PRECEDENTS; A judgment or decision of a court that is cited in a subsequent dispute as an

example or analogy to justify deciding a similar case or point of law in the same manner. 1 One

famous author, Glanville William explained the doctrine as that cases must be decided the same

way when their material facts are the same but obviously not all facts to be the same, but the

legally material facts may recur and it is with these that the doctrine is concerned 2. This doctrine

is a common law doctrine which entails the blindness of decision from the courts of record to the

subordinate Courts

TYPES OF PRECEDENT

ORIGINAL PRECEDENT

Where there is no previous decision on a point of law that has to be decided by a court, then the

decision made in that case on that point of law is an original precedent. Where the court has to

form an original precedent, the court will reason by analogy (considering the cases that are

nearest to it in principle)3.

DECLATORY PRECEDENT

The judges in the case merely declared what the law has always been. Declaratory theory of law

making. According to William Blackstone judges do not create or change laws. They simply

discover and declare what the law has always been. This means that case law operates

retrospectively since the law as declared has always existed4.

1
I, Mcleod, legal method, Macmillan law masters
2
G, William, learning the law, 8th edition, universal publishing company, 2010, pg 92
3
M. Mwakisiki, legal method, bepress, 2017
4
ibid
 BINDING PRECEDENT

A past decision is binding if: The legal point involved is the same as the legal point in the case

now being decided. The earlier decision was made by a court above the present court in the

hierarchy, or a court at the same level which is bound by its own past judgments5.

PERSUASIVE PRECEDENT

The one which the court will consider and may be persuaded by, but which does not have to be

followed, such as obiter dicta, a dissenting judgment or ratios from decisions by courts lower in

hierarchy6.

STARE DECISIS

the doctrine that rules or principles of law on which a court rested a previous decision are

authoritative in all future cases in which the facts are substantially the same 7 OR doctrine or

policy of following rules or principles laid down in previous judicial decisions unless they

contravene the ordinary principles of justice8.

The doctrine of judicial precedent is based on stare decisis. That is the standing by of previous

decisions. Once a point of law has been decided in a particular case, that law must be applied in

all future cases containing the same material facts. The doctrine is: all courts are bound to follow

decisions made by courts above them; appellate courts are normally bound by their own past

decisions.

5
ibid
6
ibid
7
T, Leon, understanding legal methods, oxford publishers, 2012,pg 20
8
www.britannica./meaning-of-staredecesis/html, accessed on 28th Feb 2021
History of the Doctrine of Stare Decisis

The doctrine of stare decisis, or precedent law, has its beginning in 12th century England, when

King Henry II established a unified system of deciding legal maters. In this system, referred to as

“common law,” the decisions of the King’s judges in various regions were respected by the other

judges in deciding similar cases9. As the colonists came to America, they brought with them the

common law system, including the principle of stare decisis. Over the centuries, the principle of

stare decisis has also become known as “binding precedent,” or “binding authority.”

THE APPLICATION OF THE DOCTRINE OF PRECEDENT AND STARE DECESIS IN

TANZANIA

First we will look at the history of the doctrine in the united republic of Tanzania

HISTORY OF THE DOCTRINE IN TANZANIA

The history and the development of the doctrine of precedent in Tanzania is mainly divided in

three phases that is 1. Before colonialism, 2. During colonialism, 3. After colonialism

In the first phrase, Tanzania had mainly two states and system which are the first the centralized

state system and the second is the non-centralized system by which in all the said system there

were no formal procedure to adjudicate their conflicts, every society had its own way of

adjudication, the wisdom of the leaders the chief was the one that was respected and honored and

sometimes was not bound by precedent but decided according to situation though some times the

decisions of the forefathers and their religious believes were supposed to be adhered10.

9
www.merriamwebster.com/historyonthedoctrineofprecedent/com,accesed28,feb,2021
10
http://tanzanialaw.blogspot.in/2011/brief-history-of-judiciary-of-tanzania.html, accessed on 27,feb,2021
In the second phase there are three laws that need to be looked at when studying the history of

the doctrine In Tanzania, that is Tanganyika Order-in- Council of 1920, the Judicature and

Application of Laws Act and the Interpretation of Laws and General Clauses Act, 1972 as

repealed by the Interpretation of laws Act, Chapter one 11. During the second phase that is during

colonialism, the applicability of the doctrine can be traced from the time the British started to

colonize the country, they introduced the TANGANYIKA ORDER IN COUNCIL 12, under the

order it established the court of record referred as the high court which had full jurisdiction on

civil, criminal, over all matters and persons in the territory of Tanganyika and it also established

other subordinate courts, further more it established qualified personnel known as judges who

will be decision makers in the high court and magistrates in the subordinate courts13.

In the third phase which is after independence, the independent government retained the court

system which was also followed by the British in Tanganyika, under SEC 2 of the

JUDICATURE AND APPLICATION OF LAWS ACT, the High court of Tanzania is

established with full jurisdiction over civil and criminal matters14. The Union Constitution of

1977 as amended in 1984 made provisions for the establishment of the Court of Appeal of

Tanzania. There was another Act enacted for the establishment of the Court of Appeal of

Tanzania that is The Appellate Jurisdiction Act of 1979. The Court is therefore the final Court

for appeals originating from Tanzania Mainland and Zanzibar in all matters except Islamic law

and disputed between Mainland and Zanzibar governments over the application and

interpretation of the Union Constitution15.

11
Act No. 4 of 1996
12
TANGANYIKA ORDER IN COUNCIL, 1920
13
ibid
14
Judicature and application of laws Act [CAP 358] R.E 2002
15
M. mwakisiki, legal method 1, bepress, 2017
THE APPLICATION OF THE DOCTRINE IN TANZANIA

To view on the application of the doctrine in Tanzania the following cases are taken as case

studies.

TANZANIA REVENUE AUTHORITIES V LEONARD LAURENT16

Mr. Laurent Benedicto, Mr. Leonard Laurent (the Respondent) approached this court and

initiated Land Case No. 3A of 2012 on 20th March 2012 against Tanzania Revenue Authority

(the Applicant). The Respondent sued the Applicant for a piece of land measuring hundred (100)

and one hundred and fifty (150) paces located at Mutukula within Missenyi Ditrict in Kagera

Region and prayed for, among other things, a court declaration that the land belongs to the late

Laurent Benedictor. After a full trial, on 20th July 2018, this court decided in favour of the

Respondent (the decision). The decision dissatisfied the Applicant andimmediately preferred a

notice of appeal to the Court of Appeal (the notice) registered on 17th August 2018 intending to

appeal to the Court against the decision.

During the hearing of the case applicant’s attorney used the following cases as precedents

Lala Wino v. Karatu District Council and Josephine Leopold Peter v, United Construction

Co. Ltd

To bolster his submission in favour of the prayers, Mr. Njoka argued that the precedent of the

Court of Appeal in Lala Wino (supra) allows the new enactment in the provision of section 47

(1) of the Act to apply retrospectively and proceedings in Josephine Leopold Peter depicts that

this court may grant leave to assist Applicants in a circumstances like the present one to reduce

costs and save time of filing another Application for extension of time. Finally, Mr. Njoka
16
Land case NO. 3A of 2012
invited the provision of section 3A enacted in the Civil Procedure Code [Cap. 33 R. E. 2002] (the

Code) via the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2018 and invited this

court to interpret the principle of overriding objective in granting the second prayer.

Also another case is the case of

CHARLES MUSHATSHI V, NYAMIAGA VILLAGE COUNCIL & ANOTHER17

On 17th June 2016, Mr. Charles Mushatshi (the Plaintiff) and another person named Mr. Edison

Myungi Ndahagalikiye approached and filed a plaint in Land Case No. 8 of 2016 asking this

court to resolve a dispute on land ownership located at Nyamiaga Village within Ngara District

in Kagera Region. In the plaint, the two persons claimed that Ngara District Council, Nyamiaga

Village Council and the Board of Trustees of Rulenge Diocese have trespassed unto their arable

land owned under customary law.

In deciding the case the following precedents were applied

DANIEL D. KALUGA V, MASAKA IBEHO & FOUR OTHERS 18 and ARON BIMBONA

V, KAMIHANDA19

the Plaintiff stated that his land is ten (10) acres located at Mumiterama Hamlet Within

Nyamiaga Ward in Ngara District of Kagera Region (the land). With regard to persons

neighboring the disputed land, the Plaintiff identified them as follows: Mr. Solomon Rudahula

(Eastern part); James Bazitsa (Western part);Elisante Elia (Northern part); and Ntelungwe

Village (Southern part) and the land was demarcated with sisal trees to separate it from other

17
Land case No. 8 of 2016
18
Land case appeal No. 26 of 2016
19
Land case appeal No. 63 of 2018
neighbors' lands.

Another case is the which used precedents is the case of

KARIMU SHAIBU V, MUSSA HALFANI BAHATISHA20

This is a second appeal filed by Karimu Shaibu (the appellant) after his first appeal at the District

Land and Housing Tribunal of Mtwara through Land Appeal No. 45 of 2015 against the decision

the Ward Tribunal of Mtonya in Land Case No. 3 of 2015 was unsuccessful. He has filed four

grounds faulting the two lower tribunals for dismissing his claim. the court decided to invite the

parties to address it on the competency or otherwise of the appeal before considering the issue of

locus standi He argued that according to law, proceedings on behalf of a deceased person may

only be commenced by the administrator of the estate of the deceased as was held by this Court

in the case of Zuhura Bakari Mnutu v Ali Athumani,

Therefore in determining matters relating to precedents the following principles were laid down

(i) Decisions of the Court of Appeal of Tanzania are normally binding on the Courts but

as a final court of appeal it is free to depart from such a decisions when it appears

right to do so.

(ii) The Court of Appeal of Tanzania is not bound to follow a decision of its own if it

satisfied that the decision was given per incuriam.

(iii) Decisions of the Court of Appeal of Tanzania are binding upon any tribunal by virtue

of the common law doctrine of precedent

20
Land case appeal No. 17 of 2015
 Conclusively; The doctrine of precedent is one of the important doctrines which

in relationship to other doctrine it tries to give justice to anyone who seeks the Court

to determine justice. This doctrine binds the lower Courts by the decisions of the

upper Courts, the applicability of this doctrine can be traced from the ancient times

and the development from the ancient time is seen but still a new development should

be considered to bring about justice. The new development in precedent is needed in

different aspects mostly the aspect of science and technology.