INTRODUCTION

Common law is a body of unwritten laws based on legal precedents established by the courts1.common
law legal system, is the system originated from England to their colonies in Africa .Tanganyika is the one
among the colonies that was colonized by British. Legal system was spread by British to its colonies which
later on became common law system. When colonial masters colonized Tanganyika establish their colonial
system. The following are the indicators that shows applicability of common law regal system to
Tanganyika colony and still in use.

MAINBODY

RECEIVED LAWS, these are laws that we received from our colonial masters. Examples, Received Laws
established under Section 2(3) of The Judicature and Application Laws Act, CAP 358 of the Laws of
Tanzania[R.E. 2002] (JALA) these include Common Law, and Doctrine of Equity, Statutes of General
Application of England, applicable before the 22 of July 1920, which is deemed to be the Reception date
for English Law in Tanzania.2So this, shows that common law was and it is still used in legal system of
Tanganyika.

STATUTES OR ACTS OF THE PARLIAMENT, this is one among the indicators which show that
common law was and still in use until date . Same Statutes or Acts of Parliament were enacted pre-
independence colonial administration, as order in council , can now intensify as Act . For example like
Penal code Cap 16 R: E 2002, criminal procedure Act Cap 20, the law of evidence Act CAP 6 R: E 2002
etc. These principal legislations and subsidiary legislations which, are published in the Government 3.The
Laws Revisions Act of 1994 Chapter Four of the laws of Tanzania [R.E.2002,] established that all
legislations previously known as Ordinances, those which were enacted by the pre- independence colonial
administration, as Orders in Council, can now be legally recognized as Acts. Also this shows that common
law which existended is still existing up to date in Tanganyika legal system.

JURISDICTION OF THE COURT. During colonial era in Tanganyika legal system High court was established
under Article 17(1) this means that the high court was vested unlimited juridistiction in civil and criminal
cases , over all persons and all matter in the territory of Tanganyika.4And also the high court could apply

1
https://en.wikipedia.org/wiki/Common_law accessed on 16/12/2019 at 10:05 am
2
The Judicature and Application of Law Act [CAP 358 R:E 2002]
3
The Laws Revisions Act [CAP 4 R:E 2002]

4
Tanganyika Order in Council ,1920
civil procedure and penal code of India, other applied Indian Act ,Tanganyika ordinances, Substance of
common law, equity and statute of general application. This shows the existence of applicability of
common law legal system because it is mutatis mutandis to the high court by virtue of section 2 (1) vested
with full and unlimited Jurisdiction over all civil and criminal matters, that is to say it shall have power
over any matter not expressly provided by the law the constitution or any other law5. This also indicates
that common law was and still in existence.

ADVERSARIAL SYSTEM. During colonial period as far as subordinate courts managed by European officers
were concerned, there was no uniform procedure followed in native cases. In adversarial system the judge
makes sure both sides get the chance to present theircase fairly.At the end trial or hearing,both sides then
summarize their case to the judge or jury. So adversarial procedure which occurred in the decision which
based on “winner-gets-all” .In most cases it was the presiding magistrate who determined what
procedure to follow, although invariably the magistrate tried to adjust the procedures which they
followed in non-natives cases to native cases.6

Example in the case of Imerimaleva & others v.Dima Nhorongo7 .the In Appellants were sued by the
Respondent for allegedly conversion of the cattle and goats of the Respondent. the course of trail the
Appellants stated that the Respondent was a cattle rustler and that there was a time the Ubongo Villagers
,Sikonge ward (Tabora) boycotted the Respondent as means to punish him of his ‘crime ‘.One of the
Appellants when asked by Chipeta,J.:if he approved of ostracisms being appropriate punishment for crime
stated that he would not approve but ‘it was the ends that justified the means.This is clear evidence that
in pre-colonial societal level, ostracisms was a punishment for breach of the law. The role in that system
is to hold the balance between the contending parties without himself taking part in their disputations.

CONCLUSION:

Generally; Although common law was enforceable in Tanganyika during the British colonial rule, during
this period British colonial State established legal system.This means therefore that British legal system
applied received laws and native laws. Example of the applied law were;law of Evidence Act CAP 6

5
Judicature and Application of Laws Act

6
Ibid pp. 32 – 33S
7
(1991 ) TLR 1
R:2002,Criminal procedure Act CAP 20.All of this were and are still in use .Also common law determines
individual rights especially property rights.since it balances individual rights against the best interests of
society.S