Case 2

THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
CORAM; (MSOFE, J.A , KILEO J.A, KIMARO, MASATI J. A AND MANDIA, J.A)
TYPE OF THE CASE
Civil case
this was a civil case cited as ( CIVIL APPEAL NO.36 OF 2012)
CHIRIKU HARUNI DAVID.......APPELLANT
AND
1.KANGI ALPHAXARD LUGORA.........RESPONDENT
2.THE RETURNING OFFICER FOR MWIBARA.... RESPONDENT
3.THE ATTORNEY GENERAL...... RESPONDENT
( appeal from the judgment and decree of the high Court of Tanzania at musoma)
MATERIAL FACT
a bench of three justices of the high Court of appeal of Tanzania ( RUTAKANGWA, J.A and ONYO, J. A)
sitting as an ordinary court under article 122 of the constitution of the United Republic of Tanzania 1977
referred a matter of law for consideration and decision by the same
Court sitting as a full bench of five justices under article 1886 (1) of the same constitution ( Constitution
of The United Republic of Tanzania )
ISSUE OF THE CASE
The issue on this case was whether the Circumstance of this case counsel's invitation to the court to
depart from its decision in civil appeal no 115 of 2011- KATANI A KATANI Vs THE RETURNING OFFICER
TANDAHIMBA DISTRICT AND TWO OTHERS should be determined by the court ( Three justices) or full
bench court
ARGUMENT OF THE CASE
the applicant; argued that in the appeal counsel for the appellant, Mr herbert Nyange. In terms of rule
106 (3) of the Tanzania Court of appeal 2009 the Rules had intimated that he would invite us to depart
from court decision in KATANI A KATANI v THE RETURNING OFFICER FOR TANDAHIMBA DISTRICT and
two others civil appeal no 115 of 2011 regarding the proper construction to be part on s. 111 of the
national elections acts
the respondent; was represent by Mr lutema on behalf on the first respondent filed a fairly long written
submission with respect we will not address each and everything is canvassed in his submission, we will
not do so not because of discourtesy to learned counsel bit die to the fail that in view of the position we
have taken on the construction of section 111
Most of the points he is raising have adequate been dealt with there. These are however two others
matters on his submission with which deserve our attention as under somewhere in his submission Mr
lutema is Saying as follows
" we submit that advocating of an interpretation of an interpretation that permits the high Court to
allow those who have the money to deposit security for costs
RATIO DECIDENDI
on this case the R.D was based on two main principles that emerge from the above authorities one, the
full bench may be convinced to overrule a previous decision or to depart from the previous decision and
as it was held im mbowe (supra) the grounds or circumstances that may justify the full bench are not
closed in that ultimately every cause will be decided on the basis of its own peculiar facts typically
grounds would be for example where there are conflicting decision of that court where a decision was
made per in curium of three justices can depart in curium of three justices can depart from a previous
decision of three justices of the same Court, this preposition of law is supported by the cases of SHEIKH
MOHAMED, KIRIRI COTTON COMPANY and 21 CENTURY FOOD and packaging respectively (supra)
FORMS OF LEGAL REASONING
Deductive legal reasoning: there is a use of statutory law as well as precedents
FREEMAN MBOWE AND OTHERS Vs ALEX O LEMA (2001) TLR 85
JUDICIAL HUNCH; this was given by justice Srivanstava A.K of Delhi High Court
STYLES OF JUDICIAL OPINION
The style of judicial opinion was Grand judicial opinion
HOLDING
it was held that to state for the sake of certanity that we have dealt with the specific issues that was
Brought for our consideration and decision has nothing to do with the other precedings now pending in
the appeal an the cross appeal
We was consequently direct that the ordinary bench of the court ( RUTAKANGWA, J.A , LUANDA, J.A,
and ORIYO, J.A) be informed accordingly so that the hearing of the appeal and the cross-appeal may
resume. We so order
IN WHOSE FAVOR OF THE DECISION
none : in this case the decision had nothing to do with other preceding was pending in the appeal and
cross Appeal
FALACY
In this case falacy appeared when there was an Ex parte judgement

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THE COURT OF APPEAL OF TANZANIA

TYPE OF THE CASE

CHIRIKU HARUNI DAVID.......APPELLANT

1.KANGI ALPHAXARD LUGORA.........RESPONDENT

2.THE RETURNING OFFICER FOR MWIBARA.... RESPONDENT

3.THE ATTORNEY GENERAL...... RESPONDENT

ISSUE OF THE CASE

FORMS OF LEGAL REASONING

Deductive legal reasoning: there is a use of statutory law as well as precedents

FREEMAN MBOWE AND OTHERS Vs ALEX O LEMA (2001) TLR 85

The style of judicial opinion was Grand judicial opinion

IN WHOSE FAVOR OF THE DECISION

In this case falacy appeared when there was an Ex parte judgement

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