Chiriko Haruni David versus Kangi Alphaxard Lugora and 2 Others; Civil Appeal No 36 of 2012: Court of Appeal of Tanzania at Dar es Salaam (Full Bench) (Unreported)
- Legal Method
- Full Bench – powers of the full bench of the Court of Appeal of Tanzania.
- Stare decisis – when the Court of Appeal can depart from its earlier precedents?
- Statutory interpretation – principles applicable.
- Shall-whether the use of the word shall makes it mandatory
- Election Petitions
- Security for costs – whether a person who can deposit the maximum amount should also make an application to costs.
Held:-
(i) In the practice of the Court of Appeal a full Bench may overrule an earlier Precedent in one of two ways. In the first place it may do so in the process of resolving a conflict in the decision of the Court. However, in appropriate circumstance a full bench may, when so required, depart from previous decision of the Court without there being conflicting decisions on the matter to an issue. The jurisdiction to do so may be traced to Dodhia’s case.
(ii) A full Court of Appeal has no greater powers than a division of the Court but if it is to be contended that there are grounds, upon which the Court could act, for departing from a previous decision of the Court, it is obviously desirable that the matter should, if practicable, be considered by a bench of five judges.
(iii) The full Bench of the Court of Appeal may be convened to overrule a previous decision or to depart from a previous decision; and the grounds or circumstances that may justify the full Bench are not closed in that ultimately every case will be decided on the basis of its own peculiar facts. Typical grounds would be for example, where there is conflicting decision of the court, where a decision was made per incuriam or where the decision is wrong per se.
(iv) A Bench of three justices of Appeal can depart from a previous decision of three justices of the same court.
(v) When the question arises as to the meaning of a certain provision in a statute, it is not only legitimate but proper to read the provision in its context. The context here means, the statute as a whole, the previous state of the law, other statutes in pari material, the general Scope of the statute and the mischief that it was intended to remedy.
(vi) One of the cardinal rules of construction is that courts should give legislation its plain meaning.
(vii) The traditional wisdom is that the search for legislative intent is central to statutory interpretation. And the legislative intent is normally ascertained from the words it has used. The words used may be found in the title, preamble chapter heading, marginal notes, punctuations, definitions etc of the statute. However, when a statute could be interpreted in more than one fashion, the legislature’s intention must be inferred from the sources other than the statute. In this sense, there are other aids which are not contained in the statute but may be found elsewhere.
Those aids may be historical background, statement of objects and reasons, the original Bill as drafted and introduced debates in the legislature, state of things at the time a particular legislation was enacted, judicial construction, legal dictionaries and common sense.
(viii) It is not always the case that where the word ‘shall’ is used that should mean that the function so conferred must be performed. Regard must always be given to the context subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory / discretionary.
(xi) A petitioner who is willing and able to deposit the maximum amount is not required to make an application for determination of the amount payable as security for costs. It is only a petitioner who cannot deposit the maximum amount who is required to make an application for determination of the amount payable as security for costs.
(x) When the Court of Appeal departs from its previous decision, the overruled decision continues to be a good law to the extent that it continues to bind the parties thereto.