THE DOCTRINE OF PRIVITY TO CONTRACT BY MWAKISIKI MWAKISIKI EDWARDS

INTRODUCTION

The assertion that only parties to contract can sue or being sued under it is commonly known as doctrine of privity of contract and largely is a common law principle or mechanism by which contractual rights and liabilities are limited to the contracting parties. The logic behind this is that only contracting parties have accepted the terms and responsibilities stipulated in the agreement.  Basic rule is that if there is no privity to contract, there is no right to sue and cannot be sued .

This doctrine is to the effect that only a person who is party to a contract can sue or be sued on it. It means that only a person who has provided consideration to a promise can sue or be sued on it and it also means that a stranger to consideration cannot sue or be sued even if the contract was intended to benefit him .

Privity of contract is the relation which exists between the parties to a contract which enable one person to sue another on it. The privity of contract principle is to the effect that only parties to a contract acquires T and incur liability under it. As such a stranger to a contract cannot sue or be sued on it .  

DEVELOPMENT OF DOCTRINE OF PRIVITY TO CONTRACT IN ENGLAND

The doctrine of privity to contract that is only parties to contract can sue or be sued under the contract and not the third party, in England developed through a number of courts decisions as it shown below:-

In Tweddle v Atkinson , In this case two couples intended to get marriage; before the marriage the parents that are father of the husband and father of the wife agreed that the father of the wife should pay £290 to the husband and the real father will only pay £ 100. This promise was not fulfilled by the father of a wife since he paid only £ 90. Therefore the husband instituted a case against the father of the wife. The issue before the court was whether the husband of a wife who is not the party to the contract could sue on it. 

It was held that the husband has no right to sue because he is not a party to a contract. This is because there is existence of relationship between two fathers that is the father of the husband and the father of the wife. The husband is regarded as a beneficiary or a stranger. No act could be brought to the court by the party who is stranger to the contract. Also it is established principle that no stranger to the consideration can take advantage of the contract although made for his benefits. It is important to note that in this case the plaintiff was both stranger to contract and consideration.

Similarly, the above position was affirmed in the case of Dunlop Pneumatic Tyre Co., Ltd v Selfridge & Co., Ltd , where the appellants in this case (Dunlop) who was manufacturers of motorcar tyres sold some of the Tyres to on Dew and Co, with an agreement that these tyres will not be sold below the list price. Dew & Co on their side sold some of the tyres to the respondents (Selfridge& Co.) with an agreement that the respondents shall observe conditions as to price and the respondents also promised that they would pay the appellants a sum of $5 for every tyre sold below the list price. The respondents sold some of tyres below the list price and the appellants brought an action against them (respondents) to recover damages for the breach. 

The House of Lords held that: The plaintiff could not maintain an action against the respondents because there was no contract between the two parties. It was further observed that even if it is taken that Dew & co. were action as there was no consideration between the two and the respondents since the whole of purchase price was paid by Selfridge & Co. to Dew & Co.  Their Lordship reasoned thus: 

“…In the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue or be sued on it. Our law knows nothing of a Jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property as for example under a trust but cannot be conferred on a stranger to a contract as a right to enforce the contract in personam”.

The above quotation is to the effect that in England only people who are part to the contract can sue under it and obtain some rights there to and not a third party who haven’t furnished consideration or being the party to contract, though sometimes by a way of trust or any other means a stranger to contract can sue under the contract and obtain some rights thereto. The term Jus quaesitum tertio therefore means the right of a third party to enforce a contract to which he is not a party. However such stranger to a contract cannot sue on it in his own name ever though he is the beneficiary of the arrangement that is he cannot enforce the contract in personam.

Yet again in the case of Beswick v Beswick , where the deceased agreed with the company that that the company should employ him as a consultant and also the company should pay his wife E5 per week if he dies, so when he dies the wife claim for it in two grounds, firstly she is a beneficiary of E5 and secondly she was administrator of her husband estate. It was held that as administrator the widow could obtain an order of specific performance which would enforce the provision in the contract for benefit but that in her personal capacity for arrears she had no cause of action. 

THE POSITION OF TANZANIA AS TO DOCTRINE OF PRIVITY OF CONTRACT

The aforesaid position in England is the same as that of Tanzania; however In the Law of Contract Act is silent on the principle of privity of contract. Though section 2(1) (d) of the Law of Contract Act , permits a third person to furnish consideration for the promisee but doesn’t allow him to sue on the contract on the ground that he furnished consideration .

The applicability of the doctrine of privity to contract that is only parties to contract can sue or be sued under it, is evidenced by looking on different court’s decision regarding privity to contract as follows:-

In the case of Burns & Blane Limited v. United Construction Company Limited , Plaintiff sued for goods sold and delivered and services rendered. Plaintiff had acted as a subcontractor to defendant, the main contractor, on a construction project. Defendant did not deny that it was liable under the contract. However, defendant alleged that plaintiff’s recovery should be reduced by the amount of expenses which defendant had incurred in correcting certain defects and also by the amount of a settlement which defendant had made with a third party, the company for which the building was being constructed, because of other defects in materials which plaintiff had supplied. It was held there was no privity of contract between plaintiff and the third party with which defendant made the settlement, nor did defendant expend funds to correct those defects in respect of which the settlement was made. Therefore, the amount of the settlement should not be deducted from plaintiffs.  

In Juma Garage v Co-Operative and Rural Development Bank , This case is about Privity of Contract, and issue was whether Respondent instructed to act for an insurance corporation, whether such instruction makes the respondent an agent of Agency-Agent acting for Principal and whether the agent may sue in his own name. The fact of this case is that, the respondent owned a motor vehicle with Registration Number SU 770 which was insured with the National Insurance Corporation (NIC). The vehicle was involved in an accident, which made NIC liable for its repair. NIC took the motor vehicle to the appellant for repairs and later on, when the appellant delayed to complete the work, NIC instructed the respondent to follow up the matter with the appellant. After completion the respondent sued the appellant for general and exemplary damages amounting to TZS 5 640 000 for loss of use of the motor vehicle, and a further sum of TZS.78200 being the cost of replacing some parts missing from the vehicle at the time the respondent took delivery of the motor vehicle. The High Court allowed the claim of exemplary damages, hence this appeal.

The court held that, the fact that NIC instructed the respondent to follow up the matter with the appellant and that it, NIC, would be responsible for expenses did not mean termination of the contract between NIC and the appellant; the respondent was not party to the contract with the appellant but merely an agent of NIC.

However, the doctrine of privity to contract in Tanzania is used with certain limitations, as the doctrine is normally not imposed in agreements or contracts that falls under customary laws and this is evidenced by the following courts decisions:-

In Ephraim Obongo v. Naftael Okeyo , where by the defendant, a lorry owner, used to collect cassava from plaintiff for selling. On one occasion, his lorry driver and turn boy went to plaintiff to collect some bags of cassava. Plaintiff refused to deliver the goods, demanding that they first produce some empty cassava bags which they had evidently taken another day, or some money.

They returned to defendant’s wife, who gave them 24 bags and T.shs. 190/-, and sent a not promising that everything would be taken care of when her husband returned from a journey. Plaintiff received no more money, and sued in Primary Court for the value of the cassava he had given them, and for some other empty bags not returned, less the money and bags received. The Primary Court held that since the transaction leading to the disputes was between plaintiff and the defendant’s wife the proper party to the suit was the defendant’s wife and not the defendant. On that ground he dismissed the suit. The case went on appeal to the District court and then to the High Court. Seaton J observed that the case involved an issue of privity of contract, a contract rather subtle and technical point which, perhaps Primary Court couldn’t deal with. He said.

“…In suits between Africans living within a local community and doing business amongst themselves on a basis of trust, I consider it would not be in the interests of justice to import technical notions of privity of contract and other such notions, unless clearly required by the law to do so…”

The same position was reflected in the case of Burns & Blane Limited v. United Construction Company Limited , Plaintiff sued for goods sold and delivered and services rendered. Plaintiff had acted as a subcontractor to defendant, the main contractor, on a construction project. Defendant did not deny that it was liable under the contract. However, defendant alleged that plaintiff’s recovery should be reduced by the amount of expenses which defendant had incurred in correcting certain defects and also by the amount of a settlement which defendant had made with a third party, the company for which the building was being constructed, because of other defects in materials which plaintiff had supplied. It was held that there was no privity of contract between plaintiff and the third party with which defendant made the settlement, nor did defendant expend funds to correct those defects in respect of which the settlement was made. Therefore, the amount of the settlement should not be deducted from plaintiff’s Claim.

From the above cases it is reasonable to propose that in Tanzania although a stranger to a consideration may sue and recover on the basis of section 2(1) d of the Law of Contract Act so long as he is a party to the contract. A stranger to a contract cannot sue on it in his own name ever though he is the beneficiary of the arrangement or that he furnished consideration .

EXCEPTIONS TO THE DOCTRINE OF PRIVITY OF CONTRACT 

Like the position of England which allows a third party who is not a party to contract to sue under it, the position is the same also in Tanzania as there certain branches of the law in Tanzania allow a third party beneficiary to sue on the contract in his own name. Those contracts which allow a third party to sue on his mane include the following: 

Contract relating to trust 

Where a trust has been created and proved then the beneficiary (third party) may sue on the contract in his own name. It must be proved to the satisfaction of the court that trust was created. Once trust has been proved then the third party can sue the promissory to enforce the contract and becomes, as general rule entitled to the benefits under the contract.

A third party can enforce a contract, if it can be established that the promise intended to create a trust. “A trust is an obligation, enforceable in equity, by which a person, the trustee, holds property on behalf of another, the beneficiary ”. The law of trusts gives third party beneficiary the right to action against promisors non-performance.  

In a practical context, the promise (trustee) on the insistence by the third party (beneficiary) takes action against the promisor in case of breach.  There can be no trust in case there is no promise or property that the trustee holds for the beneficiary. Establishment of intention of trust is very important in the law of trust. 

In Tanzania Union of Industrial and Commercial Workers [TUCO] at Mbeya Cement Company Ltd v Mbeya Cement Company Ltd and National Insurances Corporation , in this case the action based on trust deed and the issue was whether plaintiff can sue on trust deed to which he is not party and whether the trust rules applicable.

The fact of the case is that, the plaintiff filed a suit against the defendants jointly, for among other relief, a specific performance of a trust deed. The basic of the suit was the trust deed rules and regulation for Mbeya Cement Company group staff endowment assurance scheme which was annexed to plaint. The counsels for defendants raised a preliminary objection for plaintiff had no locus stand to institute the suit either for lack of legal status or based on trust deed.

It was held that although the plaintiff union is capable of suing and being sued, it can only do so if the alleged wrongful acts were committed against it. It’s for each for each individual employee to sue the defendants for their rights under the trust deed and group endowment scheme.

Negotiable instrument 

The Bill of Exchange Act  under section 38 (a) empowers a holder of a bill to sue on it in his own name. A holder is defined under section 2 of the Bill of Exchange Act that "holder" means the payee or endorsee of a bill or note that is in possession of it, or the bearer thereof. A holder may sue any person whose signature appears on the bill not necessarily the immediate party. Therefore by closely observing the above provision it’s clear that such provision provides an exception to the general rule of privity of contract.

Transfer of landed property 

A person who buys property with notice that the seller or owner of the land is bound by certain obligations created by a covenant affecting the land shall be bound by them even though he was not a party to the covenant . 

Contract relating to the law of agency

An agent can take a legal action and recover damages for the loss endured by his principal. The doctrine of agency gives such rights in a business setting.  “Agency is the fiduciary relationship … the principal's control, and the agent manifests assent or otherwise consents so to act .

Under part X of the Law of Contract Act  deals with contract relating to an agency. There are provisions dealing with the effect of agency on contracts with third persons. 

Under section 178 of the Law of Contract Act  expressly provides that: Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences as if the contracts had been entered into and the acts done by the principal in person.  

Agency can arise in a number of ways but one that gives problems with the concept of privity of contract is the case of the undisclosed principal. This arises where the agent doesn’t disclose that he is acting on behalf of the principle when he enters into the contract with the third party, but simply contracts in his name. In this situation it has been held that when the agency is disclosed, the third party may elect to sue either the agent or principal and either agency or principal also may sue the third party.

Contract based on insurance 

This type of contract normally found under the Road Traffic Act , where by the third party acquire right to sue. Therefore for those owners of motor vehicle must have compulsory third party insurance in the sense that a person who is not known and foreseeable to the contract may acquire rights and that is the third party . Therefore a third party may sue the parties to the contract of insurance that is either the owner of the motor vehicle or the company of insurance or both.

CRITICISMS OF THE DOCTRINE OF PRIVITY OF CONTRACT

Despite the rule relates to the benefit of the contract and states that a contract can only be enforced by a person who is a party to the contract, or, alternatively, a person who is not a party to a contract cannot claim any benefit under it even if the contracting parties had themselves agreed that the third party should be able to enforce it . The doctrine of privity to contract is faced with some criticism among different authors and educators, such criticism leveled against the doctrine include the followings:-

Firstly, the doctrine of privity of contract it infringes the right of beneficiaries. Some contract may be made purposely for the benefits of the third party. But the doctrine limits liabilities and rights to the parties only. Hence the third part’s right is infringed. Since he/she was not a party to a contract but it was made for his or her interest. Secondly, Privity of contract defeats the intention of the parties to the contract.

CONCLUTION

Third party rights would be effective only when the contract expressly states it or if the terms in contract expressly purported to confer a benefit on the third party and it can be interpreted that the third party can be permitted to have a remedy in pursuing such benefit against them. So, all these exceptions and statutes explained above are considered important and highly beneficial in circumventing the rule when third party rights need to be established.

REFERENCE

BOOKS

Mckendrick., E (2009). Contract Law (8th Ed). Basingstoke: Palgrave Macmillan.

Beatson, J, Burrows, A & Cartwright, J. (2010). Anson’s Law of Contract (29th ed). Oxford University Press: New York

Nditi, N (2004). General Principles of Contracts in East Africa. Dar es Salaam: Dar es Salaam University Press

STATUTE

Law of Contract Act [Cap 345 R.E. 2002]

The Bill of Exchange Act [CAP 215 R.E. 2002]

Road Traffic Act, [CAP 168 R.E. 2002]

ELECTRONIC SOURCES

http://books.google.ae/books?id=l423LTgRnJoC&dq=basic+contract+law+for+paralegals&source=gbs_navlinks accessed on 23rd January 2017 at 16:30HRS

http://www.duhaime.org/LegalDictionary/A/Agency.aspx, accessed on 19th January 2017  at 17:30HRS

CASES REFERED

Tweddle v Atkinson [1861] 123 E.R 762

Dunlop Pneumatic Tyre Co., Ltd v Selfridge & Co., Ltd [1915] A.C 847

Beswick v Beswick [1966] 3ALL E.R. 1 (C.A)

Burns & Blane Limited v. United Construction Company Limited [1967] H.C.D No 156

Juma Garage v Co-Operative and Rural Development Bank [Civil Appeal No 58 of 1996]

Tanzania Union of Industrial and Commercial Workers [TUCO] at Mbeya Cement Company Ltd v Mbeya Cement Company Ltd and National Insurances Corporation [Civil Case No. 135 of 2000]

THE SIGNIFICANCE OF FREE CONSENT IN CONTRACT

Introduction.

It’s an elementary and established rule of law in contract that for a contract to be valid and legally enforceable before the court of law, among other things it must be concluded with a free consent. The aforesaid rule is enshrined in the provision of section 10 of the Law of Contract Act . Therefore this provision seems to suggest that a free consent is an essential element of any valid contract without which the contract is said to be vitiated are and more precisely void and as a consequence the parties to contract can not legally enforce it the court of law . 

Consent and Free Consent defined.

Consent, is concurrency of wills or alternatively, Consent can be defined as an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side . The provision of section 13 of Law of Contract Act , is to the effect that, parties to the contract are said to have consented when they actually agree on the same thing and in the same sense. Also the meaning of consent can be inferred from the provision of section 2 (1) (b) of the said law . To consent to something, generally, means to voluntarily agree to it.

Free consent, means that a person was to conclude a contract out of his own will or volition . Free consent has its special meaning in the law of contract. According to the provision of Section 14 of Law of Contract Act, a consent is deemed to be when is not obtained by either coercion, undue influence, fraud,  misrepresentation, or mistake as defined under section 15, 16, 17, 18, 20 of the law of Contract Act  respectively. Contracts  which  are  made with  taints of  the  above  factors  are  voidable  contracts  that is the affected  party  known  as  the  innocent  party  may avoid  it if  he so wishes as per section 19 (1) of the Law of Contract Act . However according  to  the  same  section the  contract is  not  voidable  if  the  innocent party had  the  means  to  discover the  truth by  due  diligence.

The significance of free consent of parties in the contract.

As it observed in the above discussion free consent is very much important element in law of contract, without free consent of contacting party, the performance contract is impossible. Thefore the significance of free consent of parties to contract is as follows:-

First and foremost, Free consent determines the valid and enforceability of an agreement concluded between the parties to contract. This position was affirmed in the case of Mikol  Bottlers  Ltd.  v  M/S  Dhillon  Kool  Drinks , where it was stated inter alia, for  agreement  to  be  valid  should  be  made  by  free  consent  of  the parties  apart  from  other requirements.   

Secondly, free consent protect the parties to contract in the event where they are compelled to enter into a contract under either fraud, coercion, undue influence, mistake or misrepresentation. This is sufficiently explained in the case of Andrew v. Mockford , where the defendants had issued a prospectus containing untrue statements and the plaintiff applied for 50 shares and was allowed the same but subsequently sued the defendants in damages for fraudulent misrepresentation. It was held that the defendants were liable as they were aware of the falsity of the statements. Therefore in the discussed case, it obvious the plaintiff was protected against fraudulent misrepresentation of the other part which removed his free will to contract.

Thirdly, with a free consent parties are autonomous to determine their terms and hence prevent them from making unconscionable bargains which are unfair bargains. In Lloyds Bank Co. Ltd v. Bundy , the plaintiff bank extended a loan to a business owned by the defendant’s son. The defendant guaranteed the loan to the tune of ₤1,000 but the bank required further guarantee. He extended it to ₤6,000. His lawyer informed him that it would be unwise to extend the guarantee further. The defendant owned a house with ₤10,000. An official of the plaintiff bank visited the defendant and procured a further guarantee of up to ₤11,000. The sons business collapsed and the bank sought to enforce the guarantee against the father who pleaded that it was unconscionable. It was held that the guarantee was voidable at the option of the defendant as it was unfair. 

Fourthly, free consent of parties to contract creates the meeting of minds (consensus ad idem) between them. There would only be contractual agreement when each party’s subjective understanding of the agreement matched exactly (“meeting of the minds”) . In Raffles v. Wichelhaus , where the parties agreed to pay for cotton being sent from Bombay on a ship called “Peerless.” However, unknown to the parties, there were two ships called “Peerless” carrying cotton from Bombay, and one contracting party intended the earlier ship, and the other the later ship. The court held that there was no contract because the parties’ minds did not meet. Therefore from the presented case its right to argue that, free consent is important in a contract as it largely determine the meeting of minds of contracting parties.

Fifthly, free consent secure the remedy for an aggrieved party, it was stated in Cundy v. Lindsay and Co. Ltd , where, A fraudulent person, Blenkarn ordered goods from Lindsay, his signature resembled that of a company named Blenkiron and Co. Lindsay and Co. had heard of Blenkinron and Co but had not dealt with them. Blenkarn had quoted an address on the same street as Blenkiron and Co. thinking that they were dealing with Blenkiron and Co. Lindsay and Co. dispatched the goods to the address. It was held that they were entitled to damages as Cundy had no title to the goods like Blenkarn before him as the contract was void.  

Lastly, free consent plays a major role in imposing liabilities for promises between the parties to contract , a typical free consent looks like a binding commitments and a typical promise must normally realize that he is undertaking liabilities which may in the last resort be legally enforced against him.

Generally, since free consent is an essential element of any valid contract as it determines its validity and its enforceability thereof, therefore it’s the duty of contacting parties to ensure free consent is given so as to assume some legal rights and obligations under the contract.

REFERENCE

BOOKS

Aliyah, P.S., (1986). Essay on contract. Clendon Press: Oxford.

Monaham, G., (2001). Essential Contract Law (2nd Ed). Cavendish Publishing (Australia) Pty Limited: London.

Nditi,N.N., (2004). General Principles of Contract Law in East Africa. Dar es salaam University Press Ltd: Dar es salaam.

STATUTE

Law of Contract Act [Cap 345 R.E 2002]

ARTICLES AND JOURNALS

Brian, H.B (2008). Consent in contract. Retrieved from http://www.Law.columbia.edu on 4th May 2017 at 10:00PM.

CASES REFERRED

Mikol  Bottlers  Ltd.  v  M/S  Dhillon  Kool  Drink [1995] AIR

Andrew v. Mockford [1876] 1 QB. 372

Lloyds Bank Co. Ltd v. Bundy [1975] QB 326

Raffles v. Wichelhaus  [1864] 159  E.R.  375,  2  Hurlstone  & Coltman  906  (Ct.  Exc)

THE MAXIM NEMO DAT QUOD NON HABET AND IT'S EXCEPTIONS

The law starts from the policy of property protection expressed in the Latin nemo dat quod non habet. The maxim simply means “no one can give or transfer what he does not have.” It further insists that no one can pass a better title than what he has . The principle is embodied in the provision of section 23 of Law of sales of Goods Act , which is to the effect that where goods are sold by a non-owner and in fact without the original owner permission, the bonafide purchaser acquire no better title than the seller had unless and otherwise the owner is precluded from denying the sellers authority to sell the property. 

It should be noted, that the seller may not be always the owner of the goods, sometimes he may have stolen them. Likewise, he may believe he is the owner when in fact he has been misled by the previous seller, and his buyer gets no better title than he has, then the goods are to be returned to the true owner and the buyer can then recover damages from the seller . 

The above position is affirmed in the case of Rowland v Divall , where the claimant, a car dealer, bought a car from the defendant for £334. He painted the car and put it in his showroom and sold it to a customer for £400. Two months later the car was impounded by the police as it had been stolen. It was then returned to the original owner. It was therefore held that the defendant did not have the right to sell the goods as he did not obtain good title from the thief. Ownership remained with the original owner. The defendant had 2 months use of the car which he did not have to pay for and the claimant was not entitled to any compensation for the work carried out on the car.

As Lord Denning in Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Ltd , stated that ‘in the development of our law, two principles have striven for mastery.  The first is the protection of property: no one can give a better title than he himself possesses. The second is for the protection of commercial transactions: the person who takes in good faith and for value without notice should get better title. The first principle has held sway for a long time, but it has been modified by the common law itself and by statute so to meet the needs of our times.’  

This quote is important since it establishes two important principles. On the one hand, the need to protect the proprietary right of the original owner since he had better title to the good than anyone else. On the other hand the need to protect commercial transactions because the buyer takes the goods in good faith for the value offered to him .  English Law seems to state that the general rule is in line with the protection of the original buyer’s rights, the law has developed several exceptions to this rule which includes but not limited to the followings:-

Estoppel, The exception of estoppel is used when the owner of the goods is refrained from the denying the seller’s authority as his conduct makes it appear to the buyer that the seller has the owner’s consent to sell the goods. Thus, the title of the property of the goods will be transferred to the buyer should he buy the goods. This exception is well enunciated in the case of Eastern Distributers Ltd v Goldring . 

The second exception is the sale by a mercantile agent. This exception is stated in section 27 of the Sale of Goods Act . Any sale by the mercantile agent made in the normal course of business is valid as long as the agent had the consent by the owner of the goods which he has possession of. The sale is valid as though the agent had been expressly given the authority by the owner. But, the buyer must have acted in good faith and no notice expressing that the seller was not authorized was obtained at the time of the contract. The same was explained In the case of Folkes v King .

The next exception to the rule is sale under a voidable title. This exception is provided under section 25 of the sales of Goods Act , goods obtained by the seller was under a voidable contract when the consent of the original owner is caused by elements under section 15 or 16 of Contracts Act . An example to explain this would be when A took the goods from B by coercion and sold it to C who bought it in good faith. The title of the property of the goods will be transferred to C. 

Another exception to the rule is the sale by a seller in possession after sale. The provision that expresses this is section of 27 of the law of Sales of Goods Act . This provision means that should the seller sell the goods that was bought by a previous buyer but is still in the seller’s possession to a second buyer, the second buyer will obtain a good title to the goods he bought from the seller in good faith. The first buyer will lose his title on the goods but he is entitled to sue the seller who would be liable to him. 

Other prominent exception to the aforesaid rule includes Sale by one of  several joint owners who is in possession of goods by permission of the  co-owners; here the buyer in good faith gets good title to the goods. Market overt-Open market, where when goods are sold under an open market recognised by the law, the bonafide purcheser obtains a better title as per Section 24 of the law of sales of Goods Act , And  lastly Sale by unpaid seller who exercises his right to lien, or stoppage in transit to resell the goods as stipulated under section 40-49 of the Law of sales of Goods Act .

Generally, despite the fact that the rule need to protect the proprietary right of the original owner since he had better title to the good than anyone else but on the other hand the need to protect commercial transactions because the buyer takes the goods in good faith for the value offered to him, however the first principle has held sway for a long time, but it has been modified by the common law itself and by statute so as to meet the needs of our own times.

REFERENCE

BOOKS

Rawlings, P., (2007). Commercial Law. University of London Press: London.

Okany M. C., (2001). Nigerian Commercial Law. University Press: Lagos 

STATUTE

The Law of Sales of Goods Act [Cap 214 R.E 2002]

The Law of Contract Act [Cap 345 R.E 2002]

CHARGE SHEET SAMPLE

   

                               IN THE RESIDENT MAGISTRATE’S COURT OF BUNDA                                               

  AT BUNDA

CRIMINAL CASE NO  ..................  OF 2014

    REPUBLIC

VS

TEMESGEN BEKELE MENGISTU

CHARGE SHEET

STATEMENT OF OFFENCE

Unlawful present within the United Republic of Tanzania c/s 31(1)(i) and (2) of the Immigration Act Cap 54 (RE 2002)

                                                  PARTICULARS OF THE OFFENCE

That the said Tasamala Lama Ethiopian by nationality is charged that on 21st Nov 2014 at or about 13:00 hours at Rubana Police barrier within Bunda  District in Mara Region, was found unlawfully enters or is unlawfully present in the United Republic of Tanzania without  in possession of any valid pass or permit issued to him to justify his immigration status.

28rd Nov, 2014
…………………………                                                           …………………………………………………
STATION BUNDA                                                                  PUBLIC PROSECUTOR


Presented for filling this …………………………………………….day of Nov ,2014

                                       PARTICULARS OF THE ACCUSED PERSONS

NAME:                Tasamala Lama
NATIONALITY:   Ethiopian
TRIBE:                 Hadiya
AGE:                   19yrs
RELIGION:          Christian
OCCUPATION:   Peasant
ADDRESS:           P.O.Box Ethiopia

ESSENTIAL ELEMENTS OF A CONTRACT OF SALE

Goods are tangible or movable personal property other than money or things that have value whether tangible or not . Section 2(1) of the law of sales of goods Act  defines the term good to include all personal chattels that are tangible and being capable of being moved, and the provision exclude all emblements (growing crops produced annually), money and things that are permanently affixed or attached to the land such as the land, trees and houses.

The united nation convention on contract for the international sales of goods , defines the term goods to exclude among other things  goods bought for personal, family or household use, things bought by auction, stocks, shares, investment securities, negotiable instruments or money and ships, vessels, hovercraft or aircraft just to mention a few. In economic terms, a good is a material that satisfies human wants and provides utility, for example, to a consumer making a purchase while getting an enough-satisfying product .

The case of Mills v Stokman , draws a distinction of what are goods and what are not goods, and according to this case a quantity of state which had been quarried and then left on some land as waste material for many years was held to be part of the land. Things like goodwill, copyright, trademark, patents, water, gas, electricity are all goods. In the case of Commissioner of Sales Tax v Madhya Pradesh Electricity Board , the Supreme Court observed that electricity can be transmitted, transferred, delivered, stored, possessed, in the same way as any other movable property. If there can be sale and purchase of electric energy like any other movable object, we see no difficulty in holding that electric energy was intended to be covered by the definition of “goods”.

As far as goods are concerned they can be categorized into two major forms that is existing goods which includes all goods that are in possession of the seller and which have been agreed upon by the parties at the time of making a contract of sale where as the future goods are those that are not yet in possession of the seller but such goods will be available after making a contact of sale that is in future date as per section 7(1) of the law of sales of goods Act . 

The existing goods may be either specific goods or ascertained goods that is are goods that have been identified at the time of making a contract of sale, where as future goods can either be unascertained or contingent goods. Unascertained goods are those which have not yet identified at the time of making a contract of sale where as contingent goods are those which their availability depend upon occurrence or non-occurrence of certain event as defined under section 7(2) .

Generally, the term goods can be defined to include all things that are capable of being moved from one place to another, being tangible, and those which can satisfy the human needs and normally people make effort to acquire them.

Contract of sale is first and foremost the contract that is consensual transaction based on an agreement to bay and an agreement to sale . The provision of section 3(1) of the law of sales of goods Act , defines a contract of sale as when the seller agrees to transfer the property in goods that is ownership to the buyer for a consideration called price.

Consideration (price), this is the most essential element of ingredient of any contract of sale. The provision of section 25 of the law of contract Act , place an emphasis that any agreement without a consideration is null and void abi initio. The term consideration was defined in the case of Thomas v Thomas , to mean anything that is of value in the eyes of the law.

Price as an essential element of the contract of sale is provided under section 10 and 11 of the law of sales of good Act , Where the wording of these sections are to the effect the price in a contract for sale of goods may be fixed by the contract or may be determined by the course of dealing between the parties. In the absence of either of these, the buyer must pay a reasonable price, the amount of which will be determined by the circumstances of each particular case.

However, there some authority that, once the price is not fixed by the contract itself it will be a concluding remark that no agreement was reached or contract was concluded as it was held in the following cases:-

May and Butcher v The King , in this case May & Butcher wanted to buy surplus tentage from the Disposals Board. In June of 1921, the Board defined terms of agreement, the Board agrees to sell (and May & Butcher agree to purchase) all old tents and the price and dates on which payment will be made shall be agreed on by the parties as the tents become available. An agreement contained the provision price and date of payment shall be agreed upon from time to time. It was held that an agreement between two parties to enter into an agreement in which some critical part of the contract matter is left undetermined is no contract at all.

Transfer of property in goods, the term ‘property in goods’ means the ownership of the goods. In every contract of sale, there should be an agreement between the buyer and the seller for transfer of ownership . Thus, in a contract of sale there must be an absolute transfer of the ownership. It must be noted that the physical delivery of goods is not essential for transferring the ownership.

Parties to contract of sale, To make a contract of sale there must be at least two parties. These parties must be distinct, that is, a buyer and a seller. These parties should be also competent to make a contact as per section 11(1) and (2) of the law of contract Act . In this context the word ‘buyer’ means any person who buys or agrees to buy the goods and the word ‘seller”’ means any person who sells or agrees to sell the goods as per section 2(1) of the law of sales of goods Act .

The parties to the contract of sale they must be competent to contract, and every person who is of the age of majority, of sound mind and being not disqualified by any law from contracting can enter into a contract of sale as per section 11(1) of law of contract Act . The effect of entering  of a contract of sales with a person who  is incompetent to contract render such contract void as per section 11(2) of the law of contract Act . For example undischarged bankrupt is precluded by the Bankrupt Act , under section 3 to enter into contract.

Subject matter of a contract of sale (goods), there must goods in any contract of sale which are the main subject of such contract, without which the contract cannot be made as there will be nothing to sale. The provision of Section 2(1) of the law of sales of goods Act  defines the term good to include all personal chattels that are tangible and being capable of being moved, and the provision exclude all emblements (growing crops produced annually), money and things that are permanently affixed or attached to the land such as the land, trees and houses. The goods which form the subject of a contract of sale may be either existing ot future goods as it was explained above.

Essential elements of a valid contract, finally all the essential elements of a valid contract must be present. The provision of section 10 of the law of contract Act , enumerate some of these essential element where among other things there must be a lawful consideration, lawful object, consent of the parties and party must have capacity to enter into a contact of sale.

Generally, any contract of sale must have the aforementioned element, and despite all that also any contract of sale must satisfy the essential element of valid contract as set out under section 10 of the law of contract Act so as to create some legal rights and duties thereto.

REFERENCE

BOOKS

Psatiyah, I.S (1982). The sales of goods, (6th Ed). GB publishers: London

Bridge, M (1998). The sales of goods. Oxford University Press: London

STATUTE

The Sales of Goods Act, [Cap 214 R.E 2002]

The Contract Act [Cap 345 R.E 2002]

Bankrupt Act [Cap 25 R.E 2002]

ELECTRONIC SOURCES

http://www.szczepankiewicz.net/microeconomics.pdf Retrieved on Thursday 5th January 2017 at 16:19HRS

THE LIFE OF LAW HAS NEVER BEEN LOGIC

Meaning of the term law

Law is the cement of society and also an essential medium of change. Knowledge of law increases one understands of public affairs. Its study promotes accuracy of expression, facility in argument and skill in interpreting the written word, as well as some understanding of social values . Law as an abstract concept pervades all of the strata of the society, affecting these areas on different perspectives for one goal- development or otherwise of such a society .

Meaning of the term Logic

Logic is that branch of philosophy which reflects upon the nature of thinking. It attempts to answer questions like what is correct reasoning? What distinguishes a good argument from a bad one? What are the methods of detecting fallacies in reasoning, if so what are they . 

Logic is the most fundamental branch of philosophy. It is not a branch of psychology; it does not deal with all types of thinking called reasoning. Logic is prescriptive ought and deals with the formulation of general rules for correct reasoning .

In reasoning we produce reasons as evidence for certain conclusion we wish to establish.  Reasoning is closely connected with making inferences (inferring). The reasons we provide allow us to infer a certain conclusion. In this sense logic is a descriptive attempt to distinguish bad reasoning from good reasoning or what is equivalent to good inferences . Generally, Logic may be defined as a branch of philosophy which attempts to determine when a given sentence or group of sentences permits us to correctly infer some other sentence.

Types of logic

Traditionally, philosophers divide logic into two main branches that is inductive and deductive reasoning and both are generally concerned with the rules of correct reasoning or correct argumentation.

Inductive  reasoning  is  reasoning  from particular  to general,  but  the  term  may  be used  in  a  broader  sense  to  encompass  all kinds  of  reasoning  in  which  the  premises support,  but  do  not compel, the conclusion. Deductive reasoning on the other hand moves from general to particular.  

MAIN BODY 

Relationship that exist between law and logic

There is a great relationship between logic and the law, and this is evidenced in the way codes or pieces of legislation are drafted or drawn show an internal logic of the concepts and categories of the phrases and terms contained as well as internal local consistence of the provisions. The law is concluded in more generalized in order to enable it to deal both with specific and tenurial cases .  

Another instance that shows the relationship between logic and the law is that judgments are written in a manner that suggests a logical consistence and the choices of words and phrases reflect certain categories logically connected .

The facts of a dispute between the parties having been ascertained by the Court, they are subsumed under the rule by a process of logical deduction. Before this is done, it may be necessary to interpret ambiguous words or indeterminate concepts forming part of the rule. It may also happen that a general rule covering the facts is not readily available to the sequence of earlier decisions . 

There are also many cases where the facts found by the court do not fit within the semantic frame of the existing rule, but where the device of analogy is used by the court in applying a related rule or similar precedent embodying a general policy or rationale appropriate for the decision of the case .

Debate on whether the life of law has been logic or experienced

Despite all this there has been a lifelong debate on whether logic plays an important role in law or not. This first was seen in the struggles between Justice Coke and Mc Monerdry in Britain, where Justice Coke, he supported the application of logic in law by starting that the cases are not supposed to be decided by natural reasoning but by artificial reasoning. He supported the application of logic in law that would create certainty and promote sound administration of justice . 

What the chief justice was saying was the fact that through training and practice a lawyer attains ascertains level of thinking and arriving at decisions through the art of reasoning. In dispute is the extent to which logic is applied in legal decisions . 

In the case of Samwel Silanga v R , the court applied logic as, because the evidence showed that the accused found with blood into her clothes, and because the murder involved stubbing of knife, the court drew conclusion from these facts and held that the accused might have killed the deceased.

Athur Guest says that there has been a move against logic in law because: "logical thought processes are rigid and inflexible to the extent of turning judges into stooges of the law other than conscious individuals. This suggests that to use logic would mean to turn judges into automatons which are in fact not reflected by the way judges make decisions . 

Points advanced to justify the life of law has not been Logic

Another opponent to the use of logic is, O.W. Holmes in his book "The Path of the Law" in which he categorically asserted that: The life of the law has not been logic but experience. These seem to put some limitations on the extent to which logic is applicable by lawyers .

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed .

While this statement is perhaps susceptible to more than one interpretation, Holmes can be construed as making two points which are essentially sound and true. First, that the changes and development of legal rules and principles cannot be fully explained and made intelligible in terms of purely logical analysis of legal concepts. Second, that such logical analysis is not a sufficient tool for rationally deciding legal controversies .

Logical deduction doesn't necessarily determine the rules. This is also what Judge Holmes was saying, He's using "syllogism" as an example of a logical structure that could be used in determining the law, but which in his view is overshadowed by theories, policy choices, or prejudices of the time .

The "life" of the law how it is exercised is based on experience, not logic. As a syllogism is a logical structure, all of the items he has listed are experiential and take precedence over the logic. He is contrasting the content (logic) of the law with its application. For example, the law might state that the posted speed limit on a particular stretch of road is 45 miles per hour. However, this road leads to a hospital. So the application of the law from a perspective of experience may take this into account when handing down a verdict for a particular offender who happened to be rushing his child to the emergency room. The syllogism of law states an absolute; experience gives it flexibility .

Legal decisions can often be looked upon as processes of enriching the content of legal rules by making the range of their application more determinate, rather than simply deductive applications of existing rules. Legal theorists often fail to distinguish questions of classification from questions of logical inference, and include a discussion of both under the undifferentiated notion of logic .

The life of law is not just logic but experience, the life of law is renewal based on experiences which adapt law to the new social reality. Indeed, there are always changes in law, caused by changes in society. The history of law is also the history of adapting law to life’s changing needs. The legislative branch bears the primary role in making conscious changes in the law. It has the power to change the legislation that it itself created. It has the power to create new legal tools that can encompass the new social reality and even determine its nature and character . 

CONCLUTION

Generally, the life of the law has not been logic: it has been experience. These lists of experiences have done more than logical structures, the syllogism, to determine the rules by which men should be governed. Therefore it can be rightly said that, the life of the law is not logic, but experience as structured by logic.

REFERENCE

BOOKS

Barak, A., (2008). The Judge in a Democracy. Princeton: Princeton University Press.

Falk, P. J. (2014). Not Logic, but Experience: Drawing on Lessons from the Real World. New York: Yale University Press.

Freeman, M.D.A., (2008). Introduction to Jurisprudence (8th Ed).  London: Sweet & Maxwell.

Mbao, M. L. M. (2010). Constitutionalism and the rule of law in the third millennium. North West University.

Williams, G. L., & Smith, A. T. H. (2006). Glanville Williams: Learning the law (6th Ed). London: Sweet & Maxwell.

ARTICLE AND JOURNALS

Halper, T., (1968) "Logic in Judicial Reasoning" Indiana Law Journal: Vol. 44: Iss. 1, Article 2.

ELECTRONIC SOURCES

http://www.lifeofthelaw.org/2012/09/logic-and-experience/  Retrieved on 22nd January 2017 at 10:00PM

CASE REFERED

Samwel Silanga v R [1993] TLR 149

CUSTOMARY CONTRACTS AND THEIR RECOGNITION IN TANZANIA

INTRODUCTION

MEANING OF CUSTOMARY LAW AND CUSTOMARY CONTRACT

Customary law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws. They are also termed consuetudinary law .

The provision of section 2 (1) (h) of the Law of contract Act , defines the term contract to mean all agreements that are capable of being enforced by the law.

Customary laws in Tanzania are applicable by virtue of section 11(1) of the Judicature and Application of Laws Act , which is to the effect that customary law shall be applicable to, and courts shall exercise jurisdiction in accordance therewith in, matters of a civil nature.

In the light of above definitions, customary contracts are those contracts which are regulated or governed by customary law .

The applicability of customary law is also affirmed in several court decisions which have recognized the validity and legitimacy of customary law. For example, in the case of Maagwi Kimito V. Gibeno Werema , where the Court of Appeal of Tanzania held that, “Customary laws of this country now have the same status as any other law subjects only to the constitution and other statutory law that may provide to the contrary”.

MAIN BOBY

HISTORICAL BACKGROUND OF CUSTOMARY CONTRACTS IN AFRICA COMMUNITIES

The development of customary contracts in Africa can be traced as far back as during the period of feudalism where surplus started to be produced a thing that encouraged exchange at larger extent. Such changes were in terms of barter or sale or another type of arrangement which were legally binding according to customs, usage or rules of a given community or tribe .

CUSTOMARY CONTRACTS AND THEIR RECOGNITION IN TANZANIA

The Tanganyika order in council of 1920 required the governor when making Ordinances, to respect existing native laws and customs provided they were not opposed to justice or morality .

Also every court was called upon, in all cases to which natives were parties to be guided by native law so long as it was applicable and was not repugnant to justice and morality or inconsistent with an Order-in-Council or Ordinance or any Regulation or Rule made under any Order-in Council or Ordinance .

Moreover, the courts were required to decide cases to which natives were parties, according to substantial justice without undue regard to technicalities of procedure and without undue delay .

Basing on the Order-in-Council, 1920, one may argue that customary contracts were recognized and could be enforced in the courts provided they did not go against the provisions of the existing law and were not repugnant to justice or morality .

In 1963 under section 14(1) of the Magistrates' Courts Act , primary courts were given general civil jurisdiction over causes of action governed by customary or Islamic law, and certain other matters in respect of which jurisdiction was specifically conferred by statute.

Therefore relevant customary law must be applied if it is applicable and is not repugnant to justice or morality or inconsistent with any written law as explained also in different decided cases.

In Mtatiro Mwita V. Mwita Marianya , in this case the plaintiff received one bullock from defendant in exchange for some finger millet. The bullock died two months later of unknown causes. Both parties belong to the Kuria tribe, and this type of contract is well known in tribal custom. The custom is that if an animal so exchange for millet dies within one year, the meat and skin may be returned to the other party who is then obliged to replace the animal. Plaintiff followed this procedure and then brought this suit for another bullock. The lower courts refused to follow the custom on the ground that the dispute involved contractual rights and therefore the primary court had no jurisdiction to hear it.  On a second appeal the learned Chief Justice allowed the appeal and found no reason why primary courts should not be able to hear cases involving agreements well known to tribal customs. Therefore on appeal it was held as follows;

“…If persons of the same tribe enter into an agreement well known to tribal custom, under which the terms are prescribed, these persons must, in the absence of evidence to the contrary, be understood to be contracting in accordance with these terms. Also Relevant customary law must be applied if it is applicable and is not repugnant to justice or morality or inconsistent with any written law...”

There is authority for the proposition that the principle of privity of contract shouldn’t be applied in customary contract cases . 

The above position is affirmed in the case of Ephraim Obongo v. Naftael Okeyo , whereby the defendant, a lorry owner, used to collect cassava from plaintiff for selling. On one occasion, his lorry driver and turn boy went to plaintiff to collect some bags of cassava. Plaintiff refused to deliver the goods, demanding that they first produce some empty cassava bags which they had evidently taken another day, or some money.

They returned to defendant’s wife, who gave them 24 bags and T.shs. 190/-, and sent a not promising that everything would be taken care of when her husband returned from a journey. Plaintiff received no more money, and sued in Primary Court for the value of the cassava he had given them, and for some other empty bags not returned, less the money and bags received. The Primary Court held that since the transaction leading to the disputes was between plaintiff and the defendant’s wife the proper party to the suit was the defendant’s wife and not the defendant. On that ground he dismissed the suit. The case went on appeal to the District court and then to the High Court. Seaton J observed that the case involved an issue of privity of contract, a contract rather subtle and technical point which, perhaps Primary Court couldn’t deal with. He said.

“…In suits between Africans living within a local community and doing business amongst themselves on a basis of trust, I consider it would not be in the interests of justice to import technical notions of privity of contract and other such notions, unless clearly required by the law to do so…”

In Joseph Constantive v. Losilale Ndaskoi , in this case the plaintiff agreed to build a house for defendant and, in return, defendant was to give plaintiff a piece of land. Both are Waarusha. Plaintiff entered the land and carried out a number of improvements. He failed to build the house for the defendant. Defendant forcibly ejected plaintiff from the land. Plaintiff, in an action brought initially in the High Court, claimed compensation for unexhausted improvements, including permanent trees and some houses and produce, under Arusha law. In earlier proceedings, defendant had claimed title to the land on the basis of Arusha Law.

 It was held that (1) The dispute is governed by Arusha law, because (i) plaintiff based his claim upon it and not upon the Law of Contract Ordinance; (ii) both parties had accepted that the agreement was governed by customary law; and (iii) defendant’s claim for title of the land had been governed by customary law, and it would now be illogical to decide the question of unexhausted improvements on a different basis. (2) Since the agreement was governed by customary law, the Law of Contract Ordinance was excluded by section 1 (3) of that Ordinance, as amended in the Magistrates Courts Act 1963, Sixth Schedule. (3) By section 57(1) of the Magistrates Courts Act, no proceedings relating to immovable property under customary law could be instituted in any court other than a Primary Court without the leave of the High Court. 

CONCLUSION

Generally, the customary law contracts are well applicable in Tanzania in a condition that such contracts are not inconsistent with the constitution and other written law and this has been well exemplified by different court decisions and provision of some statutes.

REFERENCE

BOOKS

Nditi, N (2004). General Principles of Contracts in East Africa. Dar es Salaam: Dar es Salaam University Press.

STATUTE

Judicature and Application of Laws Act [Cap 358 RE 2002]

Magistrates’ Court Act [Cap 11 RE. 2002]

Tanganyika Order- in-council of 1920

DEFENCE OF PROVOCATION

Provocation refers to the action in heat of the moment or action that is the product of desperation or intolerable circumstances . The provision of section of the penal code provides for the defense of provocation as per section 202 of the law .

The term "provocation" means any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered .

The case of Katemi Ndaki v R , the appellant, was charged with and convicted of murder contrary to section 196 of the penal code and sentenced to death. Apart from the evidence of PW 1 who asserted to have identified the appellant at the scene of crime there was a repudiated confession of the appellant saying that he killed the deceased in the heat of passion caused by sudden provocation by the accused. The trial court did not address itself on the issue of provocation raised in the confession. It was held that the omission to address the issue of provocation raises doubt as to whether an ordinary person of the community to which the appellant lives would not have been provoked by deceased’s outlandish behavior. The doubt is resolved in the favor of the appellant.

Before considering the scenario at hand it ideal first to consider the circumstances where the defense of provocation can be raised and stand, and such circumstances includes the followings:-

The alleged provocative words or conduct must be as such would cause in a reasonable man, a sudden and temporary loss of self-controls the result which he killed the deceased. For determination of this the court will normally invoke the reasonable man test, and this is affirmed in different court decisions. In the case of Katemi Ndak v R , it was held that the test for provocation is the ordinary person of the community of the accused. The said test is also reflected follow in the case of Yovan versus Uganda , wherein, among other things, the Eastern Africa Court of Appeal, held that, provocation must be judged by the standard of an ordinary person of the community to which the accused belongs. The same objective test was applied by the Court in the case of Damian Ferdinand Kiula and Charles versus Republic , In that case the Court held that, for the defense of provocation to stick, it must pass the objective test of whether an ordinary man in the community to which the accused belongs would have been provoked in the circumstances.

For a defense of provocation to stand also the accused person must establish among other things that, he acted out of heat of passion which is product of desperation or intolerable circumstances, which leads to loss of self-control and eventually there was no room for an accused person to cool down his temper . This position was affirmed in the case of Sungura s/o Ngolilo , as the court held that the question of provocation depends upon the question as to whether the act was done in the heat of passion caused by sudden provocation (as defined in section 202 of the Penal Code) and before there was time for the passion to cool.

There some authority also to the effect that for a defense of provocation to avail the appellant, must establish two factors. First, that a relationship between the accused and the deceased still existed, and secondly, he must admit to killing the deceased, this was affirmed in the case of Silva Makanyanga v R .

In case of adultery, the husband or wife must have caught the other in actual act of adultery that is Inflagrante Delicto so as for the defense to stand. This position is also affirmed in the case of Nyadundo v R , where the accused found the deceased in the act of adultery and he therefore inflicted a severe beating on the deceased which caused her death the same day.

Having considered the circumstances where the defense of provocation could be available, now let’s consider the scenario at hand in the light of the aforementioned circumstances, and the matter will be dealt by raising the following issues:-

Whether or not the accused act of killing his wife was the result of heat of passion and it amount to legal provocation, before judging this issue we must direct ourselves on the facts of the case especially on fateful day when the husband who is a watchman returning home at morning and found a man getting out of his house and on entering inside he found his wife preparing breakfast and eventually attacked her and caused her death. It’s upon our satisfaction that the accused attacked his wife and eventually caused her death because he was suspicious that his wife has committed adultery with the man he found getting out his house when he was coming home at morning.

In responding to the raised issue, let’s now consider some case laws that are much similar to the case at hand. Sungura s/o Ngolilo , The question of provocation depends upon the question as to whether the act was done in the heat of passion caused by sudden provocation (as defined in section 202 of the Penal Code) and before there was time for the passion to cool. 

In Nyadundo v R  , The appellant was convicted of manslaughter and sentenced to 9 years imprisonment. The appellant was the husband of the deceases and had been aware for sometime of the deceased’s adultery with one Dominico s/o Rubenge. On 25the February, 1970 the appellant found the deceased and Dominico in an act of adultery. He inflicted a severe beating on the deceased which caused her death the same day. The trial judge held that appellant’s prior knowledge of the deceased’s adultery disabled him form pleading provocation.  

This proposition has been put more succinctly by Lutta J.A. when  he  said;  “If the  killing  was  done  when  the  husband  found  his  wife  with  her  paramour  in  the act  of  adultery,  the  husband  would  not  be  precluded  from  setting  up  provocation as  a  defense,  not  with-standing  his  prior  knowledge  of  adultery  between  them.”  

In Yolamu Arua  v R , it  was  held;  “Suspicion  is  not  knowledge,  and  to  find  his  wife  ….in  an  act  of adultery  might  well,  not  withstanding  prior  suspicion,  engender  ungovernable rage  and  constitute  grave  and  sudden  provocation  sufficient  to  reduce  the  killing to  manslaughter.

In R v Lawrence s/o Makabayi , It was is urged on behalf of the accused that he acted under provocation in this case and for that reason the offence should be reduced to manslaughter. It is accepted that finding one’s wife in the act of adultery is grave provocation which can reduce a killing done in the heat of the moment from murder to manslaughter. Similarly it has been held that a sudden confession of adultery itself might be held to be provocation of a serious nature enough to reduce a killing to manslaughter. 

In Said Hemed v Republic , the court held that “where a killing is done in a heat of passion, the defense of provocation applies and the killing is not murder, but manslaughter”. 

Having considered, different court decision, In the current case or scenario, the accused simply suspected the deceased and he did not found the deceased in the actual act of adultery that is Inflagrante Delicto, and therefore the accused didn’t act in the heat of passion to reduce the charges from murder to manslaughter, and therefore his defense cannot stand and he is actually guilty of murder. His suspicious against his wife was not enough to prove that there was a sexual relationship between the two.

Whether or not the environment he found when returning home in the morning could provoke a person to kill, In applying the reasonable man test in the present scenario, its ideal first to consider some court decisions. In the case of Matemi Ndaki , it was held that the test for provocation is the ordinary person of the community of the accused. The said test is also reflected follow in the case of Yovan versus Uganda , wherein, among other things, the Eastern Africa Court of Appeal, held that, provocation must be judged by the standard of an ordinary person of the community to which the accused belongs. The same objective test was applied by the Court in the case of Damian Ferdinand Kiula and Charles versus Republic , In that case the Court held that, for the defense of provocation to stick, it must pass the objective test of whether an ordinary man in the community to which the accused belongs would have been provoked in the circumstances.

In applying the reasonable man test in the scenario at hand, its upon our satisfaction that any reasonable person would have not acted that way, and this simply because he didn’t found his wife in the actual act of adultery, a reasonable person would have thought or consider other possibilities apart from suspicion of adultery.

Generally, the accused defense that he killed his wife out of heat of passion could not stand in the circumstances shown in the presented scenario; it could only suffice a defense only if he found the deceased in the actual act of committing adultery that normally is enough for a husband to lose control and not otherwise as its well established in afore discussed case laws.

REFERENCE

BOOKS

Card, R., (2008). Criminal Law (18th Ed). Oxford University Press: London.

Williams, G (1978). Text book of criminal law (2nd Ed). Universal law publishing co PVT LTD: India

STATUTE

Penal Code [Cap 16 R.E 2002]

LIST OF CASES REFERED 

Katemi Ndaki v R [1992] TLR 297 CA

Yovan versus Uganda [1970] E.A 405

Damian Ferdinand Kiula and Charles v Republic [1992] TLR 16.

Silva Makanyanga v R [CRIMINAL APPEAL NO. 36 OF 2002]

Nyadundo v R [1971] H.C.D.  n. 280   

Yolamu Arua  v R  [1960] E.A. n. 146

R v Lawrence s/o Makabayi [1969] H.C.D.  n 34

Said Hemed v R [1987] T.L.R 117

TRANSFERRED MALICE 2

ATTEMPT CASES 3

ISSUES OF LAW IN THE CASE OF R V MWAMWINDI [1972] HCD 219

DISTINCTION BETWEEN THE DEFENSE OF PROVOCATION AND INSANITY 8

REFERENCE 11

TRANSFERRED MALICE

The doctrine of transferred intent or malice is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object . To illustrate, the law allows prosecution where the defendant intends to burn one house but actually burns another instead. The concept of transferred intent applies to homicide, battery, and Arson .

In other words, transferred malice refers to the cases where the offender intends to harm one victim but instead harm another. In such cases the offender is held, responsible for his or her act though his or her intended victims was not injured, but transferring the malice he had towards the intended victim to the actual victim who suffer harm. This transfer is not made if the intent was not to accomplish similar harm, for example intent to assault does not transfer to the breaking of a window by throwing a rock intended to injure the victim .

The concept of transferred malice is enshrined under section 200 of the Penal code . Under this section it doesn’t matter who is the person killed provides an intention to kill is present. In other words we have what is called transferred malice in this section.

As  firstly  held  in  the  case  of  R  v  Latmer , a defendant will still be liable if he or she  has the  necessary  mens  rea  to  commit  a  particular crime  and  he or she  actually  executes  an actus reus  on  a  different  victim,  by  mistake  or  otherwise, other  than  the  one intentionally  targeted.  However,  if  a  defendant  has  a requisite  mens  rea  for  a  particular offence  but  by  mistake  he  executes  a different  actus reus,  intent or malice cannot be transferred. This was rightly espoused in the case of R v Pembliton . 

The concept of transferred malice can also be seen in the following hypothetical examples or scenarios:-

Juma married Asha and they have lived together for a number of years enjoying their marriage life, but on one occasion Juma and Asha quarried as Juma was accusing his wife for having an affair with the house boy. One day Juma made up his mind and decided to kill the house boy by poisoning him, to that effect, Juma poisoned the food in the hot pot that was to be eaten by the house boy. Unfortunately, his wife came and ate such food and consequently died on spot. In this scenario Juma’s malice to kill the house boy will be transferred to the killing of his wife, despite the fact that his wife was not a target.

In another hypothetical example, Felister had an intention to kill Geofrey, having formed a requisite mens rea to kill his friend by shooting him with her two barreled gun, but by mistake she entered in her friend house and kidnap his friend and later release him. In this scenario   therefore, though Felister has  a  requisite  mens  rea  for  a  particular offence  but  by  mistake  he  executes  a  different  actus reus,  intent or malice  cannot  be transferred.

ATTEMPT CASES

Attempts and conspiracies are known as ‘inchoate’ crimes. This is because the full actus reus of the principal offence has not been reached. However, as far as an attempt is concerned, the ‘full’ actus reus of the ‘attempt’ must be there .

Attempt  was  originally  an  offence  under  the  common  law  of  England.  Attempt  crimes are  crimes  where  the  defendant's actions  have  the  form  of  the  actual  nature  of  the  crime itself, that is the  actions  must  go  beyond  mere  preparation.  The  essence  of  the  crime  of  attempt is  that  the  defendant  has  failed  to  commit  the  actus reus  of  the  full  offence  but  has  the direct  and specific  intent to  commit  that  full  offence .  

For an  attempt  to  attract  criminal liability,  it must  be more  than  just  a  preparatory  act.  Equally,  the  defendant  must embark  on  the full  crime  but fail  to  reach  the full  circle of  the  actual  crime .

According  to  the  proximity  test  as  per  Lord  Diplock  in  the  case  of  DPP  v  Stone house ,  the  defendant  must  have  crossed  the  ordinary  preparation  and or  reached  a  proximate point  of  no  return.  That  is  to  say,  the  defendant  must  have  reached  that  part  of  the series  of  acts,  which if  not  interrupted,  frustrated,  or  abandoned,  would  inevitably  result in  the  commission  of  the  intended offence.

Under the provision of section 380(1) and (2) and (3) of the penal code  an attempt to commit an offence is by itself an offence, however for a crime of an attempt to be punishable the accused must have done some further acts than mere preparation. Several offences falls under this category including attempted rape, murder, fraud and so forth.

To constitute the offence of attempt, the following ingredients must be present that is intention to commit an offence, beginning to put an intention into execution by means adopted by its fulfillment, manifestation of intention by overt acts, but finally the person fails to fulfill the desired intention .

The problem with those crimes rests primarily on the question of actus reus and not mens rea because the actus reus is normally difficult to determine as sometimes it’s hard to draw the line between those acts that are merely preparatory and those went and executing a plan, will always go through a series of steps to arrive at the intended conclusion . Also another reason that make actus reus to be difficult to be determined is the fact that some aspects of the execution of the act will be too remote or removed from full offence, and this is evidenced in the following decided cases:- 

R v Rukondo s/o  Kamano ,  Accused  was  charged  with  attempted  murder. There  was evidence  that  accused  and  several  others  shot  a  shower  of  arrows  at  complainant and  his  companions  in  an  attempt  to  recover  meat  which  they  believed  complainant  and  his  companions  had  taken  from  them.  They shot from about 40 paces away.  One  of  the  arrows  hit  complainant  in  the  buttock,  causing  a  wound  tow inches  deep.

It was held that (1)  It  was  not  satisfactorily proved  that  the  arrow  which  hit  complainant  was  shot  by  accused. However, accused  and  his  company  were  all  acting  in  concert  and  with  common intention,  and  accused  is  therefore  responsible  for  the  injury  even  if  he  did  not himself  shoot  the  arrow.  (2) In  view  of  the  distance  from  which  the  arrows  were shot  and  the  other  circumstances  of  the  case,  accused  was  guilty  of  the  offence of  an  act  intended  to  cause  grievous rather  than  attempted murder.  The accused was then convicted of the former offence.

The case of R v Haruna Ibrahim , In this case the accused was convicted of attempted rape (c/s 132).  The  evidence  was  that  he  had  dragged  the complainant  to  a  ditch,  placed  his  hand  over  the  mouth  and  pulled  down her  underclothes  while  lying  on  her  when  he  was  observed  by  a  passerby and  fled. There was no evidence that at the time he fled, (he was) undressed.  The acts  of the accused  did  not  constitute  attempted  rape, since  he  had  not  yet  undressed.  Rather, the acts constituted mere preparation for that crime. The  acts  however  did  constitute  the  crime  of  indecent  assault  (s. 135  (1)  P.  C.)  A  conviction  for  indecent  assault  was  substituted  under section  185  of  Criminal  Procedure  Code.

Another case which can throw more light is the case of Mwandikwa Mutisya v R , where in this case the appellant was convicted by resident magistrate for attempted theft of articles which were locked in the car. The facts found by trial court were that the appellant tried to unlock the door of the car and for this purpose was after an entry had been forced, to steal articles in the car. The appellant was caught before he was able to open the door of the car. The substantial point taken on appeal was whether the attempt to open the car was in circumstances immediately connected with his attempt to steal since the offence occurred at night, the appellant might not have known exactly what was in the car or if he did, he might not have intended to steal all the articles in the car. It was held that, it was an act which was immediately and not remotely connected with the intended theft and it was an act which went far beyond preparation.

ISSUES OF LAW IN THE CASE OF R V MWAMWINDI [1972] HCD 219

Brief facts of the case

The information filed against the accused, SAUDI ABDALLAH MWAMWINDI, was that he murdered WILBERT KLERRUU on a Christmas day, the 25th December, 1971, in Mkungugu Ujamaa village in Ismani Division in Iringa District of Iringa Region. The deceased was at the time of this death the Regional Commissioner of Iringa Region and was residing at Iringa Township. The accused was at the time of the incident, was a member of the Mkungugu Ujamaa.

During the trial the accused raised some defenses and then contended that if it was the accused that killed the deceased he was insane when he did it and therefore could not be criminally liable under Section 13 of the Penal Code, however the accused had two major mental breakdowns in 1958 called CATATONIC SCHIZOPHRENLA. This mental disease has two forms, catatonic excitement which is characterized by violence, aggressiveness, restlessness, delusions and hallucinations.. 

The defendant also relied on the defense of provocation following some provocative words uttered by the regional commissioner, and such words includes, NI MAHALI UNAPOZIKIA MIRIJA WENZIO MBWA WEE’ (It is the place you bury your fellow exploiters, you dog), ‘UWONGO SHENZI’ (you are lying you uncivilized men) and FUNGA MDOMO WAKO’ (Shut up your mouth.). At this utterance the accused was stung beyond endurance and lost his temper completely. 

He went straight to his house which was about  170 feet away, fetched his double-barrel gun (Exhibit P.3), loaded the two barrels on his way out and when he saw the deceased he leveled the gun at him and pulled the two triggers at once with his middle and 3rd fingers (his index finger was deformed). The shots fired in quick succession and the deceased fell down and died on the sp about 8 feet from the accuser’s house .

Three important issue of law found in this case

Firstly, is the issue of insanity as provided under section 13 of the Penal Code provides that “a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing or of knowing that he ought not to do the act or make the omission.” But that same section made it clear that a person can still be criminally liable for his act although his mind is affected by disease if such disease does not in fact produce upon his mind one or other of the effects specified in the section.

That the insanity must relate to the act complained of. It was not enough to show that the accused and a history of mental disease. It must be shown that that mental disease affected his act in the way specified in the section.

In determining this issue the court had to take into consideration, several factors such as, The accused’s family history, His own personal history, The circumstances surrounding the act itself and opinions of medical experts. 

By paying a due regard to those factor, the court satisfied itself that, the accused was of sound mind when he killed the deceased, though the accused suffered a recognized mental disease CATATONIC SCHIZOPHRENLA.

The second issue of law in this case is the issue of provocation as provided under section 202 of the penal code, as the accused believed that the state of the accused from the time he was abused, went to his house, collected his gun and shot the deceased was such that he acted in anger and by inference there was no time for his temper to cool. The court disregarded this defense of provocation as the court believed that the state of the accused from the time he was abused, went to his house, collected his gun and shot the deceased was not out of provocation as the accused had a time for his temper to cool.

Lastly, there was the issue of ujamaa and self-relance introduced by the government and its repercussion it has in most society especially in Mkungugu Ujamaa village in Ismani Division  where the incidents took place. 

DISTINCTION BETWEEN THE DEFENSE OF PROVOCATION AND INSANITY

Insanity, this defense is found on the premise that the accused person failed to form the requisite mens rea at the time of committing the offence due to the disease of mind which affecting  his or her understanding. Despite the law under section 12 , presume that a person is actual awareness of is act or omission unless the evidence proves otherwise. When the presumption rebutted the defense of insanity can operate as per section 13 of the penal code . 

For successfully raising the defense one must establish that he has been affected by disease of mind at the time of committing an act or making the omission and such disease made him fail to know what he was doing and he should have no control of the act or omission due to the disease of mind . The famous and celebrated case of R v M”naghten , which establish the rules enshrined in the section 13 of the penal code.

In case of Nyingo Suwatu v R , the appellant killed the inspector of police under delusions that he was plotting his death. He then surrendered to police and stated that “I have come here to be killed because they wanted my head. At the trial a psychiatrist gave evidence that the accused would know that what he was doing but not that it was wrong. The trial judge accepted that the accused was at the material time insane in medical sense; however accused statement to the police showed that he knew what he was done was wrong and therefore convicted him with murder.

Provocation refers to the action in heat of the moment or action that is the product of desperation or intolerable circumstances . The provision of section of the penal code provides for the defense of provocation s per section 202 of the law .

The case of Katemi Ndaki v R , the appellant, was charged with and convicted of murder contrary to section 196 of the penal code and sentenced to death. Apart from the evidence of PW 1 who asserted to have identified the appellant at the scene of crime there was a repudiated confession of the appellant saying that he killed the deceased in the heat of passion caused by sudden provocation by the accused. The trial court did not address itself on the issue of provocation raised in the confession. It was held that the omission to address the issue of provocation raises doubt as to whether an ordinary person of the community to which the appellant lives would not have been provoked by deceased’s outlandish behavior. The doubt is resolved in the favor of the appellant.

Basing on the above discussion, the two defenses that are the defense of insanity and defense of provocation can be distinguished as follows:-

In order for defense of insanity to stand the accused person must establish that he has been affected by disease of mind at the time of committing an act or making the omission and such disease made him fail to know what he was doing and he should have no control of the act or omission due to the disease of mind, WHILE, for a defense of provocation to stand the accused person must establish that, he acted out of heat of passion which is product of desperation or intolerable circumstances, which leads to loss of self-control and eventually there was no room for an accused person to cool down his temper .

Once the defense of insanity is raised normally some peculiar steps are taken by the court proving the insanity of the accused person and such steps are provided under section 216 of the criminal procedure Act , Where among other things the court may inquire into the fact of the unsoundness of mind of an accused person the court may order the accused to be detained in mental hospital for medical examination, and such medical report shall be tendered by medical officer within forty-two days of such detention or submission , WHILE these peculiar steps are not applied once the defense of provocation is raised.

Moreover, once defense of insanity is successfully raised it may be a good ground to acquit the accused person from the charges, WHILE once the defense of provocation is successful raised it may reduce the charges of an accused person from murder to manslaughter however It is not every provocation that will reduce murder to manslaughter. To have that effect, the provocation must be such as temporarily to deprive the person provoked of the power of self-control, as the result of which he commits the act which causes death .  

REFERENCE

BOOKS

Card, R., (2008). Criminal Law (18th Ed). Oxford University Press: London.

Chandrasekharan, K.N (2011). General Principle of Criminal Law (2nd Ed). Eastern Book Company Publisher: India

Williams, G (1978). Text book of criminal law (2nd Ed). Universal law publishing Co PVT LTD: India 

STATUTE

Penal Code [Cap 16 R.E 2002]

Criminal Procedure Act [Cap 20 R.E 2002]