ASHERRY MAGALLA THE DOCTRINE OF PRECEDENT IN DIGITAL ENVIRONMENT, LAW

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When you are looking at the title of this work someone may notice that, this work is not mainly based on legal circumstances. But I believe that no lawyer who is a writer writes something of no legal significance. This work mainly looks on the power and the stand of judges in making laws in Tanzania mainland particularly on what is the history behind the judges in Tanzania to make laws and the motive behind them making such laws. Further it looks on the problem that is the lacunae in the applicability of the doctrine of precedents in Tanzania in relation to the development of the science and technology in this present digital era. The issue is where does this lacuna come from? As the title stated, stand and power of the Judges in law making in Tanzania can be looked in a narrow way but in wider sense the title also includes the power of Court because judges cannot make judgment and laws in their home or in street but only in the Courts.

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i The Power of Judges in Law Making In Tanzania and Its Effects on the Growth of Law in Digital Environment By Asherry Magalla  Emmanuel George Mbuga   LL.B Degree Holder at the University of Iringa Formerly known as Tumaini University Iringa University College 2009-2012 Masters Holder in Information Communication and Technology Law at the University of Iringa 2012-2013. Articles and Legal Papers Author at academicians website www.academia.edu and http://www.researchgate.net http://www.researchgate.net/ Consultant on legal issues of ICT. Contact details email magallajrgmail.com  LL.B Degree Holder at the University of Iringa Formerly known as Tumaini University Iringa University College 2014-2015

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ii Copyright © 2015 Asherry Magalla. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means electronic or mechanical including photocopying recording or any information storage and retrieval system without permission in writing from the publisher. Details on how to seek permission further information about the Publisher‟s permissions and other arrangements can be obtained through his email magallajrgmail.com This paper and the individual contributions contained in it are protected under copyright by the Publisher other than as may be noted herein.

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iii Abstract When you are looking at the title of this work someone may notice that this work is not mainly based on legal circumstances. But I believe that no lawyer who is a writer writes something of no legal significance. This work mainly looks on the power and the stand of judges in making laws in Tanzania mainland particularly on what is the history behind the judges in Tanzania to make laws and the motive behind them making such laws. Further it looks on the problem that is the lacunae in the applicability of the doctrine of precedents in Tanzania in relation to the development of the science and technology in this present digital era. The issue is where does this lacuna come from As the title stated stand and power of the Judges in law making in Tanzania can be looked in a narrow way but in wider sense the title also includes the power of Court because judges cannot make judgment and laws in their home or in street but only in the Courts.

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iv One author Richard H. Bruce 1 provided that the judges have stand an power to decide different cases and dispute brought with consideration a legal procedure and rules to them in this they make different decision which form part of laws and thus they are described to as law makers. United Republic of Tanzania as a follower of common law system as established by its laws follows the doctrine precedent .The doctrine of precedents tend to make the subordinate to follow the decisions of the higher courts. The essence of this is to avoid giving the parties and the general public a false impression that results of cases in courts of law perhaps depend more on the personalities of the judges than on the laws of the land. 2 Another author called Spencer JR Jackson provided that the doctrine is there to bind the lower courts by the decisions of courts of records it is there to give directives thus in order for the said issue to be followed 1 Richard H. Bruce Success In law2 nd edition1988John MurrayPublishers Ltd 50 Albemarle Street London page no 9 2 Ally linus and Eleven Others v. T.H.A and Another 1998 TLR 5.

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v there must be communication 3 of the two and also other users of the Judicial organ like the people with conflict and even lawyers and advocates thus the doctrine goes hand in hand with accessibility and communication of the decisions of the Courts of records and to other lower courts and different personnel. In United Republic of Tanzania the said accessibility and communication is adhered by which the some of the cases from the courts of record are kept together in different publications and books like the Tanzania Law Report and the High Court Digest also they are kept in the East Africa Law Reports. This report is done in some sometimes after the case has been decided but the problem is that the said report does not place all cases decision. The said problem affects the determination of justice in to a greater extent since there can rise different problems like the conflicting decisions and also the disregarding of the doctrine due to the unaware of the said decision to the magistrates or any umpire side in deciding a case on table not only the 3 Spencer J.R Jackson‟s Machinery of Justice Cambridge Cambridge University Press 1989 page 13.

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vi deciding umpire but also to their legal personnel as the lawyers and the advocates due the unaware of the said decisions and thus they mislead the Courts of law in deciding a matter on merit and also breach their duty as officer of the court in helping it to reach in justice final. In reflection to the digital environment is that the said problem occurs because the essential element of accessibility is not well looked by the judicial but to the advance of science and technology the said accessibility can be in a greater extent to the fact that an individual from different jurisdiction can access the said binding decision easily and use it for the purpose of precedent. So the main issue here it is not the insufficient of the doctrine of precedent particularly on its normal use but it is mainly on the applicability of the doctrine in relation to the development of science and technology in Tanzania. The question here is how the development of science and technology assists the applicability availability and accessibility of these cases in solving various disputes arises before the court of law particularly when a judge or a lawyer or any other

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vii person with such knowledge wants to apply the doctrine of precedent Can this inaccessibility of information cases undermine the applicability of the doctrine of precedent What is the role played by the technology in the development of the doctrine of precedent It is from this paper which consists of not more than four 4 parts whereby the above questions are going to be answered.

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viii Table of Contents Copyright © 2015 Asherry Magalla. All rights reserved. .. ii Abstract .................................................................................. iii Part I ........................................................................................ 1 The Highlights of the Doctrine of Precedent in Tanzania1 1.2 Background of the Problem ...................................... 2 1.3 The Concepts of Doctrine of Precedent and Development of Science ................................................. 6 1.4 Conclusion .................................................................. 16 Part II ..................................................................................... 18 The Survey of the Doctrine: Application Historical Background and Significant of the Doctrine. ................ 18 2.1 Introductory Remarks ................................................ 18 2.2 What is the Doctrine of Precedent ....................... 18 2.3 The History of the doctrine ....................................... 20 2.3.1. The History of the Doctrine in Ancient Europe. . 20 2.3.2. The History of the doctrine in Continental America ............................................................................ 23 2.3.3. The History of doctrine in Continental Asia ....... 24

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ix 2.3.4. The History and Application of the Doctrine in URT ..................................................................................... 26 2.4. The significant or importance of the doctrine ..... 31 2.5 Conclusion .................................................................. 37 Part III .................................................................................... 38 THE ASSESMENT OF THE DOCTRINE EVOLUTION OF SCIENCE AND TECHNOLOGY LESSONS FROM DIFFERENT STATE ..................................................................................... 38 3.1 Introductory Remarks ................................................ 39 3.2 The General Challenges and Problem Facing the Application of the Doctrine. .......................................... 40 3.3 The Problem of Conflicting Decisions. .................... 44 3:3:1: Factors Leading To Conflicting Decision. .......... 45 3.3.2 Some Examples of the Addressed Conflict in Tanzania. ........................................................................... 51 3.4. The Evolution of Science and Technology in This Digital World in Connection of the Doctrine. .............. 54 3.5. Lesson from Other States and Nations. ................. 55 3.5.1. Lesson from the U.S.A............................................ 55 3.5.2. Lesson from U.K. ..................................................... 56 3.5.3 Lessons from Uganda and Kenya. ....................... 58

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x 3.6. The Development Viewed in Tanzania On E- Government. .................................................................... 59 3.7. Conclusion................................................................. 61 Part IV.................................................................................... 62 Conclusion and Recommendations ............................ 62 4.1. Conclusion................................................................. 62 4.2 Recommendations to the Judiciary ...................... 62 4.3 Recommendations to the Law Makers Legislature ...................................................................... 63 4.4 Recommendations to Academicians. .................. 67 BIBLIOGRAPHY ..................................................................... 68 List of Cases ......................................................................... 70

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1 Part I The Highlights of the Doctrine of Precedent in Tanzania 1.1 Introduction As the title stand power of the Judges in law making in Tanzania can be looked in a narrow way but in wider sense the title also includes the power of Court because judges cannot make judgment and laws in their home or in street but only in the Courts of laws. The judges make laws when giving different judgements and decisions on the Courts of law. In United Republic of Tanzania we do follow the adversarial law system by which it‟s originating and is followed from the mostly common law countries thus we do give chance for the judges to give binding judgements and different binding rulings. These rulings and judgements given out by different judges and justices are in adversarial system noted as sources of law some laws and other subordinate Courts are bounded to follow them not noting of their correctness or their defects.

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2 1.2 Background of the Problem Tanzania is country formed under the union of two countries Tanzania mainland formerly recognized as Tanganyika and Tanzania Zanzibar which together form United Republic of Tanzania. Tanganyika mainland was colonized by Germany and British as mandate territorial. The legal trend of Tanzania Mainland can be much traced from the British. The British in 1920 introduced a law which was known as Tanganyika Order in Council 4 under the Order 17 5 it establish a Court of Record styled “His Majesty‟s High Court of Tanganyika” which in the Order is referred to as the High Court by which save as expressed the High Court have full jurisdiction civil and criminal over all persons and over all matters in the territory of Tanganyika and also established other subordinate Courts. Further under order 19 6 it establishes professional qualified personnel known as judges as personnel that will be the decisions maker in the established Courts and also magistrates in the subordinates Courts. 4 Tanganyika Order in Council1920 5 Ibid. 6 Tanganyika Order in Council 1920.

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3 Among other laws that were to be used was also common law and doctrine like doctrine of equity. After independence in 1961 the independent government also retained the Court system to be adversarial which was also followed by the British in Tanganyika under the section 2 of the Judicature and Application of Laws Act 7 establishes the High Court of Tanzania as a Court with full jurisdiction in civil and criminal matters. Further under section 23 of the Judicature and Application of Laws Act 8 provides for the laws applicable by which one of them is common law. After the union of East Africa there was establishment of East Africa Court of Appeal which its decisions was binding to the particular state or government thus the Courts of record where the High Court of Tanzania and the East Africa Court of Appeal. After the collapse of the said union the East Africa Court of Appeal collapsed to and then gave rise to the Court of Appeal of Tanzania 9 by which in the case of Jumuiya Ya Wafanyakazi Tanzania 7 The Judicature and Application of Laws Act CAP 358. 8 Ibid. 9 Mapunda A.M Mukoyogo M.C and Nguluma A.T Reflection on Stare Decisis in the Court of Appeal of the United Republic of Tanzania E.A.L.R 1989 page 1

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4 v. Kiwanda Cha Uchapishaji Cha Taifa 10 the justice of appeal where quoted that the Court of Appeal is the successor of the Court of Appeal of East Africa. Thus as this time the Courts of record are the Court of Appeal of Tanzania and the High Court of Tanzania. By which the decisions given by these two Courts are binding to the subordinates 11 . The decisions thus are supposed to be followed thus the decisions have to publish for them to be known by the lower Courts and different legal personnel like lawyers and advocates. This background is traced to show the applicability or the starting point of the doctrine of precedent in the United Republic of Tanzania. The said doctrine has developed from one stage to another and according to the application of the doctrine the issue of accessibility need to be looked with a very careful eye 12 so that the binding of the precedent can be accessed easily. 10 1988 TLR 146. 11 Jumuiya Ya Wafanyakazi Tanzania v. Kiwanda Cha Uchapishaji Cha Taifa1988 TLR 146. 12 Spencer J.R Jackson‟s Machinery of Justice Cambridge Cambridge University Press 1989 page 13.

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5 The advantage of the development of science and technology which brings upon the improvement of easily accessing information in digital environment particularly when it came to the matter of accessing decided cases has been getting some obstacles in Tanzania as the that the binding decisions mostly are on paper based only few cases are found on e- database known as SAFLII and the access of the said decisions is by making application to the Court to be granted or by seeking it to other legal personnel that have the authority over the said binding precedent. In this way it makes the accessibility of these cases being difficult incase a person or institution wants to use a case as precedent and despite the fact that the country now has been facing with these developments such as having e-government sectors but nothing has been done to create a good environment for these cases to be accessible so as to help in making sure that the justice is done by not letting people or institution having problems in finding the decided decisions when the doctrine of precedent is about to be used. Therefore the issue of law reporting and the concept

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6 of precedent in the digital era are very crucial to the judicial organ and society as whole. 1.3 The Concepts of Doctrine of Precedent and Development of Science In this part there are different scholars and philosophers who have written on precedent and some have try to show how does the development of science and technology have affect positively and negatively the growth of the doctrine of precedent. In this part the authors have tried to show some merits and different weakness which have been observed during assessing their work. This is as follows Glanville Williams 13 has written on the doctrine of precedent to be the rule in which judges are bound to or not to decide cases on the given previous base meaning the courts of record decisions bind the subordinate and not vis-à-vis. He further says Judges don‟t admit generally they make laws but they do. In this book he further argued that the judges should not relay on precedents they should even look on the 13 Glanville Williams Learning the Law 8 th edition Universal Publishing Company2010 page 92

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7 people‟s understanding for example contracts and different agreement. The weakness of this author is that he does not speak the history of the said doctrine he does not see if there is a development in this doctrine but gives alternative that the judges should also consider the other issues like people‟s understanding and agreement. Richard H. Bruce 14 this writer provides that precedent can also be called case law or stare decisis meaning stand by decision he further provides that the judges don‟t change law but they just declare laws. The strength of this author is that essential he recognizes the advantages and the disadvantages of the doctrine of precedents. Further and better than the other author this author acknowledges that the doctrine of precedents has develop though such development did not reach to this stage whereby the world is look like a village with the effect of globalization. 14 Richard H. Bruce Success in Law 2 nd edition John Murray Publishers Ltd1988 page 9

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8 Spencer J. R Jackson‟s 15 in “Machinery of Justice “has tried to explain the importance of the doctrine mostly in relation to our research the author has provided the issue of communication in relation to the doctrine he emphasizes that the doctrine on its application needs the issue of access and awareness to be implemented. He provides that a judge cannot be follow a decision that he does not know thus awareness is important in the application of the doctrine to bring about certainty and justice upon it people. In relation to the digital environment the author has provided the necessity for the accessibility of the said binding decisions but the author has not spoken much of the accessibility in recent years as the fact that the development aspect that the author explain is in 1989 which is somehow different from 2015 in which in this decade the rise of digital development is viewed. Frank Mirindo 16 this author‟s work is a very good work and assistance to this research the author has tried to 15 Spencer J.R Jackson‟s Machinery of Justice Cambridge Cambridge University Press 1989. 16 Frank Mirindo Administration of Justice in Tanzania Mainland LawAfrica Publishing Ltd2011 page 99-118

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9 put forward many issues on the doctrine of precedent and mostly in Tanzania Mainland he further address different encumbrances facing the doctrine of precedents in Tanzania this is a strength in relation to this research he further even decision the hierarchy of courts in Tanzania. The author has tried to trace the history and also the issue of the power of the Court of Appeal and the role of precedent in the determination of justice 17 but he never spoke on how does the development of science and technology has assist the accessibility of case in cases in case the doctrine is about to be used. Allen C.K 18 in relation to this research the author has tried to trace the history of the doctrine of precedent from the time of ancient roman jurisprudence to the time that he was writing the book thus he is successful in the tracing the development of precedent but he is not able to cover the applicability of this doctrine in this digital era by which science and technology has 17 Frank Mirindo Administration of Justice in Tanzania Mainland LawAfrica Publishing Ltd2011 page 99-118 18 Allen C.K Law in the making 7 th edition Oxford Clarendon Press1964 page 170

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10 developed. He provides for the application of the doctrine from the ancient times and mostly in England which is a great aid in this research. Sawyerr G.F.A Hiller J.A 19 the importance of this book is that the authors have tried to express the doctrine of precedent in East Africa by which it was the colonial judicial system and even after the independence the East Africa countries continued to have a higher court but later came to fall. The book is among the first books that started providing for the doctrine and the applicability of it. The weakness of the book is that it provides for the doctrine and the applicability of it in the former judicial hierarchy the court of appeal of East Africa by which at the present time it is over taken by the Court of Appeal of Tanzania and this is after the fall of East Africa Community. Also it does not speak on the doctrine in relation to the development of science and technology. 19 Sawyerr G.F.A Hiller J.A The Doctrine Of Precedent In The Court Of Appeal Of East Africa Dar-es-Salaam Tanzania Publishing House 1971.

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11 Cardozo B.N the author has written on different legal matters. 20 The author as a judge of the bench discussed the doctrine and provides many challenges in relation to the doctrine that he stood to reject the doctrine and sought that it brings injustice. Cardozo also provides on the challenge to be poor decision that still binds the lower courts and also the issue of power of judges to make laws. Court of Appeal of Tanzania 21 the author is a Higher Rank Court in Tanzania by which they provided the history of Court system in Tanzania and also the laws applicable. Further the author provides for the authoritative court present in Tanzania. Also the author provides the importance of the doctrine and it‟s significant to the legal personnel including judges and the lawyers. The same as other previous authors the matter of precedent in digital era has not been spoken. 20 Cardozo B.N “The Nature of Judicial Process” New Haven Yale University Press 1921 21 Court of Appeal of Tanzania The History of Administration of Justice in Tanzania Dar-Es-Salaam Mathews Book Store and Stationers 2004.

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12 John F. Horty 22 the author tries to explain some essential element of I judges making laws that they should follow he further explains the necessity of the use of the doctrine he tries also to bring about the powers of the higher court to freedom of change and give new precedent in accordance to circumstance that it is brought to it. This is essential to our research since the issue of precedent should be looked from the root that means from the initial process of making the said precedence to the problem that we want to address. The same as other previous authors the matter of precedent in digital era has not been spoken. Chipeta B.D 23 the author in his publication provided for the necessity of the application of the doctrine he provided the adherence of the lower courts to the decisions provided by the courts of record. Not only that but also the author provided for the issue of certainty that the precedent given out by the courts of record should be known and clear without any 22 John F. Horty “Rules And Reasons In The Theory Of Precedent” Cambridge University Press 2011. 23 Chipeta B.D A Magistrate’s Manual Tabora T.M.P Book Department.

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13 confliction aspect. The same as other previous authors the matter of precedent in digital era has not been spoken. January Nkobogo 24 on his article has clearly and well traced the introduction of the doctrine of precedent in Tanzania Mainland. The author stated the strength of the doctrine and better the writer has addressed different challenges in the applicability of the doctrine in today world for example he has addressed the issue of conflicting decision of the courts of record. In relation to our research the article is very helpful since the author has addressed some examples that are provided that under this research as lacunae to be filled. And also the article tries to cover the importance of the digital migration to make easy accessibility on the application of the doctrine of precedent. 24 January Nkobogo The Doctrine of Precedent in The High Court and the case of Conflicting Decisions: Efforts to ameriorate the problem The Tanzania Lawyer Journal 2004 page 1-24

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14 Mapunda A.M Mukoyogo M.C and Nguluma A.T 25 these writers have clearly traced the doctrine of precedent to the applicability in Tanzania they have also clearly established the development but still they do not address some efficient encumbrances that are present in the said doctrine which are important in relation to our research for example the issue of different factors that lead judges to make decisions. But this publication has some shortfalls mostly because the authors did not only speak of the doctrine but other law issues which made them not to write extensively on the doctrine of precedent. The same as other previous authors the matter of precedent in digital era has not been spoken. Peter W. Martin this author wrote an article known as ”Reconfiguring Law Reports and the Concept of Precedent for a Digital Age 26 ” this article tries to look on the issue of law reporting and the concept of 25 Mapunda A.M Mukoyogo M.C and Nguluma A.T Reflection on Stare Decisis in the Court of Appeal of the United Republic of Tanzania E.A.L.R 1989 page 1. 26 Peter W. Martin “Reconfiguring Law Reports and the Concept of Precedent for a Digital Age”2008 Cornell Law Faculty Publications http://scholarship.law.cornell.edu/lsrp_papers. retrieved on 30 Oct 2015

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15 precedent in the digital era and tries to trace its background and it goes forward till to the digital era. This article it‟s important to our research because the author has been full able to connect the doctrine from its source and to the stages till the present era of which technology and science is higher. International Record Management Trust 27 the article is written by the said management by which they did some research on the issue of the aspect of development of science and technology which could be used to trigger good access and communication to the government and its people and also the issue of development of documentation mostly moving from the paper based document information to the new aspect of digital migration and electronic development. Steven Callander and Tom S. Clark 28 these authors in their article they try to explain different problems 27 International Record Management Trust Managing Records as Reliable for ICT/e-Government and Freedom of Information Tanzania Court Case Study August 2011. 28 Steven Callander and Tom S. Clark Precedent and Doctrine in a Complicated World retrieved from

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16 brought by the doctrine of precedent much on this era where the development of science and technology is seen and also tries to give some solution to the said problems for example they gave solution that they publication of cases for easy access should be emphasized. 1.4 Conclusion As seen in various explanations of precedent as explained by various authors the aspect of the doctrine of precedent in digital environment is new to many of them. Most the writings particularly in Tanzania they do not address the aspect of precedent in digital environment. But this aspect is crucial to the development of law in Tanzania as the fact that the technology speed up the accessibility of various decided cases found on various cases database and gives lawyers a wide choice in a right time on what cases should be used as precedent in a conflict in hand. This can be worldwide compared with previous times in which the development of technology was not http://www.tomclarkphd.com/workingpapersprecedents/ retrieved on 13 Oct 2015

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17 highly available in which cases were to be found physically in courts and other competent institutions as a hard copy. There is this saying „Justice Delayed is Justice Denied’ this is true as the fact that if a lawyer failed to find a proper case in a right time to use it as precedent client right may be partly denied as for the long time used to find a proper case to the conflict. Also his right may be denied as the fact that a lawyer may also failed to get the proper case as there are insufficient accessibility online decided cases which could provide a good case to be used as precedent before the court of law. This is what Tanzanian Courts are facing as the fact that despite having e-government system and other official websites which provide for these cases but still there is insufficient number of online decided cases which could be used as good precedent to the conflict in hand.

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18 Part II The Survey of the Doctrine: Application Historical Background and Significant of the Doctrine. 2.1 Introductory Remarks This part discusses the doctrine the word doctrine hereinafter will refer to the doctrine of precedent in a whole and some specific shortfall. It will consist of explanation of what is the doctrine about the history of the doctrine the applicability of the doctrine in Tanzania and also discuss some significant of the doctrine in Tanzania thus in a summary this part gives details of what is the doctrine about and the connected issues to the doctrine. 2.2 What is the Doctrine of Precedent The term precedent is defined as a decided case that furnishes a basis for determining later cases involving similar facts or issues 29 . The doctrine articulates through 29 Bryan A. Garner Black’s Law Dictionary West Publishing Company 8 TH edition2004 Texas U.S.A. page 1236.

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19 the concept of stare decisis et non quieta movere commonly abbreviated as the stare decisis meaning to stand by things decided 30 . This doctrine is a common law doctrine which entails the blindness of decision from the courts of record to the subordinate Courts. One famous author Glanville Williams on his book 31 explained the doctrine as that cases must be decided the same way when their material facts are the same but obviously not all facts to be the same but the legally material facts may recur and it is with these that the doctrine is concerned. So the doctrine of precedent only works when the case brought before the court of law have the same legal materials or facts as the previous decided case on the court of competent jurisdiction. In this situation such court of competent jurisdiction will pass the former decision made by such court of competent jurisdiction to the current conflict brought to the court. When the cases entertained by such court do not have the same 30 January Nkobogo The Doctrine of Precedent in The High Court and the case of Conflicting Decisions: Efforts to ameriorate the problem The Tanzania Lawyer Journal 2004 page 1. 31 Glanville Williams Learning the Law 8 th edition Universal Publishing Company2010 page 92.

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20 legal facts then the doctrine of precedent cannot prevail. 2.3 The History of the doctrine In this part we shall trace the history of the doctrine in different parts of the world and in different period the place that will be looked are the Ancient Europe by which we shall trace the history of the doctrine in Ancients Rome Greece and England. Also the history of the doctrine in Continental America by which we shall trace in United States and Canada. Further we shall trace again in Continental Asia by which the country looked shall be China and India. Lastly will be the history of the doctrine in URT by starting with before colonialism during colonialism and after colonialism. 2.3.1. The History of the Doctrine in Ancient Europe. The first state to be looked is the Ancient Rome by which the history of the doctrine can be traced from the Roman jurisprudence around 134 to 250 AD. By which the roman had the habit or practice of keeping the day to day decisions and the proceedings of the Courts and there were instance that there were some

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21 same claims and dispute brought forward to the Courts thus they referred back to the decided cases though there was no rules to bind the judges to follow it 32 . Secondly in Ancient Greece by which the Ancient Greece at the age marked as Dark Ages which was about 1200-900 BC had no official laws and no official judges but still there were some people in the jury who could help to guild the proceedings in a court the decision was sometimes determined by the crowed at large then the person would be determine guilty or not guilty. But sometimes the jury would sometimes decide to refer to the decisions that they were decided back thus the issue of precedent grew as the state grew and mostly it‟s because of the development that the Greece copied to other nations 33 Third state is the Ancient England in English Common law system it has been seen different development of the doctrine through it started from the 13 th century but mostly in the 17 th century it was when the decisions 32 Allen C.K Law in the making 7 th edition Oxford Clarendon Press1964 page 170 33 http://www.crystalinks.com/greeklaw.html. retrieved on 09 Oct 2015

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22 of the Exchequer Court began to be reported and also they were given binding force thus the doctrine expanded and developed in a level that the higher Courts decisions were given the so called blindness to the subordinate Courts 34 . Further Sir Edward Coke provided that the doctrine has its source from the Holy Bible by which Moses was the first reporter of the laws provided by the higher authority but again the doctrine was to be considered in making decision but still not binding till later stages 35 . Also some authors provide that the history of the doctrine can be traced by the regime of King Herny II who was crowned in 1154. Soon after the start of his reign he introduced a unified system of laws which were meant to be common to all the subjects in his realm. To enforce this law he appointed judges who resolved disputes on an ad hoc basis however these decisions were recorded and later discussed when the judges and these decisions were then used to guide the future decisions. 34 January Nkobogo The Doctrine of Precedent in The High Court and the case of Conflicting Decisions: Efforts to ameriorate the problem The Tanzania Lawyer Journal 2004 page 1. 35 http://www.lawctopus.com/academike/precedents-as-a- source-of-law/. retrieved on 11 Oct 2015

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23 Later Henry II‟s son King John sealed the Magna Carta which introduced the common law by which the doctrine of precedent is one of the essential issues to be considered. 36 2.3.2. The History of the doctrine in Continental America The first nation to be traced in Continental America is the U.S.A. the history of doctrine of precedent is not too wide since the USA was colonized by the British thus the history of the doctrine of precedent in USA was brought about by the colonization of the USA by the British that established their legal system by which common law was adhered and thus case law was one of the sources of law and it adhered to the doctrine. In USA the Supreme Court of the USA is the court of record in the said state 37 The second is Canada by which the history of the doctrine in Canada is much dependant in the history of the doctrine in England. England colonized Canada 36 http://ece.uwaterloo.ca/dwharder/PPE/History_of_law/_e_pi_7 2CPAGE_ID102C2282298752. retrieved on 28 Oct 2015 37 http://constitution.laws.com/precedent. retrieved on 29 Oct 2015

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24 thus dominated it. Canada acknowledged the issue of precedent and adhered to different laws that were enacted in British one of them is the Magna Carta of 1215 by which recognized the common law and thus adhered to the said common law by which the doctrine is a very essential element to consider 38 . 2.3.3. The History of doctrine in Continental Asia In Continental Asia the country to be looked is first China. China is among strong economical countries in the world it has established its own legal status. China is a follower of the civil law and among the essential element in civil law is the dismiss of the common law and the doctrine of precedent included thus China does not adhere to the doctrine but on 26 th of November 2011 the Supreme People‟s court of China announced the first set of guiding cases two civil law cases and two criminal cases but it should be noted that this does not amount to the establishment of the doctrine because the guiding cases are also acknowledged by the civil law followers and also it 38 http://ece.uwaterloo.ca/dwharder/PPE/History_of_law/_e_pi_7 2CPAGE_ID102C2282298752. retrieved on 27 Oct 2015

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25 should be noted that the only the National People‟s Congress can create law and not the interpretation of judges. 39 The second country to be looked is India. By which the early society of India followed many legal system by which some where the religious system and also the civil legal system of law which did not regard the doctrine as its principle 40 . At later stage India was take by colonial power by which was the British East India Company which they established the Major Courts and placed the laws which mostly were applicable in British and thus introduced the common law which the doctrine is one of the principles and the Court of record is the Supreme Court of India established under article 141 of the Constitution of India 41 . 39 http://ukconstitutionallaw.org/2012/01/26/ruiyi-li-case-law- adopted-by-china/. retrieved on 30 Oct 2015 40 http://www.barcouncilofindia.org/about/about-the-legal- proffession/legal-education-in-the-united-kingdom/. retrieved on 29 Oct 2015 41 SRIJ.K.MITTAL History of Law Reporting in India retrieved in http://www.goggle.com/urlqhttp://www.allahabadhighcourt.in /event/HistoryOfLawReportingInIndiaJKMittal.pdfsaUved0CBk QFjAHahUKEwiDo4CM4rTHAhXPV4gKH. retrieved on 13 Oct 2015

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26 2.3.4. The History and Application of the Doctrine in URT In this part we shall divide it into three phrase by which the first phrase is the application of the doctrine first before colonialism secondly during colonialism and lastly after colonialism. In the first phrase Tanzania had mainly two states and system which are the first the centralized state system and the second is the non-centralized system by which in all the said system there were no formal procedure to adjudicate their conflicts every society had its own way of adjudication the wisdom of the leaders the chief was the one that was respected and honored and sometimes was not bound by precedent but decided according to situation though some times the decisions of the forefathers and their religious believes were supposed to be adhered. 42 In the second phrase in the applicability of the doctrine of precedent during the colonial period is that essential there three important laws that are to be 42 http://tanzanialaw.blogspot.in/2011/10/brief-history-of-judiciary- of-tanzania.html. retrieved on 15 Oct 2015

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27 looked on the history and applicability of this doctrine in the United Republic of Tanzania this is the Tanganyika Order-in- Council of 1920 the Judicature and Application of Laws Act and the Interpretation of Laws and General Clauses Act 1972 as repealed by the Interpretation of laws Act Chapter one 43 . In Tanzania the applicability can be traced from the colonial period of the British colonization this is because the Germany used their legal system which mostly had effects on white and on penal offence was to the Africans 44 . The British in 1920 introduced a law which was known as Tanganyika Order in Council 45 under the Order 17 46 it establish a Court of Record styled “His Majesty‟s High Court of Tanganyika” which in the Order is referred to as the High Court by which save as expressed the High Court have full jurisdiction civil and criminal over all persons and over all matters in the territory of Tanganyika and also established other 43 Act No.4 of 1996 44 http://tanzanialaw.blogspot.in/2011/10/brief-history-of-judiciary- of-tanzania.html. retrieved on 18 Oct 2015 45 Tanganyika Order in Council1920. 46 Ibid.

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28 subordinate Courts. Further under order 19 47 it establishes professional qualified personnel known as judges as personnel that will be the decisions maker in the established Courts and also magistrates in the subordinates Courts. Among other laws that were to be used was also common law and doctrine like doctrine of equity. In the third phrase which is the period after independence in 1961 the independent government also retained the Court system to be adversarial which was also followed by the British in Tanganyika under the section 2 of the Judicature and Application of Laws Act 48 establishes the High Court of Tanzania as a Court with full jurisdiction in civil and criminal matters. Further under section 23 of the Judicature and Application of Laws Act 49 provides for the laws applicable by which one of them is common law. After the union of East Africa there was establishment of East Africa Court of Appeal which its decisions was binding to the particular state or government thus the Courts of record where the High Court of Tanzania and the East Africa Court of 47 Tanganyika Order in Council 1920. 48 The Judicature and Application of Laws Act CAP 358 R.E 2002. 49 CAP 358 R.E 2002.

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29 Appeal. After the collapse of the said union the East Africa Court of Appeal collapsed to and then gave rise to the Court of Appeal of Tanzania by which in the case of Jumuiya Ya Wafanyakazi Tanzania v. Kiwanda Cha Uchapishaji Cha Taifa 50 the justice of appeal where quoted that the Court of Appeal is the successor of the Court of Appeal of East Africa. Thus as this time the Courts of record are the Court of Appeal of Tanzania and the High Court of Tanzania. By which the decisions given by these two Courts are binding to the subordinates 51 . Thus the two Courts are the Courts of Record the Court of Appeal in the case of Jumuiya ya Wafanyakazi Tanzania v Kiwanda cha Uchapishaji cha Taifa 52 held that historically this Court is the successor to the Court of Appeal of East Africa in respect of the United Republic of Tanzania. The Court of Appeal of East Africa had jurisdiction to overrule its earlier decision within the scope stated in the case of Dodhia v 50 1988 TLR 146. 51 Jumuiya Ya Wafanyakazi Tanzania v. Kiwanda Cha Uchapishaji Cha Taifa1988 TLR 146. 52 Ibid.

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30 National Grindlays Bank Ltd and Another 53 . That was the position of the Court of Appeal for East Africa on this point. Since the Court of Appeal is a successor of the former court it stands in the same position as its predecessor unless the law establishing it expressly provided to the contrary. A close scrutiny of the Constitution of the United Republic and the Appellate Jurisdiction Act 1979 shows that the Court of Appeal of Tanzania has been vested with more powers than its predecessor had. For instance the Court of Appeal of Tanzania has jurisdiction in constitutional matters whereas its predecessor had none in so far as Tanzania was concerned. In short the Court of Appeal of Tanzania has inherited all the jurisdiction vested in its predecessor and has in addition been granted more 54 . The Court thus has the jurisdiction stated in the Dodhia v National Grindlays Bank Ltd and Another 55 . To the High Court in the case of Nkandi Nangale v R 56 the Court held that the High Court under the doctrine of 53 Dodhia v National Grindlays Bank Ltd and Another 1970 EA 196 54 Frank Mirindo Administration of Justice in Tanzania Mainland LawAfrica Publishing Ltd2011 page cxiv. 55 1970 EA 196. 56 Nkandi Nangale v R CAT 1991 Unreported

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31 precedent one High Court judge is not bound by a decision of another High Court judge since in such a case both judges are in horizontal dimensions of the doctrine of precedent. 2.4. The significant or importance of the doctrine Essential the doctrine is one of the important doctrines to be considered mostly in the adversarial system followers the following are the significance of the said doctrine. But first a short look on ancient philosophers is important by which one jurist and a philosopher known as Justice Cardozo 57 outlined some issues on the importance of the doctrine in which he said inter alia “In these days there is a good deal of discussion whether the rule of adherence to precedents ought to be abandoned altogether I will not go so far myself. I think adherence to precedents should be the rule and not the exception” 57 Cardozo B .N The Nature of the Judicial Process New Haven Yale University Press 1921 p.149.

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32 Thus the significant of the doctrine of precedence are as follows The doctrine is sought about to bring the certainty of law. The issue of certainty of law is a very wide concept that has been discussed from a decade from the early positivism stage and to this age it has been seen to be settled in a bit. The issue of certainty in the article of January Nkobogo 58 in the issue certainty he cited the case of Republic vs. Dawes and Marten 59 by which in this case it was held inter alia „The certainty is one great object of all legal determination and pecuniary to be wished for in that branch of the law which concerns corporations because such questions are often agitated with a heat and spirit not to be satisfied by the best reasons of the soundest discretion and only to be checked by the authority of rules and precedents deliberately settled upon former occasions‟ 58 January Nkobogo The Doctrine of Precedent in The High Court and the case of Conflicting Decisions: Efforts to ameriorate the problem The Tanzania Lawyer Journal 2004 page 14. 59 1767 4 Burr.2120.

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33 The importance of certainty is also seen or viewed in the case of Bishop of London vs. Ffytche 1782 it held inter alia that “The object of the law is certainty especially such parts of the law as are of extensive and general influence which affect the property of many individuals and which inflict pecuniary penalties which create personal disabilities and which work for features of temporal rights.” In Tanzania the famous case of JUWATA vs. KIUTA 60 has outlined also the importance of certainty by which it held that the system of law is a system which requires a considerable degree of certainty also uniformity. The issue of certainty most is significant because it brings about the equality of justice that a person given this by the court should also be able to grant it in the other future time when the other person comes to seek justice to the court it lays down the same equality to justice. Thus as provided on the case of JUWATA vs. KIUTA 61 that the courts of record are the High Court of 60 1988 TLR 146 61 Ibid.

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34 Tanzania and the Court of Appeal of Tanzania and that the decisions made by this Courts of law shall bind the subordinate Courts not considering whether its right or not they should not question its correctness. The subordinate courts are bounded not to depart from the said decision or judgment. Secondly the doctrine of precedent also has the significant that it provides the authoritative to the Courts of record and the guidance power of the law to the subordinate courts. That the doctrine gives authority to the courts of record that its decisions should and must be adhered and they should not be disregarded for any reason by the subordinate court. Thus this shows some higher rank some superiority some control and also some authority of the courts of record the high court and the court of appeal towards the subordinate courts. The Courts of record have guidance through the said doctrine it shows control. The subordinate courts are guided by the wisdom and the decisions of the high court and the courts of appeal they are guided by the said judgment and different decisions.

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35 Thirdly the doctrine also tries to build good image of the courts of law to its people who wants justice to be determine by the courts of law. The essence of this is to avoid giving the parties and the general public a false impression that results of cases in courts of law perhaps depend more on the personalities of the judges than on the laws of the land 62 . In this the courts of records when they give out the decisions they became binding to the subordinate court thus anybody who has the case of which the material facts fall on the same point of law as decided by the superior courts then the others courts are bounded to decide on merit as decided by the superior courts or the courts of records thus by doing this the image of the judicial organ is not spoiled on the fact that the court of law is not certain that it just looks on the one who comes to seek justice to it for example a rich man and a poor man but this doctrine removes this aspect because the lower courts are bounded not to depart from the decisions of the Court of Appeal and the High Court. 62 Ally linus and Eleven Others v. T.H.A and Another 1998 TLR 5.

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36 Fourthly the doctrine has the significant of time saving 63 . It saves time of the honorable Courts because the leaded judge magistrate or other umpire side in an adversarial system will be saved on time wise because they won‟t toil themselves to go to have more and deep research the same material fact if have been decided by the Courts of record then the subordinate Courts will have to adhere and follow the said decision. Fifthly the issue of flexibility 64 that the doctrine of precedent brings about the issue of flexibility in law. It may take a long period or long time for the parliament to change a said law to bring about a new law but for the Court of law and the said doctrine even if there was a point of law understood on a specific way if the courts of record decide otherwise then the law has to change and the subordinate courts have to decide on the said new point of law as decided by the Courts of 63 http://getrevising.co.uk/forums/topics/what_are_the_advantage s_and_disadvantages_of_judicial_precedent retrieved on 30 Oct 2015 64 http://getrevising.co.uk/forums/topics/what_are_the_advantage _and_disadvantage_of_judicial_precedent. retrieved on 30 Oct 2015

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37 record on the applicability of the doctrine of precedent 65 . 2.5 Conclusion The doctrine of precedent is one of the important doctrines which in relationship to other doctrine it tries to give justice to anyone who seeks the Court to determine justice. This doctrine binds the lower Courts by the decisions of the upper Courts the applicability of this doctrine can be traced from the ancient times and the development from the ancient time is seen but still a new development should be considered to bring about justice. The new development in precedent is needed in different aspects mostly the aspect of science and technology. 65 Sawyerr G.F.A Hiller J.A The Doctrine Of Precedent In The Court Of Appeal Of East Africa Dar-es-Salaam Tanzania Publishing House 1971 page 108.

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38 Part III THE ASSESMENT OF THE DOCTRINE EVOLUTION OF SCIENCE AND TECHNOLOGY LESSONS FROM DIFFERENT STATE “In any jurisdiction that follows the common law tradition where precedent forms an important source of law as it‟s the same to United Republic Tanzania accurate as well as accessible and reliable law reporting is of paramount importance. Law reports serve as an important guidance as to what the law is. They provide the raw material to facilitate application of law to real situations and real people in everyday life. Besides judges and magistrate heavily rely upon them in reaching their decisions.” 66 Emphases provided 66 Court of Appeal of Tanzania The History of Administration of Justice in Tanzania Dar-es Salaam Mathews Book Store and Stationers 2004 page 123.

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39 3.1 Introductory Remarks This part is the most important in this paper. Its importance is that this part underlines and discusses the general challenges that are faced by different legal personnel in application of the doctrine in digital environment. It also discuss the main problem that is the issue of conflicting decisions in digital environment what are the factors leading to the problem of conflict decisions in digital environment the examples of the said conflicting decisions in Tanzania what are the challenges facing due to the said conflicting decisions does it bring growth of law does it lead to justice. The issue of rise of science and technology will be discussed also and finally this part draws a lesson from different countries that have tried to solve the said problem by developing the issue of precedents into a digital world a world of science and technology that we are in today.

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40 3.2 The General Challenges and Problem Facing the Application of the Doctrine. The following part outlines and discusses the general challenges of the application of the doctrine in United Republic of Tanzania A. Firstly neglect of the legal personnel wisdom and capability to interpret law to determine justice. The doctrine of precedent as it has evolved within the common law has at its heart a form of reasoning broadly speaking a logic according to which the decisions of earlier courts in particular cases somehow generalize to constrain the decisions of later courts facing different cases while still allowing these later courts a degree of freedom in responding to fresh circumstances 67 . Although the techniques for arguing on the basis of precedent are taught early on in law schools mastered with relative ease and applied on a daily basis by legal practitioners it has proved to be considerably more difficult to arrive at a theoretical understanding of the 67 John F. Horty “Rules And Reasons In The Theory Of Precedent” Cambridge University Press 2011 page 1

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41 doctrine itself a clear articulation of the underlying logic 68 . The logic taught in law schools is neglected by the application of the doctrine. The lower court personnel in their adjudication activities they understand different facts and different issues rather than the precedent at hand they need to have a knowledge of the law thus they can apply the law to determine justice but by the application of the doctrine the lower courts personnel are bounded to follow the decisions of the higher courts or the courts of records thus limits their thinking and the wisdom of the law. The case landmark case of JUWATA vs. KIUTA 69 in which the case bring about the bendiness of the decisions of the High Court of Tanzania and the Court of Appeal of Tanzania binds the lower court personnel to bind with the decisions of the said above courts and not to judge on their wisdom or thinking or legal logical capacity but to follow and adhere to the wisdom and the guiding of the Courts of record as provided above. One of the famous and known philosophers and Court personnel 68 http://www.lawcourts.org/LPBR/reviews/duxbury1208.htm. retrieved on 28 Oct 2015 69 supra

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42 Justice Jerome Frank criticized the issue of doctrine of precedent and provided that it does not give chance the legal personnel to show their capability in legal interpretation and further he went ahead and provided that the said behavior of not being free and criticizing the doctrine is due to laziness and childish behaviors of the legal personnel 70 . One legal personnel Advocate Dickson Sanga 71 on an interview address the said problem and contributed that there are sometimes that the Magistrates sees the better way to decide the case in order to reach to the justice but they are bounded by the precedence for example the issues of procedures they sometime need to be looked there are some reasons that the trial magistrate sees that they are of important but the other counsel comes out with an important and cruel case decided by the Court of Appeal of Tanzania in respect of the said issue thus the magistrate has no any way 70 http://www.sjol.co.uk/issue-3/extra-judicial-reasoning. retrieved on 09 Nov 2015 71 Advocate of the High Court of Tanzania and subordinate courts thereto save the Primary Court and works with Legis Attorneys P.O BOX 3750DSM.

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43 out rather than to decide in accordance to the said precedent. B. Secondly the application of the said doctrine can lead to injustice 72 . The doctrine sometimes creates injustice if followed. This is due to the fact that a decision can be produced by which it‟s wrong on one aspect or on its totality but the higher court has not ratified it. There are many factors that can lead the judge to judge on the matter at hand on a specific base. Justice Jerome Frank a philosopher provided that there are many factors that lead for a judge to determine a matter in the reached judgment 73 . It can be that a judge was given some money corruption it can be that a judge follows a certain belief for example in issues of rejecting the decisions of a political party and the judge unexpressly is a follower of that party or a judge is destructed by 72 January Nkobogo The Doctrine of Precedent in The High Court and the case of Conflicting Decisions: Efforts to ameriorate the problem The Tanzania Lawyer Journal 2004 page 16. 73 http://www.sjol.co.uk/issue-3/extra-judicial-reasoning. retrieved on 09 Nov 2015

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44 certain beliefs or different human condition this can lead to a judge to give a certain decision. Thus by the application of this doctrine the lower courts ought not to give any decision that neglects or any decision that neglect or reject or depart from the decisions of the courts of record by which as mentioned above can be given from different situations and circumstance for example due to corruption or even the breach of the doctrine of independence of judiciary which is provided under Article 107B 74 of the Constitution of Tanzania 75 where by the other part or organ of the state either the parliament or the executive interfere the judicial organ and force it to make decisions on it favour this will stay as precedent if decided by the courts of record thus it will bind the other courts and sometimes the decision made can be wrong thus cause injustice. The other problem is the issue of conflicting decision which will be 74 Article 107B. In exercising the powers of dispensing justice all courts shall have freedom and shall be required only to observe the provisions of the Constitution and those of the laws of the land. 75 The Constitution of United Republic of Tanzania 1977 as amend from time to time.

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45 discussed under the next part due to the fact that it forms a great part in this research. 3.3 The Problem of Conflicting Decisions. In this part which entails the whole essence of the paper tries to look on the factors leading to conflicting decision some examples of the conflicting decision and the challenges due to the said conflicts that whether the challenges facilitate growth of law and whether justice is attained by the said conflict. Conflicting decision in this paper means the decisions that are not the same that the decisions differ in some aspect or on its totality with the other decision. 3:3:1: Factors Leading To Conflicting Decision. A. The issue of poor management and inaccessibility of the unreported cases decision. The doctrine of precedent in its wide view it needs the issue of publication it needs the decided case of the Courts of records to be published and made present to the general public. One author Spencer outlined the importance of precedent and also provided the importance of publication. He provided that in order

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46 for a judge or magistrate to adhere or follow the binding decision from the courts of record the said decision must be known to the said judge or the magistrate 76 . In Tanzania Chief Justice Fracis Nyalali in his foreword to the publication of the 1980 Tanzania Law Reports provided that “It cannot be disputed that a judge or advocate or any lawyer for that matter that matter cannot be effective in discharging his responsibilities if he does not have the essential legal tools in a legal system like ours where precedent plays a crucial role in the administration of justice 77 ” Further the issue of publication is also seen by the Court of Appeal by which on its publication they held that “In any jurisdiction that follows the common law tradition where precedent forms an important source of law accurate as well as accessible and reliable law reporting is of paramount importance. Law reports 76 Spencer J.R Jackson‟s Machinery of Justice Cambridge Cambridge University Press 1989 page 13. 77 Nyalali F foreword to the First Volume of the 1980 Tanzania Law Reports at page iii.

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47 serve as an important guidance as to what the law is. They provide the raw material to facilitate application of law to real situations and real people in everyday life. Besides judges and magistrate heavily rely upon them in reaching their decisions.” 78 Thus the record publication of the case decided is very important to the applicability of the doctrine but still there are many unreported cases. In the issue of management of judicial records it is split between the registries and the judicial officers. While the registries handle the information as it comes in and out as well as the records themselves once the cases have been concluded custody of the case file rests with the case officers and court clerks while the case in underway. The number of registries in a judicial institution varies depending on its size and functions 79 . The case keeping is not good the case after being decided it‟s 78 Court of Appeal of Tanzania The History of Administration of Justice in Tanzania Dar-es Salaam Mathews Book Store and Stationers 2004 page 123. 79 International Record Management Trust Managing Records as Reliable for ICT/e-Government and Freedom of InformationTanzania Court Case Study August 2011.page 10.

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48 placed in the Courts registry store by which is not well. Current files are kept in registries while semi-current and non-current records are kept in records storerooms. Civil and criminal cases are stored in the Judicial Archives situated at the High Court 80 . There is a severe shortage of space for records storage. In some of the courts visited some of the non-current records are heaped in court rooms because of lack of storage space. At the High Court registry for example there are so many non-current paper files that registry staffs do not have space to sit. Many other paper files have been dumped on the basement floor unarranged and almost irretrievable. Thus the judge is not having full access to the court decision decided at a time it‟s seen that the counsels or advocates have better precedence and case decisions than the honorable courts which are to decide. Due to this it raises the issue of conflicting decisions of one judge or magistrate with another. 80 International Record Management Trust Managing Records as Reliable for ICT/e-Government and Freedom of InformationTanzania Court Case Study August 2011.page 11.

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49 B. Other factor is the issue of lack of legal research and better understanding of the law. 81 This issue arises out of persons accept of how to conduct his or her task. The laws that regulate the legal personnel need them to have competence on their adjudications and their practices for example under rule 21 of the code of judicial 82 provide “A Judicial Officer should be true and faithful to the law and should acquire and maintain such professional competence in it as to enable him to achieve its proper and smooth administration.” The provision above provides that the judicial personnel should acquire and maintain professional competence the said competence refers to maintain the standard by which the personnel are employed of 81 January Nkobogo The Doctrine of Precedent in The High Court and the case of Conflicting Decisions: Efforts to ameriorate the problem The Tanzania Lawyer Journal 2004 page 17. 82 Code Of Conduct For Judicial Officers Of Tanzania 1984.

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50 on this it is required to make research to make some inquires of what is it about the law is the law present or is it that a person is using author that are amended or that it‟s a dead law. On the side of the advocates also they are supposed to hold the Court to reach into justice they are the officers of the Court. One of the rules that guide the Advocates is the rule to professional care and skills. Under rule 372 of the rule of conduct of Advocates 83 it provides “Subject only to his overriding obligation to act at all times in an honest upright our honorable way an Advocate‟s paramount duty is to his client to serve his interests with his best skill and care: to preserve his confidences and to be diligent and punctilious over his financial dealings with him” The issue to stress in the said rule is that advocate has a paramount duty to the client interest to help him with his best skills and care and one of them is to make sure 83 The Rules of Professional Conducts Etiquette of the Tanganyika Law Society

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51 that he check the law to how it can help him he should do best research in order to help him. But in this the legal personnel let it be advocates or the judge or the magistrate have been reluctant not to do research by which it leads to different conflicting decisions. 3.3.2 Some Examples of the Addressed Conflict in Tanzania. This part looks on different decisions that are decided by the Courts in Tanzania that have lead or show the issue of conflicting decisions. On the first example we shall look on how the High Court interpreted the issue of pecuniary jurisdiction of the High Court mostly the Commercial Division. On this we shall see how the Court interpreted section 40 of the Magistrate‟s Court Act 84 In this the case of The Jubilee Insurance Company of Tanzania Limited vs. DHL 85 decided by Judge Kalegeya and the case of Haji A. Ukwaju t/a Wajenzi Enterprises 84 Magistrates‟ Court Act Cap. 11 as amended in 2002. 85 The Jubilee Insurance Company of Tanzania Limited vs. DHL Commercial Case No. 16 of 2003 High Court of Tanzania Comm. Div at Dar-es-Salaam.

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52 vs. The National Micro Finance Bank and Joseph Musiba 86 decided by judge Bwana. In the first adjudicated by Judge Kalegeya he decided that the interpretation of section 40 of the Magistrates‟ Act 87 is that the issue of pecuniary jurisdiction is that it should be interpretated to be from ten hundred million 100000000 and above that the High Court has no pecuniary jurisdiction to entertain the case of less amount while judge Bwana on the said case interpreted that the said section should be interpreted to bind the lower courts and not the High Court that the High Court is not limited with any pecuniary amount. This is a conflict that can be seen but this matter is settled by the Court of Appeal in the case of Tanzania- China Friendship Textile Mills Limited vs. Our Lady of the Usambara Sisters 88 by which it held the powers of the 86 Haji A. Ukwaju t/a Wajenzi Enterprises vs. The National Micro Finance Bank and Joseph Musiba Commercial Case No. 27 of 2003 High Court of Tanzania Comm. Div at Dar-es-Salaam. 87 Magistrates‟ Court Act Cap. 11 as amended in 2002. 88 Tanzania- China Friendship Textile Mills Limited vs. Our Lady of the Usambara Sisters 2006 TLR 70.

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53 High Court are not unlimited as held by Kalegeya J but it is subject to other laws. The other example 89 is the interpretation of the phrase “children born in wedlock belongs to the father 90 ” by which the case of Mgowa Madole vs. Mgogolo Dododo 91 and also the case of Mnyajila Lumolwa vs. Mundo Sajilo 92 . By which in the case of Mgowa the learned judge held that even the children born out of adulterous association while the marriage subsisted belonged to the lawful husband of that marriage no matter who their biological father may be. In the case of Mnyajila Mwalusanya J. held that child born in wedlock should be strictly refer to the children who are born to people who are married to one another and therefore cannot refer to children begotten adulterously by any of the spouses. 89 January Nkobogo The Doctrine of Precedent in The High Court and the case of Conflicting Decisions: Efforts to ameriorate the problem The Tanzania Lawyer Journal 2004 page 4. 90 Paragraph 175 of the Customary law Declaration Order G.N No. 279 of 28 th June 1963. 91 Mgowa Madole vs. Mgogolo Dododo 1973 L.R.T No. 7. 92 Mnyajila Lumolwa vs. Mundo Sajilo Civil Appeal No. 2 of 1991 High Court of Tanzania at Dodoma.

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54 Thus as provided the issue of conflict of law is an issue to be addressed the doctrine of precedent still keeps binding of the lower courts from the said decisions of the court of record. But the problem is that the decisions are conflicting and it‟s a problem. 3.4. The Evolution of Science and Technology in This Digital World in Connection of the Doctrine. The world of today it‟s changing it started from the communalism stage to slavery mode feudal mode to capitalism mode in which the growth of science and technology has been seen to rise in a great extent. We have seen much movement from the paper based document to the digital mode based. The said development should help the development of the doctrine of precedent. In defining the meaning of digital world it can be define as a phrase by which electronic spectrum of data creating storing retrieving and synchronizing is emphasized 93 . The doctrine of precedent thus should also move to the digital era by which some countries have tried transformed the doctrine to the said era. 93 http://mobile-dictionary.reverso.net/english- cobuild/digital20world. retrieved on 13 Nov 2015

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55 3.5. Lesson from Other States and Nations. This part looks on the other states and nations to how they have addressed the doctrine of precedent to solve its challenges and mostly the conflicting problem. These nations have connected the doctrine with the present era the digital era by which they have tried to adopt new ICT method in which a central system is established that everyone can have access of the decisions pronounced through logging to through internet to the said central system 94 . 3.5.1. Lesson from the U.S.A U.S.A is the leading country in the world in economic purpose but not only in economic purpose only even the aspect of science and technology the country has gone forward. In USA judicial development of the doctrine the nation has connected the doctrine with the aspect of science and technology. The USA introduced a centralized system known as PACER 95 . 94 Peter W. Martin “Reconfiguring Law Reports and the Concept of Precedent for a Digital Age”2008 Cornell Law Faculty Publications page 18-21. 95 http://www.pacer.gov/_e_pi_72CPAGE_ID102C7505795168. retrieved on 11 Nov 2015

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56 PACER is an electronic public access service that allows users to obtain case and docket information online from federal appellate district and bankruptcy courts and the PACER Case Locator. PACER is provided by the Federal Judiciary in keeping with its commitment to providing public access to court information via a centralized service 96 . This system helps the decisions of the Courts of records to be available to many people and the judicial personnel thus reduces the challenges of doctrine of precedents including conflicting decisions due to their availability. 3.5.2. Lesson from U.K. In the United Kingdom the issue of science and technology is also emphasized. In relation to our paper the is an establishment of a centralized system whereby the cases are kept it is famously known as BAILII by which in this people get a chance to access the British and the Irish legal information 97 . Law reports have been produced in England since the 13th century. Legal historians have suggested various 96 ibid. 97 http://www.bailii.org/. retrieved on 15 Nov 2015

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57 reasons for their existence - precedent educational record keeping and entertainment value 98 . These reasons continue to be relevant but the formal reason is that of precedent. In the article of Leith P. Fellows 99 about the history of legal digital keeping and the BAILII he provided that Thus access to the law reports is essential not only to lawyers and judges but also to the teaching and study of the common law because in common law countries the real meaning of law lies in the case law which interprets legislation. In United Kingdom the costs of dissemination of case law were thus met through the private enterprise of the law reporter and - amongst other agencies and publishers - the Incorporated Council of Law Reporting ICLR which publishes law reports of the decisions of the Superior and Appellate Courts in England and Wales. 100 But as the time went on the BILETA British and Irish Law 98 Leith P. Fellows C. BAILII Legal Education and Open Access to Law European Journal of Law and Technology Vol. 4 No. 1 2013. Retrieved in http://ejlt.org/article/view/209/289 99 Leith P. Fellows C. BAILII Legal Education and Open Access to Law European Journal of Law and Technology Vol. 4 No. 1 2013. Retrieved in http://ejlt.org/article/view/209/289. 100 Leith P. Fellows C. BAILII Legal Education and Open Access to Law European Journal of Law and Technology Vol. 4 No. 1 2013. Retrieved in http://ejlt.org/article/view/209/289.

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58 Education and Technology Association reports from 1991 1996 2001 and 2003 on access to technology in law schools paint a dismal picture of technology improving but slightly 101 . Thus the said development gave the creation of the BAILII by which essentially has made the digital judgments production from word processing improved access to the law very substantially on a worldwide basis though it is the common law countries where the full reasoning appears in the higher judgments. 3.5.3 Lessons from Uganda and Kenya. Though there has been an improvement in Southern Africa countries by the establishment of website known as Southern African Legal Information Institute SAFLII 102 including Tanzania but the two countries have tried to extend and improve the ICT management issues by establishment of websites that case are kept. In Uganda they have created the Uganda Legal Information Institute ULII 103 while in Kenya they have 101 Leith P. Fellows C. BAILII Legal Education and Open Access to Law European Journal of Law and Technology Vol. 4 No. 1 2013. Retrieved in http://ejlt.org/article/view/209/289. 102 http://www.safli.org retrieved on 23 Sept 2015 103 http://www.ulii.org retrieved on 23 Sept 2015

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59 established the Kenya Law Report by which the monthly decisions are provided in the website 104 . 3.6. The Development Viewed in Tanzania On E- Government. In recent years Tanzania has shown to develop from one stage to the other stage they have shown to acknowledge the use and the advancement of technology. The years of paper based are on the end period by the recognition viewed. The digital migration has started to be seen and the following are some showing the acknowledgement of going to the digital migration. First the acknowledgement and the use of website called SAFLII by which this is a website that the Southern African countries uses it in making the access of binding decisions legislation law journal and even different reports from national reforms 105 . In this mostly some of the Court of Appeal of Tanzania decisions are 104 http://www.kenyalaw.org retrieved on 29 Sept 2015 105 http:www.africaulii.org/node/233 retrieved on 23 Sept 2015

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60 found but still not all and the decisions mostly found are up to 2011 106 . The other development seen is the use of ICT development in the High Court Commercial Division by which the development is seen. In 2004 the Division introduced court recording systems which effectively started in 2005 with analog recording systems and later in 2006 it moved to digital mobile recording system. The Division now has in place a Digital Computer Aided Recording and Transcription System which allows evidence in trials to be recorded and transcribed thus relieving Judges of the tediousness of recording evidence by long hand 107 . The division also facilitates the use of digital record keeping and the whole area of digital migration by which even documents can be exchanged through emails 108 . The problem of this development is that the development has not looked much on making sure 106 http:www.saflii.org/tz/cases/TZCA/ retrieved on 19 Sept 2015 107 The High Court of Tanzania Commercial Division THE COMMERCIAL DIVISION What it is How it function how you can use it 20011. 108 Ibid.

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61 that all the decisions of the commercial division are accessible to anyone the decision are all found in their website for people to access them. And also generally the development and the acceptance of the digital migration is just to some courts like the commercial division but the main registry of the High Court does not keep their cases to be accessible by the general public and its users. 3.7. Conclusion. The challenges of the doctrine are as addressed in the above parts the challenges in a whole hinder the growth of law due to the fact that the judges make law on the fact that on the day to day they address different legal issues and make new approach of law. The issue of conflicting decision is a problem and it has been addressed by many authors and academicians the said problem is also in Tanzania as addressed. Due to the said problem the doctrine has to develop to reduce and solve its challenges due to the present development of science and technology.

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62 Part IV Conclusion and Recommendations 4.1. Conclusion This is the last part of this paper which gives out the conclusion of the whole paper and apart from giving the whole conclusion this part also provides some recommendation on how to solve the said challenges and how to develop the doctrine into the current digital era. As far as the whole parts of this paper confirms that there is a problem in accessibility of decided case in digital environment particularly when the doctrine of precedent is about to be in use the following are the recommendations 4.2 Recommendations to the Judiciary The judicial is an organ of the state this organ is the main organ that makes or takes into action the doctrine of precedence. The judicial on its own motion should motivate the development of the doctrine it should try to connect the issue of advancement science and technology to the development of ICT to advance the applicability of the doctrine. The

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63 centralized system by which all case can be found every weekly case Decided By The Courts Of Record Should Be Present In The System Created. 4.3 Recommendations to the Law Makers Legislature The Parliament of Tanzania is the one that makes law to be interpreted by the judicial organ. To their part they should look on the laws to regulate the doctrine they should make a law that provides a necessity from shifting from the document based form to the digital document base form and also should emphasize the development of the doctrine in order to fit in this digital world as provided in the above from the lessons from other jurisdiction. Also should enact laws that will facilitate and protect the said digital migration. An initial development has started to be seen the following are the development that can help the transformation or the development of the doctrine of precedent for it to attain the accessibility to different users and legal personnel.

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64 Firstly it is the enactment of the Cybercrime Act 109 by which at first it was brought as a bill and it was assented on the 25 th April 2015 by the President of United Republic of Tanzania into law and by which notice was given out and on 1 st September 2015 the law started its application in Tanzania. The government has however maintained that the main objectives behind the Act are to protect sensitive infrastructures and reduce vulnerability and minimize the damage that cyber-attacks may cause 110 . The Act among other provisions on its advantage has well placed legal effect on different issue in relation to the recommended system by which the Act provides for the crime of illegal access by which section 4 provides “1 A person shall not intentionally and unlawfully access or cause a computer system to be accessed 2 A person who contravenes subsection 1 commits an offence and 109 Cybercrime Act 2015. 110 http://breakthroughattorneys.com/cybercrimes-act-2015- tanzania/ retrieved on 30 Oct 2015

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65 is liable on conviction to a fine of not less than three million shillings or three times the value of the undue advantage received whichever is greater or to imprisonment for a term of not less than one year or to both.” This section acts as protection to the legal personnel mostly judges of the High Court and the Justice of Court of Appeal to have their own protected access in restriction of others no to have the same access as the higher legal personnel who are the ones who make the binding precedents. Further section 8 of the Cybercrime Act 111 provides of another way to protect the system recommended by which the section provides for the crime of illegal interference by which any person unlawfully that damages delete alters and also who obstruct any computer system including the recommended system will be liable of the offence. In international level the protective means have already been place there are laws like the Berne Convention 1886 1961 Rome Conventions and also 111 Cybercrime Act 2015.

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66 WIPO Copyright Treaty of 1996 and also the Copyright and Neighboring Act Trademark and also the Patent Acts are there to protect the intellectual property rights 112 . Further there is a bill tabled in the Tanzania parliament known as Data Protection and Privacy Bill 113 herein after recognized as bill by this bill recognize and protect different data but in this the bill much looks on the private or personal data and also stress on the issue of confidentiality according to the proposed section 38 of the Bill this bill should be extend to cover the data that the recommended system is also be protected but a small ratio of the bill will help the protection of the system because under the proposed section 4 it defines data as to refer to all representations of information notwithstanding format or medium thus the data in the recommended system will be protected. 112 ASHERRY Magalla “Development of Information and Communications Technology in Tanzania: Discussion on Protection of Software Intellectual Property” 2013 retrieved in https://bagamoyouniversity.academia.edu/AsherryMagalla. 113 Data Protection and Privacy Bill2013.

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67 4.4 Recommendations to Academicians. Every country which undergo further development it needs the aid from different academicians. Academicians from different institutions colleges and universities should see this work as a ground for more research. To research more in issues of the doctrine precedent so that we can come up with a better doctrine that will help us in the daily dispensing of justice by the Courts of law and its tribunal.

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68 BIBLIOGRAPHY Books Allen C.K “Law in the making” 7 th edition Oxford Clarendon Press1964 . Bryan A. Garner “Black’s Law Dictionary” West Publishing Company 8 TH edition 2004 Texas U.S.A. Cardozo B .N “The Nature of the Judicial Process” New Haven Yale University Press 1921. C.K.Kothari “Research Methodology Methods and Techniques” 2 nd Edition New Age International Publishers New Delhi 2004. Court of Appeal of Tanzania The History of Administration of Justice in Tanzania Dar-es-Salaam Mathews Book Store and Stationers 2004. Frank Mirindo “Administration of Justice in Tanzania Mainland” LawAfrica Publishing Ltd 2011. Glanville Williams “Learning the Law” 8 th edition Universal Publishing Company 2010.

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69 John F. Horty “Rules And Reasons In The Theory Of Precedent” Cambridge University Press 2011. Mcleod L “Legal Method” 5 th Ed Hampshire Palgrave Macmillan 2005. Richard H. Bruce “Success In law” 2 nd edition 1988 John Murray Publishers Ltd 50 Albemarle Street London. Sawyerr G.F.A Hiller J.A “The Doctrine Of Precedent In The Court Of Appeal Of East Africa” Dar-es-Salaam Tanzania Publishing House. Spencer J.R Jackson‟s “Machinery of Justice” Cambridge Cambridge University Press1989. STATUTES The Code of Conduct for Judicial Officers of Tanzania 1984 The Constitution of United Republic of Tanzania 1977 The Customary law Declaration Order G.N No. 279 of 28 th June 1963

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70 The Judicature and Application of Laws Act CAP 358 The Magistrates‟ Court Act Cap 11 as amended in 2002 The Rules of Professional Conducts Etiquette of the Tanganyika Law Society The Tanganyika Order in Council 1920 List of Cases Jumuiya Ya Wafanyakazi Tanzania v. Kiwanda Cha Uchapishaji Cha Taifa 1988 TLR 146. Ally linus and Eleven Others v. T.H.A and Another 1998 TLR 5 Dodhia v National Grindlays Bank Ltd and Another 1970 EA 196 Republic vs. Dawes and Marten 1767 4 Burr.2120 The Jubilee Insurance Company of Tanzania Limited vs. DHL Commercial Case No. 16 of 2003 High Court of Tanzania Comm. Div at Dar-es-Salaam. Haji A. Ukwaju t/a Wajenzi Enterprises vs. The National Micro Finance Bank and Joseph Musiba Commercial

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71 Case No. 27 of 2003 High Court of Tanzania Comm. Div at Dar-es-Salaam. Mgowa Madole vs. Mgogolo Dododo 1973 L.R.T No. 7 Articles International Record Management Trust “Managing Records as Reliable for ICT/e-Government and Freedom of InformationTanzania Court Case Study” August 2011. January Nkobogo “The Doctrine of Precedent in The High Court and the case of Conflicting Decisions: Efforts to ameriorate the problem” The Tanzania Lawyer Journal 2004. Mapunda A.M Mukoyogo M.C and Nguluma A.T “Reflection on Stare Decisis in the Court of Appeal of the United Republic of Tanzania” E.A.L.R 1989. Peter W. Martin “Reconfiguring Law Reports and the Concept of Precedent for a Digital Age”2008 Cornell Law Faculty Publications found in http://scholarship.law.cornell.edu/lsrp_papers.

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72 Leith P. Fellows C. BAILII Legal Education and Open Access to Law European Journal of Law and Technology Vol. 4 No. 1 2013. Retrieved in http://ejlt.org/article/view/209/289. The High Court of Tanzania Commercial Division THE COMMERCIAL DIVISION What it is How it function how you can use it 20011. ASHERRY Magalla “Development of Information and Communications Technology in Tanzania: Discussion on Protection of Software Intellectual Property” 2013 retrieved in https://bagamoyouniversity.academia.edu/AsherryMa galla. Internet Sources Websites http://getrevising.co.uk/forums/topics/what_are_the_a dvantages_and_disadvantages_of_judicial_precedent. http://www.lawcourts.org/LPBR/reviews/duxbury1208.h tm. http://www.sjol.co.uk/issue-3/extra-judicial-reasoning.

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73 http://mobile-dictionary.reverso.net/english- cobuild/digital20world. http://www.pacer.gov/_e_pi_72CPAGE_ID102C7 505795168. http://www.bailii.org/. http://www.safli.org. http://www.ulii.org. http://www.kenyalaw.org.

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