INTRODUCTION TO BUSINESS

LAW

© 2024
PRESENTATION BY:

PHD, LLM, LLB, ADV. E. E KIMEY

Thursday, November 14, 2024

 SUB-ENABLING OUTCOMES
LECTURE ONE
• 6.1.1 Meaning and Sources of Law in Tanzania.

• 6.1.2 Describe the Tanzanian Legal System.

• 6.1.3 Describe the Court System of Tanzania.

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 MEANING OF LAW
• Writers on jurisprudence have found great difficulty in defining
the word law. Sir Fredrick Pollock, a jurist, in his book ‘First
Book of Jurisprudence’ says:
• “we find in all human sciences that those ideas which seem to
be most simple are really the most difficult to grasp with
certainty and express with accuracy…”
• Therefore Jurists and
legal scholars have not arrived at having
a unanimous definition of law. The problem of defining law is
not new as it goes back to centuries.
3
.
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 MEANING OF LAW

• According to Blackstone, he defines law as “A rule of civil conduct

prescribed by the supreme power in the state, commanding what
is right and prohibiting what is wrong” of this it may be said that
it is not at all a definition of ‘law”- jus (A system of
rules/principles in its widest acceptation) but not “a law”- lex
(represent a statute).
• Whereas Austin says- “law is the aggregate of the rules set by
men as political superior or sovereign to men as politically
subject” he means that the law is the command of sovereign. It
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imposes a duty and duty is backed by a sanction from the state.

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 MEANING OF LAW

• Salmond defined law as “the body of principles

recognized and applied by the state in the administration
of justice” means Law consists of a series of rules
regulating behaviour, and reflecting, to some extent, the
ideas and preoccupations of the society within which it
functions.
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 MEANING OF LAW

• Or, more shortly: It will be noticed that the above

definition, are not of a law, but of the law, and our first
concern is to find the whole safest definition of law
• Therefore we may may attempt to define law as “a rule
of conduct binding to members of a commonwealth as
such”.
• See page 29, A First Book of Jurisprudence, Sir
FREDERICK POLLOCK
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 ATTRIBUTES OF LAW
• From the above definition, the nature of law has some of
the following attributes;
• Law is normative, meaning that the members of society
are bound to behave in accordance with the law.
• Law is punitive and provides sanctions against the
persons imposed by the state.
• Law is permissive and prohibitive- allows certain
conducts and imposes restrictions on people of a given
society.
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 IMPORTANCE OF LAW
• Maintain Peace and Order.
Penal laws (criminal law) protect public morality, e.g. , criminalizing
murder, fraud, theft, graft, pornography, etc.
• Protection of Liberties and rights.
Law protect various liberties and rights of individual from violations
and also regulate human and state interactions
• Resolve Disputes
Disputes are unavoidable in a society made of persons with different
needs, wants, values, and views. The law provides a formal means for
resolving disputes the court system.
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 SOURCES OF LAW

• "source of law" consist of declarations of legal

rules by a competent authority. It also, broadly,
refers to the power from which the law derives its
validity and include a code of binding rules that
enable any state to govern its subjects and
interactions with other states/organs. There are
several sources of law in Tanzania, namely:
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 THE CONSTITUTION OF URT(1977)
• The Constitution of United Republic of Tanzania is a supreme and
fundamental law of the country. The principle of constitution
supremacy is that it establish all organs of the state and any law which
inconsistence with it shall be declared void- Article 64(5). It is the
foundation of legal framework of the state.
• It defines powers and limits of each Organs of the state to include: the
Judiciary article 107A-128 and parliament article 62-101 and
Executive- article 33-61,
• The Constitution provides for fundamental rights and freedom- article 12
to 24, article 25 to 28 imposes duties on every individual.

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.
 STATUTORY LAWS

• Are laws passed by a legislative body and also to include a legislation

enacted by a parliament- the legislature or administrative boards and
municipal authorities.
• See Black’s Law Dictionary, 8th Ed. 2004.
• Statutory laws are divided into; Principal legislations (are Acts passed by
the Parliament of URT) and have come into force;
• Whereas the Subsidiary legislations such as by-laws, regulations, rules,
directives, orders and etc. are passed by a body delegated by the
Parliament of the URT through an Act of Parliament. Article 97(5) of CURT.
• NB: For a subsidiary legislation to have force of law it must be in
accordance with the Constitution, the Act of Parliament, scrutinized
11
by the
designed committee of the Parliament and gazetted.
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 PRECEDENT

• Precedents are is a basic principle of common law. A precedent is a

decision of the court which lays down a legal proposition.
• The decision of the superior court of record must be followed by
subordinate courts. Such precedents are known as Authoritative
precedents.
• Whereas Persuasive precedents do not bind subordinate courts per se
but guide such courts in reaching a just and fair decision.
• See DAVID CHARLES vs SENI MANUMBU, Civil Appeal No. 31 of
2006, HC at Mwanza- cardinal principle in law that unlicensed
individuals cannot issue loans with interests. This position binds all
subordinate courts. Thursday, November 14, 2024 12
 COMMON LAW AND EQUITY

• Is a body of laws that were imposed in Tanganyika during British colonial rule. They were
received by virtue of what has come to be referred as ‘reception clause’ dated 1st of
January, 1920.
• There are two types of reception clauses:
• General reception clause was a provision in the Tanganyika Order-in-Council, 1920-
established the High Court of Tanganyika as a superior court of record
• Special Reception clause refers to reception made by local statutes mainly Acts of
parliamnent which permitted application of English law.
• See JALA, Land Act Cap 113 R.E. 2019, case of Tanganyika Garage Ltd vs Marcel G. Mafuruki
(1975) LRT 23.
• Received laws are applicable as of today in Tanzania if the local circumstances permit and
courts are mandated to apply substance of common law, doctrine of equity and
statutes
.
of general application. Thursday, November 14, 2024 13
 INTERNATIONAL LAW

Comprised of rules, regulations, or customs that regulate the relation of

states.
• In another word, it is a body of rules established by custom or
treaty/convention and recognized by nations as binding in their relations
with one another.
• International law may only be applicable in Tanzania if it has been acceded
by the government and then ratified by the Parliament. Also it may be
domesticated as a legislation or subsidiary legislation.
• The Treaty for the Establishment of East African Community was ratified
and passed into a legislation as a The Treaty for the Establishment of
East African Community Act. 14

Thursday, November 14, 2024

 CUSTOMARY LAWS

• Rule of or body of rules in which rights and duties are acquired or

imposed or established by long usage among African
communities and accepted for having force of law.
• The applicability of customary law is restricted to matters of a
civil nature only, members from same society or communities
with similar customs.
• Customary rules or laws that are inconsistence with the
Constitution or provisions in Acts of Parliament are null and void.
• See Maagwi Kimito vs Gibeno Werema [1985] TLR 132
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 RELIGIOUS LAWS
• Mainly attributed to Islamic faith:
Islamic law is the predominant
one and govern matters of succession and to some other matters
such as marriage, guardianship, divorce, inheritance, Wakf, partly
to banking etc.
• Its Applicability is restricted to matters of a civil nature only and
to members or persons who profess islam.
• Islamic laws that are inconsistence with the Constitution or
provisions in Acts of Parliament are null and void or inapplicable.
• In the matter of the estate of the late Salum Omari Meremi
[1973] LRT 80. Thursday, November 14, 2024 16

.
DESCRIPTION OF TANZANIAN LEGAL SYSTEM

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 MEANING OF LEGAL SYSTEM
• There is no uniform definition or common criteria for such
a definition of the term “Legal systems”.
• However Legal System is a framework which establish a
substantive and procedural mechanism for dispensing
justice, powers and limits of constitutional organs in
enforcing law.
• The following is a list of the five major legal systems used
throughout the world: Civil Law, Common Law, Customary
Law, Religious Law and Mixed Law.
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 CATEGORY OF TANZANIAN LEGAL SYSTEM:
THE MIXED LEGAL SYSTEM

• This refers to a combination of various elements of legal systems

that are pertinent, co-exist and used conjunctively in a single
state. In the Tanzania, the most predominant legal system is the
Common Law. But also Common Law legal system co-exist with
other legal systems which have such as civil legal system,
customary legal system and religious legal system i.e. basic
features of mixed legal system include: ADR, Precedents,
Application of binding Statutes or Codes and personnel who
dispense justice/experts of law- lawyers.
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 CATEGORIES OF LEGAL SYSTEM IN THE WORLD:
THE CIVIL LEGAL SYSTEM

• The distinguishing feature of the civil legal system is that it takes

its origins from Roman law. It is comprised of codified system of
laws e.g., civil code, codes covering corporate law,
administrative law, tax law and constitutional law. The legislative
enactments are considered binding for all. Therefore, judges are
not expected to use judicial discretion or to apply their own
interpretation in a case.
• Civil
systems applies both procedure and substantive laws. The
role of judges is elevated role- examine witnesses. It has
separate court system i.e. Courts are immune from jurisdiction of
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other courts.
 COMMON LEGAL SYSTEM
• Great importance is given to the decisions of judges to be followed in
later similar cases (precedents). The decisions of higher courts are
binding on lower courts, and much of the law is left to the courts to
develop it as such.
• In many jurisdiction, when a court consists of several judges, each can
express a separate opinion. The opinions of individual judges have the
sort of prestige. Scholarly writing has some influence, the opinion of
practising lawyers professional opinion has more weight.
• The role of judge and magistrate is that of an umpire/referee. Also
Judges are assisted by jury in reaching a verdict.
• In concluding a case, one side or party to a case must win.
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 CUSTOMARY LEGAL SYSTEM
• Customary legal sytem is rooted in the customs of a community. Common
attributes of customary legal system is that customs may be unwritten,
customs govern social relations, and customs are widely accepted by the
community’s members. Customary legal system is found in many parts of
Tanzania and Africa is based on patterns of behavior (or customs) that have
come to be accepted as legal requirements or rules of conduct within a
particular country. The customary legal system is usually unwritten and
often dispensed by elders, passed down through generations.
• Basic Features of customary legal system is that: Elders act as
Mediators/Judges to disputes. Application of rules resembling to ADR-
mediation/negotiation. Outcome and Determination of dispute is to reconcile
parties amicably. Thursday, November 14, 2024 22

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 RELIGIOUS LEGAL SYSTEM
• The religiouslegal system is based on religious beliefs. Islamic law (or
Sharia law) is the most widespread religious legal system, and it
governs all aspects of public and private life. Islamic legal system is
found throughout Africa, the Middle East, Central Asia, and South Asia,
and their laws widely vary among Muslim countries.
• Religious legal system apply law that emanate from texts or traditions
within a given religious tradition. Many Islamic nations have legal
systems based in whole or in part on the application of Quran. Islamic
law is based largely on the teachings of the Koran. The unique ground
for the validity of Islamic law is that it is the manifested will of the
Almighty: it does not depend on the authority of any earthly law-giver.
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 DESCRIPTION OF COURT SYSTEM
IN TANZANIA FOR BUSINESS TRANSACTIONS

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 COURT OF APPEAL OF TANZANIA

• The CA of Tanzania has been established as per article 116 read 117-
123 of the Constitution of URT, read together with the Appellate
Jurisdiction Act, and Court of Appeal Rules.
• The constitution or composition of the court of Appeal of Tanzania
include the Chief Justice and Justices of Appeal.
• The CA of Tanzania has Appellate jurisdiction and Revisional
jurisdiction from decisions of the High Court and subordinate courts
having extended jurisdiction.
• And Review jurisdiction over its own previous decisions. It is a
court of record superior to all.
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 THE HIGH COURT OF TANZANIA MAINLAND
• First, established per article 108 of the Constitution of URT. The High
Court of Tanzania mainland has original and unlimited jurisdiction on
every matter to which no law specifies.
• And secondly has jurisdiction in all matters, which according to the legal
traditions obtaining in Tanzania are ordinarily dealt with the High Court
or according to procedure and practice observed by and before Courts of
Justice and justices of the Peace in England.
• The composition of the High Court is Judge Kiongozi and other puisne
judges of the High Court. It has four Divisions namely; Commercial,
Labour, Land, Corruption economic Offences.
• It has Original, Revisional, Appellate and Review jurisdiction.
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 THE HIGH OF ZANZIBAR
• Established under pat one of Chapter six of the
constitution of Zanzibar of 1984. It is a court of record
with unlimited jurisdiction. It is manned by the Chief
Justice and other judges whose number must not be less
than two. (article 93(2)).
• It has Original, Revisional, Appellate and Review
jurisdiction on matters from Zanzibar.

JACKSON SIMANGO MAGOOGE Thursday, November 14, 2024 27

 COURT OF RESIDENT MAGISTRATE AND DISTRICT COURT
• Established under Section 4 & 5 of the Magistrates’ Courts Act,
Cap 11 R.E. 2019 in every district and region. They are presided
over by Resident Magistrates. Original Jurisdiction of DC is TZS
200 Million for claims arising from movable properties and TZS
300 for immovable properties section 40 & 41 of Cap 11. In
peculiar sense the DC has the revisional and Appellate
jurisdiction over matters arising from Primary courts. Original
Jurisdiction of RMs Courts is the same as that of DCs.
• DCs jurisdiction in Commercial Suit, immovable property which
the value does not exceed TZS 100 Million and where the subject
matter is capable of being estimated at a money value but does
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not exceed TZS 70 million. Thursday, November 14, 2024 28

 PRIMARY COURT
• Established under section 3 of the Magistrates’ Courts Act, Cap 11
R.E. 2019. The provisions relating to the jurisdiction of primary courts
in civil proceedings are set out in sections 18 (1),19 (1)(b) and 19 (1)
(c) of the Magistrates’ Courts Act and in the Fourth and Fifth
Schedules to the Act.
• The pecuniary Jurisdiction of the Primary court is thirty for movable
properties and fifty millions for immovable. Also entertain suit of civil
nature, to include commercial suits whose value does not exceed
pecuniary Jurisdiction mentioned above.
• PCs are presided over by Primary Court magistrates and Resident
Magistrates with an assistance of at least two assessors. They are
situated in every locality.
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 QUASI JUDICIAL BODIES REGULATING BUSINESS
TRANSACTIONS
• The Tax Revenue Appeals Board (TRAB), the Tax Revenue
Appeals Tribunal (TRAT) established under the Tax
Revenue Appeals Act, Cap 408, [R.E 2009].
• The Fair Competition Commission and Fair Competition
Tribunal established under the Fair Competition Act
(2003)
• The Commission for Mediation and Arbitration (CMA) was
established under the Labour Institutions Act, Cap 300.
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