MZUMBE UNIVERSITY
MBEYA CAMPUS COLLAGE
DEPARTMENT OF ADMINISTRATIVE STUDIES
COURSE : LLB
SUBJECT : LEGAL METHOD
SUBJECT CODE : LAW 120
NATURE OF ASSIGNMENT : GROUP ASSIGNMENT
LECTURER : Dr. TASKO LWAMBANO
GROUP NO. : GROUP 12
LIST OF GROUP MEMBERS
S/N NAMES REG NUMBER
1 ABDUL K. SWADAKAT 2631221/T.21
2 AIRINE SALVATORY SHILIMA 2631120/T.21
3 ALLY KASSIMU ALLY 2631211/T.21
4 HABAKUKI SOSTEN MBWILO 2631218/T.21
5 HAPPINESS ALIKO MWAIJULU 2631206/T.21
6 ITIKA JUSTIN MULUNGU 2631219/T.21
7 JOHN T. FELIX 2631213/T.21
8 LEVANIA ALEX KAJINYIKA 2631208/T.21
9 OSCAR H. KABURU 2631212/T.21
10 OSIWELO M SIMKOKO 2631217/T.21
11 PRISCA JOSEPH 2631204/T.21
12 SCHOLASTICA CHENE PASCHAL 2631216/T.21
13 SCHOLASTICA LAMBERT HAULE 2631224/T.21
14 SHEDRACK STEVEN KIBIKI 2631222/T.21
15 ZERA BAKARI 2631228/T.21
16 WARIDI ISSA KAESA 2631207/T.21
17 BENESTA A. DAUD 2631203/T.21
18 ROVALDO F. MUNISHI 2634200/T.21
QUESTION; case law is one of the sources of law in Tanzania. With decided cases show
how case law has contributed to the development of law in Tanzania.
TABLE OF CONTENT
INTRODUCTION
meaning of case law and development of law in Tanzania
MAIN BODY
contribution of case law in development of law in Tanzania
CONCLUSION
REFERENCES
INTRODUCTION
Meaning of case law and development of law in Tanzania
Case law refers to the cases from the high court and court of appeal which are either reported
or unreported and are being used as precedents, and bind lower court thereto. OR
Case law refers to the law established by the judicial decision in case 1. These laws are not
provided under constitutions, statutes or regulation, as they are based in unique disputes
resolved by courts using the concrete facts of the cases.
There is no provision of law which expressly provide for the application of the doctrine of
precedent (case law) in Tanzania. However, section 2(3) of the JALA 2, which receives the
common law, has invariably been taken as the provision applying the doctrine of precedent in
Tanzania. Under this doctrine all subordinate courts shall be bound under the superior courts
that are, the high court and the court of appeal. Apart from other sources of law in Tanzania,
the case law as the source has contributed to the development of law in Tanzania, as it
contributed to the following;
MAIN BODY
Contribution of case law in development of law in Tanzania
Case law has laid the foundation for the establishment of legal doctrines in Tanzania;
there are some applicable doctrines which are normally used in Tanzania in different cases
including the criminal cases and civil cases, which have not been provided under statutes or
any law but they do serve as applicable law in settling the disputes but also in provision of
criminal justice in Tanzania courts. In the case of ALLY IDDI V R3, the complainant gave
appellant 580/= in old notes to change into new ones. Appellant returned 400/= new notes.
Complainant wanted her money back, appellant agreed to repay her, but did not. He kept
avoiding her. Appellant was charged and convicted of theft of 180/=. The court held that “a
person who uses money entrusted to him by another at his will may be guilty of larceny
even if he had the intention to repay” this is the among of the case which led to the
formation of the doctrine known as DOCTRINE OF IMPLIED CONSENT whereby the
1
Mirindo. F (2014) Administration Of Justice In Mainland Tanzania, Lawafrica, dar es
salaam.
2
1920
3
(1969) H.C.D 263
doctrine provides that “where a person uses the money entrusted to him or her by another
under an honest believes that consent would have been given by the owner he may be
acquitted of theft for lack of fraudulent intent”
Case laws have led to the reformation of provisions of some existing laws; this refers to
the amendment of some provisions of the existing law so as to fit the contemporary society of
Tanzania. This has been enhanced through the decided cases on the subject matter which
actually seems to contradict with the supreme law (constitution of the united republic of
Tanzania4). The case of Attorney General V Rebecca Gyumi 5 in this case the appellant
challenged the provisions of sections 13 and 17 of the law of marriage Act 6 that they are
unconstitutional, whereby section 13(1) provides that “no person shall marry who, being
male, has not attained the apparent age of 18 years or being a female, has not attained the
apparent age of 15 years” and section 17(1) provides that “a female who has not attained
the apparent age of 18 years shall be required before marrying to obtain consent;
(a) of her father
(b) if her father died, of her mother and
(c) if both her father and mother died, of the person who as her guardian”
These provisions were challenged by the appellant that they were contrary to the provision of
the article 13 which provides equality before the law, article 15(1) which provides for the
right to personal freedom, article 18 which provides for the freedom of expression of the
constitution of united republic of Tanzania7. Under this case, the court of appeal found that
the entire appeal has no merit. The appellant is supposed to abide by the order of high court
to causing the amendment of law of marriage Act as directed.
Case law has led to the establishment of regal rules; regal rules refers to the rules which
are admitted by the court in order to put someone into liability, case laws have contributed to
the formation of those rules which will be observed when convicting a person for a certain
crime so as to serve the justice when it should be adhered. In the English case of Rylands v
Fletcher8 established the rule for strictly liability for harm caused by escapes from land
applied to exceptionally hazardous purpose. Where by the rule requires the court to prove
4
1977 R.E 2008 as amended from time to time
5
Miscellaneous civil cause no 5 of 2016
6
CAP 29 R.E 2019
7
1977 R.E 2008 as amended from time to time
8
(1868) LR 3 HL 330
that; (1) the defendant brought something onto his land, (2) non-natural use of land, (3)
something likely to do mischief, (4) escape, and (5) foreseeability. These rules have been
used in tort law in tanzania, especially in tort of nuisance and trespass. In the case of Salim
Omari V Jackton Ongea9 judge Bramble J applied the principle of rylands v fletcher rule
whereby the appellant gave the respondent permission to use part of his land. When clearing
this portion of the respondent, not ire to the grass and in spite of precautions taken the fire
escaped because of strong wind and burnt the whole of the appellant’s shamba. Judge held
that the defendant was liable as he failed to prevent the fire from spreading.
Case law has contributed to the nullification of discriminatory laws which were
applicable by Tanzanian society; there are some laws which were discriminatory by nature
whereby they influenced things like gender discrimination to the society. For example in
Tanzania in the case of Ephrahim V Holaria Pastory,10 The respondent, Ms. Pastory,
inherited clan land from her father by a valid will and sold the land to a man who was not a
member of her clan. The next day, the appellant, Mr. Ephrahim, filed suit seeking a
declaration that the sale of land by Ms. Pastory was void under the customary law that a
woman has no power to sell clan land. The Court held that the customary law regarding
women's property rights discriminated on the ground of sex in violation of CEDAW, the
African Charter on Human and Peoples' Rights and the ICCPR as well as the Tanzania
Constitution. So this was against human rights which prevented Haya women from inheriting
land which is the basic right for every Tanzanian. The case Law led to the nullification of
haya customary law which prevented women to own land.
Case law resulted to the development of duty of care. Duty of care means a legal duty
rather than mere, moral religious or social duty. The plaintiff has to establish that the
defendant owed to him a specific legal duty to take care of which he has made a breach.
There is no general rule defining such duty. It depends in each case whether a duty exists. In
the case of Theodoclina alphaxad V. Medical officer in charge of Nkinga hospital, 11 the
Nkinga hospital was held liable for causing amputation of the minor’s hand due to the
negligence of the doctor in duty.
9
(1972)
10
(1990) H.C.D
11
(1992) TLR 235
CONCLUSION
Henceforth, the case laws has greatly contribution to the development of law in Tanzania as
they help judges in making judgments and decisions on the cases brought in the court which
relates to the cases which has been reported previously. Also case laws are very important
hence they help law students to facilitate their learning process as the cases gives experiences
to them to know on how cases are being judged and decided regarding the gravity of the case
itself. So as we lawyers it is very necessarily and a must to be familiar with a lot of cases for
good experience on the field of law.
REFERENCE
The constitution of united republic of Tanzania of 1977
STATUTES
The law of marriage Act CAP 29 R.E 2019
BOOKS
Mirindo. F (2014), Administration of Justice in Mainland Tanzania, Lawafrica, dar es salaam
Mcleod. I (2010), legal method, palgrave law macmillan publishers,London
Kapoor. S (2008), law of torts, Hindu law publishers, Delhi
READINGS
Oxford, dictionary of law fourth edition
CASES
Ally Iddi v R (1969) H.C.D 263
Attorney General V Rebecca Gyumi Miscellaneous civil cause no 5 of 2016
Rylands v Fletcher (1868) LR 3 HL 330
Salim Omari V Jackton Ongea (1972) H.C.D 145
Ephrahim V Holaria Pastory (1990) H.C.D
Theodoclina alphaxad V. Medical officer in charge of Nkinga hospital (1992) TLR 235
