Dr.

Oscar Kikoyo, Advocate

Executive Secretary,
Surface & Marine Transport Consumer Council,
NSSF Waterfront,
P.O BOX 14154, Dar es salaam,
www.sumatraccc.go.tz

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Frank Clark
If you can find a path
with no obstacles, it
probably does not lead
you anywhere

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Course Content
1.
2.
3.
4.
5.

Development of Laws in Tanzania

Law of Contract
Law of Insurance
Law of Torts
Industrial Law & Labour Laws

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INTRODUCTION
Need to define key concepts.
Law & Business create synergy.
Classification of laws
Sources of law
Court system of Tanzania Mainland

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What is Business?
Business is a commercial activity

engaged in as a means of
livelihood or profit, or an entity
which engages in such activities.

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What is Law?
Law is the body of rules designed to regulate

human conduct within a given society.

It is a rule prescribed for human
action/conduct.
It concerns human beings, group of people or
society and not individual.

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What is Law Cont.

It is a rule prescribed for human action by a

determinate authority.
Otherwise, it is defined as a system of rules of
social behaviour.
These rules must be general and not specific.

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Types of Laws
Laws which forbid certain types of behaviour

under threat of penalty (Prohibitive)

Immigration Rules, TFDA Rules.
Laws which require people to compensate
others whom they injure in certain ways
(Directive)- Constitution of URT.
Laws which specify what must be done to
order certain types of human activity
(Permissive), e.g. to form a company, to
marry, to make a will etc.
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Characteristics of Law
Social control mechanism
Law is normative.
Law is of a uniform and general nature.

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Law and Morality

Law demands an absolute subjection to

its rules and commands with enforcing

authority derived from state
Morality demands that people should act
from a sense of ethical duty
The law which is enforced by the courts
must be distinguished from what
sometimes is referred to as natural or
moral law.
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Law and Morality

Cont.
In many cases the rules of law and morality
clearly coincide. For instance murder is both
against morality and against the law

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Law and Morality

Cont.
Sometimes rules of law and morality are

not the same. For example homosexual

behaviour is not illegal in some countries
although many people would regard it as a
breach of morality
The term natural law is sometimes used to
refer to rules which although not enacted
are accepted as part of the legal system.
For example the right to be heard, and the
principle that an accused person is innocent
until proven guilty.

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Law and Justice

The basic aim of the law is the attainment

of justice in society.
Compensation for injuries usually depends
on proving that someone is at fault.
If a person is injured due to his own fault
or in a pure accident where none is at
fault, he will not receive compensation
unless he is insured.
This inequality is a result of the rules on
negligence liability
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Law and Justice Cont.

The rules regarding mistake and

misrepresentation in the formation of a

contract often operate to determine which
of two innocent parties must bear all of the
loss. The loss is not divided equally.
Sentencing policies applied by magistrates
in different areas often result in
substantially different sentences for very
similar offences.
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Conclusion

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Law is generally similar to social custom,

positive morality and convention since it
shares with them the characteristics of a
normative system.

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Conclusion Cont.
In short all the laws of states around the world

will evidence the following features:Letter of the Law

A law is a written order - a set of instructions,
or software - that provides directions for
human behavior.

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Conclusion Cont.

Spirit of the Law

It is contained within the letter of the

law - the purpose, or intent of the law.
For any given law, the spirit of the law is
the hoped-for change, or benefit, that
the law will produce,as predicted by the
designers of the law.
Spiritof the law is the reason for its
existence

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Conclusion Cont.

Sanctions

Laws are the forcible means by which a

government achieves its goals;
They are coercions,restrictions,
prohibitions, or commands for action
that attempt to regulate or change the
behavior or status of those individuals
and institutions that are subject to the
law.

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Conclusion Cont.

Authority

To encourage individuals and institutions

to comply with the law
Each law has a mechanism of
enforcement, or authorized sanction (the
"carrot or stick"), that is applied to
accomplish the intent of the law.
Subsidies, fines, and imprisonment are
examples of mechanisms that may be
used as the forcible sanction of a law

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Conclusion Cont.
In short, the term LAW indicates

both the concrete and abstract

connotation.

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CLASSIFICATION OF
LAW
Law can be classified in many ways which
depend on perspective, use or the system
concerned. Some of the famous classification
of the law is as explained herein below:-

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CLASSIFICATION OF LAW
Cont.

Positive Law and Natural

Law

Law is a social rule posted by human beings

to regulate in a general and binding manner
the social behaviour of human beings as
social beings in a given society.

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Characteristics of Positive
Law

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Command
Sovereign authority
Punishment
Sanctions
Natural Law-Law is God given, it is inherent
and immutable.

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CLASSIFICATION OF LAW
Cont.

Public Law and Private Law

Public law-administrative law- the law that

regulated the conduct of administrative
actions
Private Law-torts, contracts. This is the law
that regulates the relationship of the
individuals.

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CLASSIFICATION OF LAW
Cont.

Substantive Law and Procedural

law (civil and criminal law)

Substantive law- refers to portions of a

countrys legal system which defines the
contents of legal norms or determines the
legal subjects rights and duties.
Procedural Law- refers to a countrys law
of procedure or the means by which
substantive norms are enforced.

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CLASSIFICATION OF LAW
Cont.
Common law and Equity
English law is based on two

complementary systems of law known as

common law and equity. Common law
was the first system to develop. Its rules
were rigid and sometimes harsh.
Common law is body of rules developed
by the common law courts of England.
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CLASSIFICATION OF LAW
Cont.
Equity evolved to supplement the common

law with more flexible rules based on

principles of good conscience and equality.
Equity is a form of law developed by the court
of chancery in England as a supplementary
system to cure the mischief of common law.

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characteristics of Common
Law
Continuity: Common law has

developed since 1066 without any major

changes in the system.

Absence of codification: In

some countries most of the law has been

reduced to written codes which contain the
whole of the law on a particular subject,
English common law is not codified.

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characteristics of Common
Law Cont.
The system of precedent:
English common law follows a system of
precedent. This means that a judge is bound
to apply rules of law formulated in earlier
cases provided the facts of the case before
him are sufficient similar, and the earlier
case was heard in a court of superior status.

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characteristics of Common Law

Cont.
The judiciary: English judges are

independent of both parliament and civil

service. This is evident from the fact that
they often give judgement against the
crown or a government. In addition a judge
will be immune from liability provided he
acts honestly in the belief that he is within
his jurisdiction

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characteristics of Common
Law Cont.
The accusatorial procedure
In both civil and criminal cases the court

remains neutral and hears the arguments

presented by each side. In countries where
an inquisitorial procedure is used the court
plays a more active part, itself questioning
the witnesses.

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Major Classification of Law

by Application
Civil Law
Criminal Law

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Civil Law
What is Civil Law?
Civil law is the branch of law dealing with

disputes between individuals or organisations

in which compensation is awarded to the
victim (decree holder). For instance, if a car
crash victim claims damages against the
driver for loss or injury sustained in an
accident, this will be a civil law case

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Civil Law Cont.

Property Law:
It governs transfer and ownership of the property

Law of contract:
It governs personal agreements
Law of torts:
It governs personal harm which may be either

physical or mental. The harm can be caused by

acts such as trespass, assault, libel, slander

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Civil Law Cont.

Employment Law
Company Law
Family Law
Commercial Law etc.

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Criminal Law
It is a body of rules and statutes that

define conducts prohibited by the state

because they threaten public safety, social
order and its welfare.
It establishes punishment for each
prohibited conduct in case it is committed.
Criminal law refers to substantive law eg
Cap. 20, NEMC Act, Economic Organised
Crimes, Terrorism Act, Money laundering
Act etc
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Criminal Law Cont.

Criminal Procedure Act describes the process

through which criminal law should be

enforced.
To enforce Criminal Law the following have to
be established: Intent
Malice
Motive

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Criminal Law Cont.

The general principle is actus non facit reum

nisi mens sit rea the one who alleges must

prove the allegation.
Ignorance of the law is not an excuse at all
ignorantia juris non excusant

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Sources of Law
Sources of law are means by which law

develop.
Constitution
Statutes
Case Law or Precedents
Customary Law or customs
Islamic Law
Received Law

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Sources of Law Cont.

The Constitution: it is a primary law of the land.
All laws of the land derive their authority from

the Constitution.
It establishes the State, the Parliament and
the Judiciary
It establishes Rights and Duties of Citizens
and the Government.

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Sources of Law Cont.

Statutes:-

It is formal laying down of rules that have

to be observed by citizens
It can be a Primary or Principal Legislation
OR Subordinate or Subsidiary Legislation
Primary or Principal Legislation are laws
that are enacted by the Parliament after a
bill which is passed by the majority of
members of parliament.
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Sources of Law Cont.

The Parliament is the supreme legislative

body has authority to make and unmake

laws according to the needs of time.

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Sources of Law Cont.

Subordinate or subsidiary legislation are

enacted by other organs other that parliament

on delegated powers by the Parliament.
Parliament may delegate some of its powers
to enact laws through Primary Laws.
Parliament delegates some of its legislative
powers due to:-

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Sources of Law Cont.

Lack of Parliamentary time
Urgency/emergency
Flexibility
Technicality
Future needs

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Sources of Law Cont.

Case Law or Precedents
Decisions of the High Court and Court of

Appeal binds subordinate Courts stare

decisis.
The reasoning behind the Ruling or
Judgment is called Ratio Decidendi
Subordinate Courts are bound to follow the
Ratio Decidendi when adjudicating a
case with more less same facts or similar
circumstances
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Sources of Law Cont.

Characteristics of the Precedents
Certainty
Continuity
Precision
Uniformity
Rigidity
Predictability

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Sources of Law Cont.

Advantages & Disadvantages

of Precedents
Advantages
Certainty
Development of law
Details
Practicality
Flexibility

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Sources of Law Cont.

Disadvantages
Rigidity
Danger

of illogical
Bulk and complexity
Slowness of Growth
Isolating the ratio decidendi

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Sources of Law Cont.

Customary Law or Customs
It is defined as usage that has obtained the

force of law and is binding to a particular

place or community.
Customs are not written laws, develop from a
particular usage or traditions.

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Sources of Law Cont.

Essential Elements of Customs
Time: It must have been in use for a long time immemorial
Continuity: The right to use that custom must not have

been interrupted

Acceptability: The custom must have been accepted as

binding by common consent

Must be reasonable: A custom cannot be reasonable if

it is in conflicts with fundamental
and the constitution

of common law

Must be Certain
Must be Obligatory

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Sources of Law Cont.

Islamic Law
It applies to people who confess Islam
It is used in matters of Marriage, Divorce,

Guardianship, Inheritance and Waqf.

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Sources of Law Cont.

Received Laws

These are law received from England

through India via Tanganyika Order in

Council of 1920 commonly known as the
Judicature and Application of Laws
Ordinance (JALO) N0.7 of 1920 [R.L. Cap.2]
and Ordinance No.1 of 1961[R.L. Cap.453]
It is now known as the Judicature and
Application of Laws Act (JALA) Cap 358 R.E
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TANZANIA COURT SYSTEM

HIERARCHY
The Judiciary is the creature of the

Constitution of the URTvide Article 4

The Judiciary is the body empowered by
the Constitution to dispense Justice by
giving decisions on various legal issues
brought before through interpretation of
the laws of the land.
Court system refers to the Legal
Framework of Judicial Organs in Tanzania.
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TANZANIA COURT SYSTEM

HIERARCHY Cont.
THE COURT OF APPEAL
It is established by virtue of Article 117

of the URT Constitution, 1977.

It is an Apex and Supreme Court of the
land.
It is a union body
It has only Appellate Jurisdiction

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TANZANIA COURT SYSTEM

HIERARCHY Cont.
THE HIGH COURT
It is established by virtue of article 108 of the

Constitution of URT 1977.

It has both Original & Appellate jurisdiction
It has unlimited jurisdiction in all legal matters
It is organised through divisions which are:-

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TANZANIA COURT SYSTEM

HIERARCHY Cont
Main Registry
The Land Division
The Labour Division
The Commercial Division

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TANZANIA COURT SYSTEM

HIERARCHY Cont
THE RESIDENT MAGISTRATE

COURT & DISTRICT MAGISTRATE

COURT.

These are two distinct Courts but have

concurrent jurisdiction.
They are established by the Magistrate Court
Act, Act. N0.2 of 1984 [Cap. 11 R.E)
The District Court is established by Section 4
(1) of MCA 1984 in every district of Tanzania.
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TANZANIA COURT SYSTEM

HIERARCHY Cont
The District Court has geographical

jurisdiction within the district it is formed.

It has appellate and original jurisdiction in
Criminal and Civil matters.
Pecuniary Jurisdiction is 50M for immovable
properties & 30M for movable properties.

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TANZANIA COURT SYSTEM

HIERARCHY Cont
Resident Magistrate Court
It is established by ORDER of Chief Justice

under Section 5 (1) of MCA, 1984

It exercises geographical jurisdiction as may
be specified in the order establishing it.

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TANZANIA COURT SYSTEM

HIERARCHY Cont
It has jurisdiction in all proceedings in respect

of which jurisdiction is conferred and any law

for the time being in force conferring power to
the Resident Magistrate

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TANZANIA COURT SYSTEM

HIERARCHY Cont
The Primary Court
It is established under section 3 of the MCA

1984 in every district.

It has jurisdiction in all proceedings of a civil
nature where the applicable law is customary
law or Islamic law, and for recovery of civil
debts, rent or interest where the value of the
subject matter does not exceed Tshs. 5M

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TANZANIA COURT SYSTEM

HIERARCHY Cont
It has jurisdiction for recovery of civil debts

arising from contract where the value does

not exceed Tshs. 3M.

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