person or persons who want to sue or be sued or defend the suit on behalf of or for the benefit of all persons having some interest in the suit, should apply for leave to institute Representative Suit. That is to say, under O.1 rr.8 representative suit cannot be entertained unless and until leave for instituting the same is granted by the court.

(v).     What is the procedure for filling summary suit?

Procedure for filing Summary Suit is governed by the provision of O. XXXV rr. 2 and 7 of the Civil Procedure Act. The procedure for filing summary procedure suits is the same as the procedures in suits instituted in the ordinary manner. O. XXXV, rr.2. However, requires summary procedure suits to be instituted by presenting the plaint in the usual form but endorsed “Order XXXV: Summery Procedure”

Question: What is the disciplinary Procedure against a Judge of High Court and the Judge of Court of Appeal?

The disciplinary procedure against the judge of High Court is provided for under Article 110 of the United Republic of Tanzania Constitution, 1977. The procedure is a follows: firstly, the president will under Article 110(6) (a) of the Constitution appoint a Commission of Inquiry head by chairman and at least two members. The chairman and at least half of the members must be judges of the High Court or Court of Appeal from any Commonwealth Country.

Secondly, the commission will inquire into the matter and prepare a report in which it will advice the president to remove the judge from office or not. See Article 110(6)(b) of the Constitution. Thirdly, if the commission advises the president that the judge be removed from office, then such judge will be removed from office by president. See Article 110(7) of the Constitution. And the disciplinary procedure against the judge of Court of Appeal

is provided for under Article 120(5) of the Constitution of the United Republic of Tanzania, 1977. The disciplinary procedure against the Judge of Court of Appeal is as the same as that against the Judges of the High Court.

Question: What is quorum of Court of Appeal of Tanzania or when can we say the court is proper?

The Court of Appeal properly is constituted when at least 3 judges of Court of Appeal preside over the matter. This is per Article 122(1) of Tanzania Constitution.

Note: decision is based on majority opinion. See Article 122(2) of Tanzania Constitution – according to Article 118(1) of Tanzania constitution, the full bench of Court of Appeal is at least 5 Justices of Appeal.

Question: What is remedy of the party aggrieved by the decision of single justice of Appeal?

According to article 123 of the Constitution of the United Republic of Tanzania, 1977 a person aggrieved by the decision of single justice of appeal will refer the matter to Court of Appeal where it will be heard and determined.

Normally, it will be heard and determined by 3 justice of Appeal.       Note:

According to Article 123 of the Tanzania Constitution, a single justice of appeal has no power to determine the appeal preferred to Tanzania Court of Appeal.

Question: Define Corona?

Is an official with the duty of inquiring into the manner of

death of any person who is slain or dies in suspicious circumstances, or in prison?

See Osborn’s Concise Law Dictionary 6th Edition. In other words, a coroner is the official who discovers the manner of sudden, suspicious or violent death by holding an inquest.

Question: What is Inquest?

It is an official inquiry held by a Corona to find out the cause of death which has happened unnaturally. According to Osborn’s Concise Law Dictionary, 6th Edition, the term Inquest means an Inquiry held by Corona as to the death of a person who has been slain, or has died suddenly, in prison, or under suspicious circumstances.

Question: Telll the Council the meaning of:

  • Insurance agent?

The term Insurance Agent is defined in section 3 of the Insurance Act, 1996, Act no. 18/1996 to mean a person who solicits applications for insurance, collects money s by way of premium and may issue insurance cover on behalf of Registered Insurer in accordance with his Agency agreement.

(ii).     Insurance Broker?

The term Insurance Broker is defined in section 3 of the Insurance Act, 1996. Insurance Broker is a person or Limited Company whose job is to transact insurance business e.g. to bring together person seeking insurance of reinsurance of risks, carry out work preparatory to the conclusion of contracts of insurance or reinsurance and in event of claim,

may assist in administration and performance of contract. Note: Insurance Broker works with complete freedom and is not an Agent of the Insurer.

Question: What do you understand by the following? (i). Confession

Confession is statement made by person charged with crime admitting to be guilty. It is an admission of guilty made to another by a person charged with a crime. It is admissible in court only if free and voluntary i.e. if it is not forthcoming because of any inducement or threat held out by a person in authority. It must not be made under hope of reward (other than spiritual) or fear of punishment in related to the proceedings. The onus of proof that confession was voluntary is in the Republic. See DPP vs. Lin[1975] 3 WLR 419.

(ii). Admission

Admission refers statement, oral, written or inferred from conduct, made by or on behalf of a party to a suit and admissible in evidence, if relevant, as against his interest. Admission is either formal or informal.

Note: Formal admission for purpose of trial may be made on pleadings e.g. where a contract and breach are admitted.

Informal admission may be made before or during the proceedings. In criminal proceedings admission may be by plea of guilty, by a statement of facts by the accused, or in the form of a confession. Note also that: Admission are governed by Part II of the Evidence Act, 1967 whereas

confession are governed by Part III of the Evidence Act, 1967.

Question: What do you understand by:

  • General damages

General damages are damages that are compensatory in nature intended to take care of Plaintiff’s loss of reputation as well as act as salatium for mental pain and suffering. See Haji Associates Co.Ltd & Another vs. John Mlundwa [1986]

107. General damages are that kind of damages which the law presumes to follow from the wrong complained of, and which there for need not be set out in the plaintiff’s pleadings. e.g in case of personal injury resulting from negligent act, general damages may be recovered for pain and suffering injury to health and personal inconvenience. See Osborn’s Concise Law Dictionary.6th Edition pgs 156-157.

(ii).     Special Damages

Special damages are that kind of damage that are not presumed by law. They must be expressly pleaded and proved.

(iii).     Punitive Damages

Punitive damages are awarded not only by way of compensation, but also as a punishment to offender. They are exemplary or vindictive awarded not merely as pecuniary compensation for the loss actually sustained by the Plaintiff

but also as a kind of punishment of the Defence with view of discouraging similar wring in future. See Angela Mpanduji vs.

Ancilla Kilinda[1985] TLR 16 (iv). Mitigation of Damages

Mitigation of damages refers to steps taken by Plaintiff in order to reduce damages. The defendant can not be liable for acts which the plaintiff failed to take steps to mitigate. Note: Generally, it is the duty of the party whose legal rights have been infringed to act reasonably in mitigation of damages.

(v). Duplicity.

Duplicity means that the charge is double. A charge is said to be duplex where it contains two distinct offences in single count. e.g. a charge alleging the commission of burglary and house breaking.

Question: what do you understand by the following terms? (         i). Corroborated Evidence.

Corroborated evidence is the evidence which is confirmed or supported by another piece of evidence.

(ii).     Corroborating Evidence

Corroborating evidence is the evidence that confirms or supports another piece of evidence.

Note: Evidence supposed to be corroborated should be sufficient, satisfactory and credible. See Azizi Abdallah vs. Republic [1991] TLR 71

(iii).     Nominal Damages

Nominal damages are damages that are of tritling amount awarded contemptuously or for the mere invasion of right without damage. See Osborn’s Law Dictionary 6th Edition pg.

109. Note: Nominal damages are damages for less sum of money awarded when legal right has been infringed but no substantial loss has been caused.

(iv).     Contributory Negligence

Contributory negligence means the failure by the plaintiff to meet the standard of care required of him to conform with his safety. It is the failure by plaintiff to take care of his own safety. That is to say the plaintiff himself contributes towards the commission of the wrong done by defendant to him.

(v).     Remoteness of Damages

Remoteness of damage refers damage which results from an act of the defendant, but which cannot be said to be caused by him. The Plaintiff is not entitled to recover compensation when the damage caused to him by defendant’s act is too remote.

Question: Can you tell the Council what you understand by the following terms:

  • Strictly Liability

Strictly Liability is the liability without fault. That is where a man acts at his own peril and is responsible for accidental harm, independently of the existence of either wrongful intent or negligence. In criminal law, it is the liability without mens rea. e.g. in liability for the escape of dangerous things.

(ii).     Vicarious Liability

Vicarious liability is the liability of the master for the torts committed by his servant in the course of his employment.

(iii).     Occupies Liability

Occupies liability is the duty of the occupier of premises towards the one who lawfully visits his premises. The liability of the occupier is not only limited to premises, that is, liability extends to occupiers of vehicle. In Tanzania, occupiers liability is governed by Occupiers Liabilities Act, 1968.

(iv).     Corroboration

Corroboration is an independent piece of evidence which implicates a person accused of a crime by connecting him with it. It is the evidence which confirms in some material particular not only that the crime has been committed, but also that the accused committed it.

(i).    Can you tell the Council the ingredients of valid Contract?

Ingredients of valid contract are provided for section 10 of

Law of Contract Act, Cap 433, these are:

*free consent;

*Competency or capacity to contract;

*Lawful consideration and lawful object

(ii).     What are the remedies for the breach of contract?

The remedies for breach of contract are:

Damages – here a party is compensated for loss suffered owing to breach of contract.

Restitution – here innocent party claims back his performance or its reasonable value.

Specific Performance – here the court orders Defendant to do according to terms of contract.

Rescission – the Plaintiff may seek to rescind the Contract. Quantum Meruit – Payment of so much as the party doing the work deserves.

Apart from specific performances another specific relief is injunction.

(iii).     What is misrepresentation?

Misrepresentation is defined in section 18(a)-(c) of Law of Contract Act. It is misstatement of a fact(s) material to the contract. It is a statement or conduct which conveys a false or wrong impression.

Question: (i). What is the difference between primary and secondary evidence?

The difference between primary and secondary evidence is that: Primary Evidence is defined in section 64(4) of Evidence Act. It means document itself produced for inspection by court. It means document itself produced for inspection by court. Primary evidence must be generally be produced in court.

Secondary Evidence is defined in section 65 of the Evidence Act; it is a copy of original document. Secondary evidence is only produced in court in exceptional circumstances.

(ii).     How do you distinguish between secondary from primary evidence?

Secondary evidence may be distinguished from Primary Evidence by inspecting or checking Secondary Evidence against Primary Evidence.

(iii).     Under what circumstances secondary evidence is admissible in evidence?

Secondary evidence is admissible in circumstances provided for under section 67 of the Law of Evidence Act, 1967 and these are: *When original document appears to be in possession of power of a person when the document is sought to be adduced against;                                          *When existence, condition or contents of original document are admitted in writing by person against whom it is proved or by his representative in interest;

*When original document has been destroyed or lost or when or when it cannot be produced in reasonable time;

when original document is of such a nature as not to be easily movable;                                                          *When the original is public document within the meaning of section 83 of the Law of Evidence Act.

*When the original document is of which certified copy is permitted by The Law of Evidence Act or any written law to be produced in evidence; and

*When original when original consist of numerous accounts or other documents that cannot be conveniently examined in Court, and fact to be proved is the general results of whole collection.

Question: Can you tell the Council what is extradition and what is the law which governs extradition?

Extradition means the delivery up of a person who has committed a crime in one country by the authorities of another country in which he has taken refuge, to the authorities of the country where the crime was committed. Extradition proceedings cannot be taken against the criminal unless an extradition treaty has been concluded with the foreign state concerned.           *In

Tanzania extradition is governed by the Extradition Act, 1965

Question: Briefly explain the following:

(i) A trustee in Bankruptcy

A trustee in bankruptcy is a person whom the property of a bankrupt is vested in trust for the creditors. His duty is to discover, realize and distribute it among the creditors. He is also required to examine the bankrupt’s property, accounts

etc, to investigate profits made by the creditors, and to admit, reject or reduce them according to circumstances.

(ii).A receiver

A receiver is a person appointed by the court on interlocutory application, to receive the rents and profits of real estate, or to get in personal property affected by proceedings in lieu of the person then having the control of property and to protect such property until the right of parties have been ascertained.

(iii). A détente

A détente means lessening of international tension. It is an improvement in the relationship between two or more countries which have been unfriendly towards each other in the past.

Question: Define the following; (i).Rules of Natural justice

Rule of natural justice refer to rules and procedure required to be followed by any person or body charged with the duty of adjudicating upon disputes or determining the rights of others e.g Government Department.

Note: the chief rules are to act fairly, in good faith, without bias, and in judicial temper; to give each party opportunity to be heard and to avoid hearing one side behind the back of the other.

(ii).     Prerogative Orders:

Prerogative orders are the orders granted by superior Courts

for the purpose of preventing inferior courts or public Officials or Public Bodies from exceeding the limits of their legitimate sphere of action, or of compelling them to exercise their functions in accordance with the law.

(iii).     Human Rights:

Human Rights means, rights and freedom to which every human being is entitled. Some human rights are so fundamental that they form part o natural law. Most of them however, do form part of treaty law.

What is the doctrine of recent possession?

The doctrine of recent possession means that where a person is found with a property recently reported; stolen, that person may be held to have stolen it. The possessor of the property recently reported stolen is regarded either as the actual thief or a guilty receiver.

Note: The doctrine of recent possession is not provided for in the Penal Code Act, Cap. 16. It was developed by our Courts under section 114 of the Indian Evidence Act, 1872 now section 122 of the Evidence Act, 1967.

Question: what do you understand by:

  • Bail

Bail is the release by the police or court of an accused person held in legal custody while awaiting trial or appeal against criminal conviction. Bail is always granted upon

fulfilling certain conditions e.g. executing the bond with sureties.   Note:

Bail is the release of accused person pending trial or appeal.

(ii).     Identifying witness

Identification witness is the witness who proves the identity of a thing or person accused of committing a crime.

(iii).     Transferred Malice

Transferred Malice refers to a situation whereby a person intends to commit a crime against one person but in fact commits the same crime against another person.

Question: (i). Can you tell us the essential elements of a valid will.

The essential elements of a valid will are:

*Testator must have testamentary capacity when the will is made;  *Will must be witnessed and attested by witness;                           *The will must be signed at the foot by testator; and                                            *The will must direct the manner in which the properties are to be distributed to the beneficiaries.

(ii). Can a person amend a will after he made it?

The will can be amended after being made; it can be amended by executing codicils or duly executed alteration.

Question: What do you understand by; (i). Extended Jurisdiction

Extended jurisdiction is governed by the provisions of sections 243- 246 of the Criminal Procedure Act. Extended jurisdiction refers the powers conferred on Resident Magistrate, by the Minister for Legal Affairs to try category of cases ordinarily tried by the High Court. See also section 45 of Magistrate Court Act.

(ii).     Committal  Proceedings:

Committal proceedings are governed by the provisions of sections 243-263 of the Criminal Procedure Act. Committal Proceedings is defined by section 2 of the Criminal Procedure Act to mean proceedings held by subordinate court with a view to the committal of an accused person to the High Court according to section 244 of the CPA. Committal Proceedings may be necessitated by two factors, namely that the offence charged is not triable by Subordinate Courts or the DPP is of the opinion and advises the court accordingly that, the offence charged is not suitable to be determined in the subordinate court upon summary trial.

Question: Can you tell the Council the powers of DPP and mention under what Law the powers are found?

The powers of DPP are governed by the provision of section 90(1)(a)-(c) of the Criminal Procedure Act, also read article 59B of the Constitution of the United Republic of Tanzania, 1977 and section 2 of the Office of the Attorney General

Discharge of Duties Act, no. 4/2005 and these are:

  • To institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed by that person;
    • To take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority; and
    • To discontinue any such criminal proceedings instituted or undertaken by him or any other authority or person.

Question: What do you understand by the following: (i). Deed Poll?

Deed Poll refers a deed to which there is only one party. For example, one declares change of name. It is a unilateral deed.

(ii). Power of Attorney.

Power of Attorney refers a formal instrument by which one person empowers or authorizes another to represent him, or act in his stead for certain purpose.

Caveat:

Caveat means let him beware. It is a notice that is filed in the offices of Registry or Court to prevent a certain step being taken without previous notice to the person entering the caveat (who is called the caveator) e.g a person having or

claiming an interest in the deceased estate may enter a caveat to object the grant of probate or letters of administration.

Question: What is an Injunction in law and what Law governs injunction?

Injunction is a remedy in the form of Court Order or Decree by which a party to an action is required to do, or refrain from doing a particular thing. Injunctions are either restrictive (preventive) or mandatory (compulsive). As regards, time, injunction are either interlocutory (interim) or perpetual.

NB: Perpetual injunction is granted after the plaintiff has established his right and there is say, continuing breach by defendant whereas interlocutory injunction may be granted pending the outcome of the main hearing of the case.

Injunction is governed by the Civil Procedure Act R.E 2002 under the provision of Order XXXVII.

Question: (i). Would you mention five legislation connected to Labour matter:

Five legislation connected to Labour matters are:

*The employment Act; Cap. 366

*Security of Employment Act, 1964

*Industrial Court Act, 1967

*Severance Allowance Act, 1962

*The Workmen’s Compensation Ordinance, Cap. 263.

Note: The new Labour Laws which have repealed and replaced former laws are the Labour Relations Act, 2004; and

the Labour Institution Act, 2004

(ii).     Tell us which organ deals with Labour disputes.

The organ which deals with Labour disputes is known as Industrial Court.

(iii).     Is the decision of the Industrial Court appealable?

Section 27(1)c) of the Industrial Court Act, 1993 provides that every award and decision of Court is final and shall not be liable to challenged, reviewed or called in question by any other court. However, according to the same provisions matters on grounds of lack of jurisdiction by the Industrial Court are required to be referred to High Court and the same should be heard and determined by full bench of High Court.

Question: Can you tell the Council what is attachment before judgment and what is the Law governing attachment before Judgment?

Attachment before judgment is the order of the Court requiring the defendant to furnish security in such sum of money as may be specified by the Court or property or sum of money equivalent to value of property. Attachment before the Judgment is ordered when it appears that the defendant is about to dispose or to remove the whole or any part of his property from the local limits of jurisdiction of the Court.

Attachment before Judgment is governed by Order. XXXVI rr.6 – 13 of the Civil Procedure Act.

Question: Briefly tell the Council what the following mean under

Company:

(I). Equity Shares

Equity shares refer to shares whose share holders are not entitled to be paid fixed amount of interest.

(ii). Share certificate.

Share Certificate is an instrument under the Seal of the Company; certifying that the person therein named is entitled to a certain number of shares. In other words; share certificate is a document issued by the company evidencing that a named person is the company member and stating the number of shares registered in his name and the extent to which they are paid up. Share Certificate is not negotiable. NB: Share Warrant is a Certificate under the Seal of the Company.

Question: (i). What is the status of the opinion of the assessors in Homicide cases?

In homicide cases the judge can disagree with unanimous views or opinion of the assessors. However, he is required to give reasons for so disagreeing. See Abdalah Bazamiye & others vs. Republic [1990]TLR 42, pg 45 decide by Court of Appeal.

(ii).     Cases where the Court sits with assessor.

Primary Court Magistrate sits with assessors in Civil and Criminal cases per section 74(1) of the MCA, 1984.

RM’s & District Courts:

Where Rules of Customary or Islamic law is in issue or relevant the courts may and when directed by an appropriate judicial authority sits with an assessor or assessors, see section 7(3) of the Magistrate Court Act. RM’s Court sits with assessors when determines cases under the Economic and Organized Crime Control Act, 1984.

High Court.

High Court sits with assessors in Homicide cases, Economic crime cases, and treason and defamation cases under the News Paper Act, 1976. Section 265 of CPA says that all trials

i.e. criminal cases should be with aid of assessors whose

member must be two or more as the court think fit.

Commercial Court:

The court sits with assessors in all cases.

Industrial Court:

The court does sit with assessors in all cases

Section 39 of Act no. 2 of 2002 provides that the appeals to High court Land Division be heard by Single Judge sitting with two assessors. See also the High Court Registries (Amendment) Rules, 2001.

Question: What is the Procedure for registering Foreign Company in Tanzania?

The procedure for registering foreign company in Tanzania is governed by the provisions of section 320A and 321 of Cap. 212 and these are:

(i). The Company must apply for and obtain approval of

registrar to establish a place of business in the country. (ii). The company must within one month after establishing business in Tanzania deliver to the registrar the following:

  • A certified copy of the charter, statutes or Memorandum & Articles of Association or other instrument constituting or defining the constitution of the Company and if the same are not in English, a certified translation thereof;
    • Full address of registered of registered or principal office of the Company.
    • A list of directors and their particulars as required by Cap

212. *The names and address of person(s) residing in Tanzania authorized to accept process of Notices on amount of shares.

Question: (i). Can you tell the distinction between Official Receiver and Receiver Manager?

Official Receiver is the officer appointed by the court to act in Bankruptcy and in the winding up of Companies.

According to section 178(1) of Cap. 212, official receiver in matters relating to winding up of companies by Court means the officer appointed for bankruptcy purposes.

*And Receiver Manager is the person who is appointed to manage the business of the company which is no longer carrying on business profitably.

(ii).     Who is a Liquidator?

A liquidator is a person appointed by the court to carry out the winding up of company. See section 182 – 195 of Cap.

212.                              NB. His duties are: To realize the

property of the company,                                            * To pay debts; and

* To distributed surplus of any, to members of the company.

(iii).     Under what circumstances the law of Bankruptcy applies to Public Corporation?

The Law of Bankruptcy applies to Public Corporation under the following circumstances.

(iv).     Can law of Bankruptcy apply to a Company?

Yes, Bankruptcy Law i.e. Bankruptcy Act, Cap. 25 can apply t a Company.

Question: (i). What happens if the Plaintiff is absent on the day the case is called for hearing?

When the plaintiff is absent on the day the case is called for hearing, the case shall be dismissed for want of prosecution. But where the defendant admits the claim, or a part thereof, the court shall pass a decree against him upon such admission of the claim and where the admission is in respect of the part of claim, the court dismiss the suit so far as it relates to the reminder. See O. IX r. 8 of Civil Procedure Act.

(ii).     What happens if both the Plaintiff and Defendant are absent on the day the case is called for hearing?

Where both the Plaintiff and Defendant are absent on the

day the case is called for hearing the court may make an order that suit be dismissed. See O. IX r. 3 of Civil Procedure Code..

(iii).     What happens if both the Defendant is absent on the day the case is called for hearing?

The procedure to be followed when the Defendant is absent on the day the case is called for hearing is governed by the provisions of O. IX, r. 6(1) of Civil Procedure Act.

The procedure is:

*If the suit is before High Court and it is proved that the defendant was dully served, the court may proceed ex-parte.

*If the suit is before the courts subordinate to High Court.

*where the summons issued was a summons to file defence and it is proved that the summons was dully served, the court may proceed ex-parte;

*And if the summons issued was summons to appear and it is proved that the summons was dully served, the court may enter judgment for plaintiff.

(iv).     What happens if the appellant on a civil appeal is absent?

Where the appellant on Civil appeal is absent on the day the appeal is called on for hearing, the Court may make an order that the appeal be dismissed per O. XXXIX, r. 17(1) of Civil Procedure Act.

Note: Where the appellant appears and the respondent does not appear the appeal may be heard ex-parte per O.XXXIX, r. 17(2) of the Civil Procedure Act.

(v).     What happens if the respondent in criminal appeal is dead?

Where the respondent in criminal appeal dies the appeal abates. However, the                                       appeal from a sentence of fine does abate as per section 371 of the Criminal Procedure Act.

Question: What do the following phrases mean? (a). A holder in due course

Holder in due course is the one who has taken a bill of exchange in good faith and for value, before it was overdue and without notice of previous dishonor or of any defect in the title of the person who negotiated or transferred the bill. NB: The holder in due course holds the bill free from any defect title of prior parties and may enforce payment against all parties liable on the bill. A bank which has allowed customer to draw against unendorsed, un-cleared cheque is a holder in due course. See case of Midland Bank vs. Harris [1963] 1 WLR 1021.

(b).     Insurable Interest.

Insurable interest is an interest in the subject matter of a contract of insurance that provides the person insured with the right to enforce the contract.

NB: An insurable interest, example, ownership of goods insured distinguishes a contract of insurance from wager or Bet.

(c).     Insurance Broker.

An Insurance Broker is defined under section 3 of the

Insurance Act, 1996, Act no. 18/1996. The phrase Insurance Broker means a person who negotiates Insurance Contracts with Insurance Company on a commission basis and usually handles claims on its clients’ behalf.

(d).     Financial Institution.

Financial Institution is defined under section 3 of Banking and Financial Institutions Act, 1991 repealed and replaced 2006, to mean any person authorized by or under the Act to engage in banking business not involving the receipt of money or current account subject to withdrawal by cheque. See Bank: Bank is defined by section 3 of the same Act to mean Financial Institution authorized to receive money or current account subject to withdraw by cheque.

Question: What is Proclamation for sale?

Proclamation for sale is the document drawn up by the court for the purpose of sale of property by public auction.

Proclamation for sale is required to state time and place of sale, and specify as clearly as possible the property to be sold;        *The rent (if any)

payable in respect of property;

*Any encumbrance to which the property is liable;

*The amount for the recovery of which the sales is ordered; and *Every other thing which the court considers material for purchaser to know in order to judge the nature and value of

the property.

Proclamation for sale is governed by sections 65 and 66 of the Criminal Procedure Code.

Question: Can you tell the Council what do you understand by the following:

  • Certificate of Urgency

A certificate of Urgency is the document drawn up by the applicant on oath that accompanies the applicant on oath that the application supported by association stating that the matter which is the subject of application is of extreme urgency.                       Note: it is certificate brought in court on top of application (Chamber Summons), (Affidavits) telling the court that the matter is one of the urgency nature to be held and determined within the shortest possible time.

(b).     Certificate of Incorporation

Certificate of Incorporation is a certificate issued by the registrar of companies after registration of a company certifying that the company is incorporated. In case of Ltd Company, certificate of incorporation certifies that the company members have limited liabilities.

(c).     Certificate of Compliance

Certificate of compliance is the certificate issued by registrar of companies to the foreign company after it complies with

registration requirements provided for under section 321 of the Companies Act, Cap. 212.

(d).     Certificate of Registration

Certificate of Registration is the certificate issued by relevant authority after compliance with the requirements for a particular registration purpose.

(e).      Res judicata

Res judicata is governed by section 9 of Civil Procedure Act. It is a principle that provides that when a matter has been finally and adjudicated upon by a Court of competent jurisdiction it should not be reopened or challenged by the original parties or their successors in interest. It does not preclude an appeal or a challenge to the jurisdiction of the court.  Note: its justification

is the need for the finality of litigation.

Question: Can you distinguish the following terms: (i). Corporate Liability

Corporate liability is the liability of the corporation for acts or omission of its employees committed in the course of their employment.

(ii).     Product Liability:

Product liability is the liability of manufacturer and other persons for defective products. One may sue in contract for

breach of the contract in falling to supply products conforming to the contract or he may maintain an action in tort for the damage caused by defect products.

(iii).     Business Liability:

Business liability is the liability for a breach of Obligation or duties arising in the course of a business or from the occupation of business premises. One may sue in contract or tort.            Note: Liability may extend to include the activities of Government Departments or Local Authority or Public Authority.

Question: (i). What is the difference between a Company Ltd by shares and a Company Limited by guarantees?

The difference between the company Ltd by shares and a company Limited by guarantee is governed by the provisions of section 3(2) of the Company Act, Cap. 212. The company limited by shares is the one which liability of its members is limited by the memorandum to such amount, if any of unpaid shares held by them; whereas the company limited by guarantee is the one which has the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of being wound up.

(ii).     What is a public corporation?

A public corporation is a corporation in which the government or its agent holds majority of shares or is a sole

share holder. Normally a corporation is established to perform a public function of commercial nature.

(iii).     What is the difference between a Company limited by shares and Partnership?

The difference between the company limited by shares and Partnership is as follows:

  1. Partnership is governed by Part X of Law of Contract Act, Cap. 433 it is defined in section 190(1) of LCO to mean the relationship that subsists between persons carrying on business in common with the view of profit. The relationship of partnership arises from contract and not from status, per section 191 (1) of LCO. Example of Partnership is a firm of Legal Practitioners;

while;

the Company limited by shares is governed by Cap. 212.

  1. Partnership is not legal person, but can sue or be sued on it own name

while,

a Company limited by shares is a legal person separate from its members; it can sue or sued in its name.

  1. The minimum number of partners is 2 while the maximum number is 20,

while;

in Public Company has no maximum number of members. Maximum number of members in Private Company is 50 and minimum of 7 for the Public Corporation and 2 members for Private company.

(iv).     What do you understand by Partnership?

Partnership is not formed by registration of document unless business name is used. It may be formed by express or implied agreement, oral or written or even by imputation of the law while;

Company is formed by registration of memorandum and articles of association as well as other documents, if required.

  • Liability of partnership is unlimited i.e in cases of default, creditors have personal claim against them jointly and severally while;

Liability of Company members is limited e.g to amount of unpaid shares in limited company, creditors have no claim against members.

  • Powers in Partnership are regulated freely by agreement and are not deemed to be known by third Parties. Powers are altered freely by agreement thus; the doctrine of ultra vires is inapplicable. While;

Power in the Company are strictly regulated by memorandum and article of association that are deemed to be known to third parties dealing with the company contracts made by company beyond its powers and objects are ultra vires

  • Unless, otherwise agreed, death, bankruptcy or insanity of a partner terminates partnership,

while;

in Company the company does not die with death, bankruptcy or insanity of its member. Shares pass to appropriate representative.

  • Each partner has the right to participate in management of Partnership

while;

in Company Members delegate the management of the company to directors.

  • Partnership is not required in law to keep book of accounts

while;

the company must keep proper books of accounts.

  • Partnership is not taxable entity. Each partner is taxed individually at his own personal tax rate or his share of all firm income whether distributed or not

while;

The company is a taxable entity. Dividend received by members of the company are also taxed.

Note:

  1. Unlimited Company is the one whose members are liable to contribute to the debts of the company to the full extent of their property(ies)
  2. A private company is one which:

*restrict the right to transfer its shares

*Limits the number of its members to 50; and

*Prohibits any invitation to the public to subscribe for any shares or debentures of the company.

Question: How can the life of a company come to an end?

The company comes an end when it is wound up by order of a Court (High Court) according to section 157(1) of Cap 212, the company’s wound up can be undertaken by the Court or Voluntary or subject to supervision of the court. The circumstances which the company can wound up by the court are provided for under section 167(a)-(f) e.g where the company does not commence its business within a year from its incorporation.  The

circumstances for voluntary wound up are provided in section 221 (1)(a)-(c) i.e where fixed duration of existence of the company expires.

The winding up supervised by the court is governed by section 252. It happens where the company passes resolution for voluntary winding up and the court is of the opinion that the wound up of the company be supervised by it.

Question (i). What laws regulates succession and inheritance in the country?

The laws that regulating succession and inheritance in the country are:

  1. The Indian succession Act, 1865;
    1. The Probate and Administration of Estates Cap.352;
    1. The Administration of Small Estates Ordinance, Cap. 30;
    1. Succession (Non Christian Asiatics) Ordinance, Cap 112
    1. Local Customary Law Declaration Order, 1963, GN No. 279/1963
    1. Indian Law Application Ordinance.
    1. Primary Courts Administration of Estates Rules, GN. No.

45/1971 read together with Schedule to Magistrate Court Act, 1984.

(ii). When do you petition for Probate; and when do you petition for letters of administration?

One applies for Probate when the deceased person leaves a will appointing the applicant to be an executor; whereas one applies for letters of administration when the deceased person dies intestate.

Question: (i). What do you understand by security for costs?

Security for costs refers the sum payable by a plaintiff to a civil action as a condition of being permitted to continue with the action. Security for costs are ordered at the discretion of the court. They are not always ordered against the defendant. Security for costs may be ordered in the following circumstances: 1. When the Plaintiff is ordinarily resident out of the area of jurisdiction of Court.

2. When the Plaintiff is suing on behalf of someone who will be unable to pay the defendant costs of the suit if ordered; 3.When the Plaintiff address is dishonestly not stated or incorrectly stated on the writ or originating process; and

4. Where the Plaintiff has changed his address during the course of proceedings in order to erode the consequences of litigation.

(ii).     What laws governs security for costs?

Security for costs are governed by Court of Appeal Rules, 1979 and Order XXV of Civil Procedure Act

(iii).     What do you understand by extra territorial jurisdiction?

Extra territorial jurisdiction is governed by the provisions of section 6 of Penal Code. If refers the power conferred on our Courts to try offences committed by Tanzanians outside the country or in aircraft registered in Tanzania.

(iv).     Can you tell the Council what does taxation mean?

Taxation means the procedure of determining the bill of costs.

(v).     Can a party appeal on the decision of Taxing Master.

One does not appeal against the decision of Taxing Master but he will refer the matter to single judge of High Court.

Question: (i). Can you mention the law which regulate the limitation period in filling Civil action in Tanzania?

*The Law of Limitation Act, 1971 No.10/1971

*the customary Law (Limitation of Proceedings) Rules, 1964 GN No. 311/1964

(ii). What is the Pecuniary Jurisdiction of different Courts in Tanzania? Pecuniary jurisdiction of the following Courts:

Primary Court:

3 millions for movable property; and 5 millions for immovable property.

RM’s/District Court:

100 millions for movable property; and 150 for immovable property

NB: The Magistrate Act as amended by written Laws (Miscellaneous Amendments) Act, 2002

High Court/ Court of Appeal:

Have no maximum pecuniary jurisdiction.

Question: (i). What does a foreign Company get from the Registrar after complying with requirement?

When a foreign company complies with the requirement the registrar issues to that company a Certificate of Compliance.

(ii).     What does a Local Company get from the Registrar having complied with the requirements?

When the local company complies with the requirements it gets a Certificate of Registration from the Registrar.

(iii).     What do you understand by voluntary liquidation and involuntary liquidation?

Voluntary liquidation is a winding up procedure in which a company passes a resolution for voluntary winding up. It is governed by section 221 of Cap 212.

Involuntary liquidation is mode of winding up a company which is made compulsorily. It is not voluntary and it is made by the Court. The circumstances when the company can be involuntarily wound up is governed by the provisions of section 167 e.g where a company reduces the number of

members below that stipulated in Cap. 212

(iv).     What do you understand by debenture instrument?

Debenture Instruments is an instrument usually under seal issued by a company or public body as evidence of a debt or as security for a loan of a fixed sum of money, at interest.

The instrument contains a promise to pay the amount mentioned in it, and is usually called debenture on the face of it. Debenture includes Debenture stocks, Bonds and any other securities of a company whether constituting a charge on the assets of the company or not per section 2(1) of Cap 212

Question: tell the Council the Law governing the following? (i). Partinership;

(ii). Mortgage; (iii).  Agency; (iv). Citizenship; (v).  Accomplice;

(vi). Testamentary Disposition; (vii). Dissolution of Marriage; (viii). Banking;

(ix).Share trade; (x). Insurance; (xi). ICTR;

(xii).     Bail Pending Appeal

  • Partnership is governed by Part X of the Law of Contract Act; Cap 433.
  • Mortgage is governed by the Land Act, 1999 No. 4/1999; and Part VI of the Land Registration Act, Cap. 334.
    • Agency is governed by Part IX of Law of Contract Act, Cap. 433.
    • Citizenship is governed by the Tanzanian Citizenship Act; 1995.
    • Accomplice is governed by section 22 of the Penal Code, Cap 16 of the Laws Revised.
    • Testamentary Disposition is governed by The Local Customary Law Declaration Order, 1963 and 1964.
    • Dissolution of Marriage is governed by The Law of Marriage Act, No. 5 of 1971
    • Banking is governed by The Bank of Tanzania Act, 1995 and The Banking and Financial Institutions Act, 1991.
    • Share Trade is governed by The Capital Market and Securities Act, 1994.
    • Insurance is governed by the Insurance Act, 1996.

(xi).     International Criminal Tribunal for Rwanda is governed

by

  • Bail Pending Appeal is governed by section 368 of the Criminal Procedure Act, No. 9/1985 [R.E 2002]

Question:

  • What is the difference between Joint Tenancy and Tenancy in Common?

Joint Tenancy is the one in which two or more persons own the land with identical interests in the whole of it. Under the joint tenancy the right of survivorship applies i.e. the ownership of entire interest in the property passes automatically on the death of one joint tenant to the survivors. The last survivor becomes the sole and absolute owner. And as regards to tenancy in common, there is equitable ownership of land by two or more persons in equal or unequal undivided shares. Under this tenancy, each co- owner may sell or dispose of his share by will. There is no right of survivorship i.e. a share does not pass automatically on the death of tenant in common to survivor(s).

NB: Joint tenancy arises when the following four conditions exists: i). Each joint tenant must be entitled to possession at the same time.

  1. The estate or interest each has in land must be identical

i.e. each joint tenant is entitled to the whole of property and has no excusive entitlement to any separate part of it.

  1. Each joint tenant have the same title to the land i.e. their ownership must be traced from the same instrument, such as a conveyance to ‘A” and ‘B’ as joint tenant.
    1. Each joint tenant’s interest must vest at and subsist for the same time.

(ii).     What is the difference between a Private Company and Public Company? What is the major difference in respect of shares?

The difference between a Private Company and Public

Company is that;

  1. The Articles of Private Company restrict the right to transfer its shares;
    1. The Articles Limits the number of its members to 50, and iii). The Articles prohibits any invitation to the public to subscribe for shares or debentures of the company whereas the Articles of Public Company do not. See section 27(1)(a)-

(c) of Cap. 212                    The major difference in respect of shares between Private and Public Companies is

(iii).     What do you understand by Specified Corporations?

Specified Corporation is defined by the provisions of section 3 of Public Corporation Act No. 2 of 1992, as amended by Act No. 161 of 1993 to mean a Public Corporation declared to be Specified Public Corporation. After the Public Corporation is declared as Specified Public Corporation, it is required to be restructured by Presidential Parastatal Sector Reform Commission Established by section 21 of the Act No. 16 of 1993.                      NB:

Restructuring in relation to specified Public Corporation or Specified Government minority shares means any form of restructuring as a result of which ownership, structure or control of that specified public corporation or specified government minority shares is altered. See section 2 of The Public Corporations (Amendment) Act; 1993.

(iv).     What is the procedure in suing Specified Corporation?

The procedure in suing specified corporation is as follows: i). To apply for leave in the High Court to sue Specified Public Corporation; and

ii). If leave is granted, a person is required to sue the same and making PCRC a party thereto.

(v).     Can you tell the Council where one can find the Power of District Registrar of the High Court?

The powers of District Registrar of High Court is found in the Law establishing High Court Registries i.e. the High Court Registries Rules, 1961.

(vi).     Can you mention two Legislations which govern commercial transactions in Tanzania.

One of two legislation that govern Commercial transactions in Tanzania are:

  1. The Law of Contract Cap, 433
  2. The Banking and Financial Institution Act, 1991 as amended 2006. NB: The term Commercial Law has broad meaning. It is the law of business contracts, bankruptcy, Patents, Trades Marks, designs, Companies, Partnerships, Exports and Import of Merchandise, Affreightment, Insurance, Banking, Mercantile Agency and usages. See Osborn’s Concise Law Dictionary, 6th Edition, page 80.

Question: What do the following mean: i). A default judgment;

Default judgment is the judgment made exparte. It is a judgment which is made after the defendant fails to file his defence or make his defence.

ii).    Notice of Motion.

Notice of motions is the procedure by which an applicant moves the court so as to determine certain matter(s), example: notice of motion may be filed under Rule 8 of Court of Appeal Rules seeking leave to appeal out of time.

Question: What is the procedure for suing a Military Officer?

  1. The procedure for suing a military officer is governed by Order XXVII of the Civil Procedure Act.
    1. According to Order XXVII r. 1(1) of CPC the military officer may defend the suit in person, i.e. he may be sued and defend his case.
    1. But he can not obtain leave of absence for the purpose of defending his suit; Order XXVII, r.1(1) empowers him to authorize any other person to defend the suit in his stead. iv). The authority appointing that other person to defend the suit on behalf of the military officer must be in writing and must be signed by the said military officer in presence of his Commanding Officer. Such Commanding Officer must also countersign the authority before been filed in court per Order

XXVII. R. (1)(2) of the CPC.                                                             iv).

Upon the authority being filed in court, the person authorized to defend the suit on behalf of military officer, will defend the suit in person in the manner as the military officer could do if present. He may appoint the advocate to defend the suit per

Order XXVII. r.(1)(3) of the Civil Procedure Act.

NB: 1. The above procedure applies where the military Officer is suing

2. Military men are governed by Military Law and Code of Discipline.

Question: (i). When may a Plaint be rejected?

The plaint may be rejected in the cases provided for under Order VII, r. 11 The of Civil Procedure Code; thus,

  1. Where the Plaint does not disclose a cause of action;
  2. Where the relief claimed is under valued and the Plaintiff on being required by the Court to correct the valuation within a specified time fails to do so; and
  3. Where it appears from the Plaint that the suit is barred by any law.

(ii).     When may a suit be dismissed?

The circumstances in which the suit may be dismissed are governed by the provisions of Order IX rr, 2, 3, 5 and 8 of the Civil Procedure Act; and these are:

  1. Where summon s has not been served upon the defendant due to Plaintiff’s failure to pay money required for service of summons. See Order IX. r.2
    1. Where neither party appear when the suit is called on for hearing. See Order IX r.3;
    1. Where summons required to be served on the defendant is returned and the Plaintiff fails for three months to apply for fresh summons. See Order. IX r. 5(1)
    1. Where the defendant only appears and the Plaintiff does

not appear when the suit is called on for hearing. iii). When may an appeal be summarily rejected?

The circumstance in which the appeal may be summarily rejected is governed by the provision of Order XXXIX. r. 10 of the Civil Procedure Code. According to the aforementioned provisions, the court is obliged to reject the appeal, where the appellant fails within specified time as ordered by Court to furnish security for the costs of appeal, or of the original suit or of both.

Question: When may the Court require the furnishing of security for costs?

The Court require the furnishing of security for costs in any of the following circumstances:

i). Where the appellant is residing out of Tanzania and is not possessed of any sufficient immovable property within Tanzania per Order XXXIX, r. !0 (1) of the Civil Procedure Act; ii). Where the party is suing on behalf of someone who will be unable to pay the defendant’s costs if ordered to do so; iii). Where the defendant address is dishonestly not stated or incorrectly stated on the Pleading; or

iv). Where the Plaintiff charges his address during the course of proceedings in order to erode the consequences of the litigation.

What do the following mean in our law? (i). Judicial Notice;

Judicial Notice is the means by which the Court takes as proven certain matters without hearing the evidence. Matters which the Court does take judicial Notice are; those which are so notorious or clearly established that formal evidence of their existence is not required. Again the court does take its Judicial Notes matters of common knowledge and everyday life.

(ii). Dock Brief;

Is governed by section 3 of the Legal Aid (Criminal Proceedings) Act, No. 21 of 1969. It arises when the indigent accused person is offered free legal aid by an advocate assigned to him by the registrar of the High Court. The advocate is required to prepare and conduct accused’s defence or appeal.

Question: Can you Explain to the Council which laws establish the following:

  • The High Court of Tanzania;

The High Court of Tanzania is established under Article 108 of the Constitution United Republic of Tanzania 1977, as amended time to time.

(ii).     The Court of Appeal of Tanzania;

The Court of Appeal of Tanzania is established under Article 117 of the Constitution United Republic of Tanzania 1977, as

amended time to time.

NB; see the 13th amendment of the above Constitution issued in 2000

Question: What is remedy available to a party when application for leave to appeal has been rejected by the High Court?

i). Where the High Court refuses to issue Certificate that a point of law is involved in matters originating from Primary Court the aggrieved party may bring the matter by way of appeal to the Court of Appeal. See the exposition of Court of Appeal in Omari Yusuf vs. Mwajuma Yusuf & Another [1983] TLR 29                                               ii). where the matter originates from District or RM’s Court and the High Court rejects to grant leave to appeal the aggrieve party may bring the matter to the Court of Appeal by way of appeal challenging the order refusing to grant leave.