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Citation
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Judgment date
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| April 2013 |
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Appeal dismissed: tribunals properly addressed residential licences, building-permit issues and road-compensation dispute between the parties.
Land law – residential licences – recognition of licence as evidence of premises occupation; Building regulation – requirement for building permits and necessary parties in enforcement; Access and compensation – locus visit credibility, unsurveyed land, negotiation for road formation and compensation; Appellate review – no error where lower tribunal's factual findings supported by evidence.
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30 April 2013 |
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30 April 2013 |
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Respondent's default and improperly amended appeal document led to expungement; new issues not raised at trial cannot be heard on appeal.
• Civil procedure – consequences of failing to comply with court-ordered written submissions – treated as failure to defend; court may determine matter on available record. • Pleadings – amended memorandum of appeal must comply with court order; improperly titled or non-compliant documents may be expunged. • Appellate review – issues not raised and decided at trial cannot be introduced on appeal (unless pure points of law). • Evidence – trial tribunal's factual findings on ownership and tenancy upheld.
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30 April 2013 |
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Respondent’s failure to file court‑ordered submissions amounted to failure to defend; court proceeded on appellant’s submissions.
Land appeal procedure – failure to file court‑ordered written submissions – treated as failure to defend – court may determine appeal on appellant's submissions; procedural compliance – distinction between "additional grounds" and an "amended memorandum of appeal"; challenge to execution orders raised after filing appeal.
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30 April 2013 |
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A general objection that parts of a counter-affidavit are argumentative must be particularised or it will be dismissed.
Civil procedure – Affidavits – Affidavit must be confined to facts within deponent's knowledge; no legal argument – Counter-affidavit objections must be particularised – General allegation of being 'argumentative' insufficient – Request to strike out unsupported.
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30 April 2013 |
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Failure to hold an identification parade and lack of corroboration for a retracted cautioned statement rendered the conviction unsafe.
Criminal law – Visual identification – identification parade required where witnesses are strangers and arrest delayed; dock identification unsafe without parade. Evidence – Cautioned statement – admission after inquiry; repudiated confession requires corroboration before supporting conviction. Authorities: Abdallah Bin Wendo; Waziriamani; Musa Elias; Hemed Abdallah.
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29 April 2013 |
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Application for leave for certiorari and mandamus dismissed as time‑barred under s.19(2) of the Law Reform Act.
Administrative law – leave to apply for certiorari and mandamus – limitation under s.19(2) Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap.310 – six‑month period; Civil procedure – failure to prosecute by non‑filing of ordered submissions; Court’s duty to consider unopposed submissions.
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29 April 2013 |
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A fresh suit for custody, maintenance and property after appellate advice was permissible; children's welfare justified award of house, custody and half-salary maintenance.
Family law – divorce – fresh suit following appellate advice – not res judicata. Family law – maintenance – assessment of maintenance for children; award of one-half of payer’s salary. Family law – custody – welfare of children paramount; section 125(2) Law of Marriage Act. Matrimonial property – exclusive occupancy under section 114(1) to protect children’s welfare.
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29 April 2013 |
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The applicant is entitled to division of matrimonial property despite alleged mental illness or limited financial contribution; appeal dismissed.
Family law – divorce – division of matrimonial property – entitlement of a wife to share of matrimonial assets under Law of Marriage Act s.114.* Family law – effect of mental illness on entitlement to distribution of matrimonial assets.* Evidence – appellate review of factual findings – standard of interference with lower courts' findings.* Custody and maintenance – allocation on divorce.* Precedent – application of Bihawa Mohamed v Ally Seif.
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29 April 2013 |
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Appellant’s fence encroached 3.2 feet; tribunal findings upheld and appeal dismissed with costs.
Land law - Boundary disputes; Trespass by encroaching fence; Credibility of evidence and site inspection; Assessors’ opinions accepted on factual boundary determinations.
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29 April 2013 |
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The court upheld that the appellant trespassed 3.2 feet into the respondent's land and dismissed the appeal.
Land law – boundary disputes – trespass – encroachment by boundary wall – site inspection by court and assessors – weight of evidence and confirmation of Tribunal finding.
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29 April 2013 |
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Dismissal for expired speed track was unlawful where the speed track had been validly extended and the magistrate acted suo motu without hearing parties.
Civil procedure – Speed track (Order VIII A CPC) – Extension of scheduling order – Dismissal for expired speed track – Improper suo motu decision by trial magistrate without hearing parties – Revision under Magistrates Courts Act s.44.
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29 April 2013 |
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A jurat lacking the attesting officer’s handwritten name is defective; a rubber stamp cannot cure the defect.
Affidavit jurat – sufficiency of jurat particulars – requirement that attesting officer’s name appear (handwritten) – rubber stamp not part of jurat – defective jurat renders application incompetent.
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25 April 2013 |
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Allegation that court began early implying judicial misconduct requires high proof; restoration refused.
Criminal procedure — restoration of appeal dismissed for want of prosecution; explanation for non-appearance; allegation of judicial misconduct; high standard of proof required (above balance of probabilities); appellate review limited to restoration, not merits of conviction.
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25 April 2013 |
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Wrong citation of the statutory enabling provision rendered the leave application for prerogative orders incompetent and was struck out.
Judicial review – prerogative orders (certiorari) – leave to apply governed by s.19(2)&(3) Cap 310 – wrong citation of enabling provision fatal – s.17(2) Cap 310 applies to substantive relief after leave – s.2(3) JALA and s.95 CPC are general/supplementary – corporate sanction issue raised but not decided.
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23 April 2013 |
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Next friend lacked standing to annul administrator's appointment; eviction orders were consistent and application dismissed.
Probate and administration – intestate estate – appointment and removal of administrator – standing of non-heir/next friend to challenge appointment. Civil procedure – revision – functus officio – consistency of district court orders and validity of subsequent eviction order. Eviction and sale of estate property – distribution of proceeds to heirs; fitness of administrator assessed by recognition of beneficiaries, not personal care.
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23 April 2013 |
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Taxing officer applies 3% statutory instruction fee, allows attendance and disbursements, disallows duplicate instruction claim.
Costs — Bill of costs in Commercial Court — Application of Advocates Remuneration and Taxation of Costs Rules (3% instruction fee) — Allowance for attendance items — Disallowance of duplicate instruction fee for prosecuting bill — Unchallenged items and disbursements taxed as presented.
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23 April 2013 |
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In taxation of costs from execution proceedings, instruction fees were substantially reduced and many items disallowed for excess or lack of support.
Taxation of costs – execution proceedings – instruction fees claimed without receipts – court's discretion under Advocates Remuneration and Taxation of Costs Rules to allow reasonable fees and disallow excessive or unsupported claims. Costs – preparation charges – treated as part of instruction fees and disallowed as separate items. Costs – attendance claims – reduced to fixed modest amount per attendance where excessive or unsupported. Considerations – urgency, pecuniary interest, nature/quantity of labour, length of hearings and research.
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23 April 2013 |
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Reported
Court allowed reference: restored many costs, rejected Taxing Master’s blanket rejection of receipts and raised instruction fees.
Costs — Taxation — Whether client visits to advocate are incidental to suit; admissibility and scrutiny of receipts; effect of silence in court record on attendance; proper basis for assessing instruction fees; no fees for preparing/arguing bill of costs.
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19 April 2013 |
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Taxing Master allowed a bill of costs of Tshs 2,050,000 as reasonable and taxed it in full.
Costs and taxation – Bill of costs – Instruction fee supported by receipt – Reasonableness of attendance fees and disbursements – Taxation proceeded ex parte after service; Advocate Remuneration Rules (Rule 11) relied upon.
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19 April 2013 |
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Bill of costs taxed as presented after receipt evidence and court finding of reasonableness.
Taxation of costs – Bill of costs comprising instruction fees, attendance fees and disbursements – Evidence of payment by receipt – Reasonableness of fees – Proceeding ex parte where respondent fails to appear – Advocates Remuneration and Taxation of Costs Rules, r.11.
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19 April 2013 |
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19 April 2013 |
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High Court stayed execution of ex‑parte eviction pending revision, citing denial of right to be heard and risk of irreparable harm.
Land law – Stay of execution – Ex‑parte eviction decree executed while set‑aside and stay applications pending – Right to be heard and jurisdictional irregularity – Attilio/Ibrahim injunction test applied – Preservation order of industrial premises and machinery – Security deposit unnecessary where alleged arrears disputed.
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19 April 2013 |
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19 April 2013 |
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19 April 2013 |
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Preliminary objections dismissed: board‑resolution issue is factual; plaint adequately alleges conduct justifying piercing the corporate veil.
Civil procedure — preliminary objections — whether absence of board resolution is a point of law or fact; corporate law — lifting corporate veil — adequacy of pleadings alleging fraud by a director to disclose cause of action.
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19 April 2013 |
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Plaintiff failed to prove full unpaid cigarette delivery; unstamped dealer agreement inadmissible—claim dismissed with costs.
Civil procedure — burden of proof — need to call material witnesses; Evidence — admissibility — unstamped instrument inadmissible under Stamp Duty Act; Sales of goods — proof of delivery and payment — weight of tax invoice stamped "paid"; Commercial procedure — irregular acceptance of unsigned cheques and internal negligence; Adverse inference for failure to produce material witnesses.
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19 April 2013 |
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Conviction for rape of a nine-year-old upheld; procedural voir dire lapse immaterial; sentence corrected to mandatory life imprisonment.
Criminal law – Rape of a child under ten – sufficiency of child’s evidence and corroboration by medical and family testimony; admissibility of PF3 tendered by investigator; non-compliance with s.127 Evidence Act – voir dire; sentencing – mandatory life imprisonment under s.131(3) Penal Code.
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18 April 2013 |
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Applicant appealed the wrong High Court decision; Court held no fixed time limit for extension but struck application out as futile.
Appellate procedure – extension of time – no fixed limitation period for applying for extension of time to give notice of intention to appeal or to apply for leave to appeal to Court of Appeal; Appellate Jurisdiction Act s.11(1) and Court of Appeal Rules govern; Law of Limitation Act excluded – appeals to Court of Appeal; target of appeal – appeal must be directed at the decision that determines the contested issue (award quantum) not a subsequent execution order; counsel’s submissions do not replace sworn counter-affidavit.
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18 April 2013 |
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Bank liable to applicant for unauthorized debit from fraudulent transfer; collecting bank not liable.
Banking law – unauthorised debit – forged instruction (Form E17) – TISS Order received – bank liable for wrongful transfer; collecting bank not liable absent duty or proof of fraud; requirements for proof of fraud and burden of calling material witnesses.
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18 April 2013 |
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Appeals from the District Land and Housing Tribunal to the High Court must be filed within 45 days or are time-barred.
Land Disputes Courts Act s.52(2) – where silent on limitation, other laws may apply Law of Limitation Act – item 2, Part II of schedule prescribes 45 days for appeals from laws other than the Civil Procedure Code Appeal from District Land and Housing Tribunal – time bar – preliminary objection sustains dismissal with costs
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18 April 2013 |
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Alternative conviction was irregular; substituted offence was not minor/cognate and acquittal cannot be appealed via replying submissions.
Criminal procedure – alternative verdicts – sections 300–307 Criminal Procedure Act (Cap. 20) – minor and cognate offence requirement; Penal Code s.312(1)(b) (possession of property reasonably suspected to be stolen) vs s.296(1) (breaking and stealing) – DPP appeal procedure and limits (ss.377–381 Cap.20) – prosecution cannot appeal acquittal via replying submissions.
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16 April 2013 |
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Primary Court properly heard a land dispute because the new land tribunals and prohibitions were not yet in force when suit was filed.
Land law – jurisdiction – interplay between Land Act, Village Land Act and ordinary courts; Land Disputes Courts Act – effect of section 4(1) and timing of commencement on jurisdiction; Jurisdictional consequence of non-operational Village Land Councils and District Land and Housing Tribunals; Trustees Incorporation Act s.8 – documentary requirements for trustee plaints (no such requirement found).
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16 April 2013 |
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16 April 2013 |
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High Court ordered the District Court to rehear the appellant's criminal appeal de novo because new evidence had emerged.
Criminal law – appeal – new evidence discovered after trial – filing of new evidence before a different magistrate of competent jurisdiction – remedy of rehearing appeal de novo in District Court.
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15 April 2013 |
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Applicant granted bail where only mentioned by co-accused and prosecution lacked chemist report and value certificate.
Criminal law — Bail pending trial — S.148(5)(a)(iii) Criminal Procedure Act and S.27(1)(b) Drugs Act — Effect of Government Chief Chemist report and Commissioner’s certificate as prerequisite to deny bail — Uncorroborated mention by co-accused insufficient to oust court’s discretion to grant bail.
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15 April 2013 |
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An accused mentioned by a co-accused cannot be denied bail absent chemist and value certification.
Criminal Procedure Act s.148(3) & s.148(5)(a)(iii) – bail pending trial – statutory bar contingent on certification of drug type and value.* Drugs Act s.27(1)(b) – requirement of Commissioner’s certificate where value exceeds TSh 10,000,000.* Evidentiary requirement – Government Chemist report and corroboration required before denying bail where accused is only mentioned by co-accused.* Procedural error – subordinate court’s denial of bail quashed where statutory prerequisites absent.
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15 April 2013 |
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Oral supply contract evidenced by L.P.Os; unilateral specification change and rejection breached contract; damages partially reduced.
Contract formation — oral agreement and Local Purchase Orders — part performance; Evidence — burden and shifting; Rejection of goods — change of specification and notice; Damages — special vs general, proof required; Jurisdiction — pecuniary jurisdiction determined from plaint.
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15 April 2013 |
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Court refused stay for lack of irreparable loss but granted leave to appeal on the legality of foreign ownership of land.
Civil procedure – stay of execution pending appeal – requirement of irreparable loss not adequately shown; damages an adequate remedy. Civil procedure – leave to appeal – grant only where prima facie/legal point merits appellate consideration. Company law – winding up – property ownership dispute does not automatically stay execution. Property law – issue identified: legality of land ownership by a foreigner in Tanzania. Ex parte hearing; no costs ordered.
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15 April 2013 |
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Applicants' failure to file court-ordered written submissions amounted to failure to prosecute; application dismissed with costs.
Civil procedure – failure to prosecute – failure to file court-ordered written submissions – application for extension of time dismissed – main application dismissed for want of prosecution – costs awarded.
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15 April 2013 |
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Failure to file court-ordered written submissions amounts to failure to prosecute and warrants dismissal with costs.
Civil procedure – failure to prosecute – non-compliance with court-ordered timetable for written submissions – failure to prosecute warrants dismissal; application for extension of time to file submissions – dismissal renders main application unprosecuted; stay of execution/extension to lodge appeal not determined on merits due to non-prosecution.
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15 April 2013 |
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The respondent lacked locus standi to sue over deceased's land without appointment as estate administrator.
Land law – Capacity to sue – Locus standi – Claimant seeking recovery of deceased's land must be appointed administrator of the estate; absence of appointment defeats action.
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12 April 2013 |
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Respondent lacked locus standi to sue over land of a deceased absent appointment as estate administrator.
Land law — title and recovery of land held by deceased — locus standi — requirement of appointment as administrator to sue on deceased’s estate; Limitation Act (12-year period) and procedural irregularities in Tribunal proceedings.
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12 April 2013 |
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The appellant’s appeal was dismissed for failing to attach the decree as required by Order XXXIX rule 1.
Civil procedure – Appeal requirements – Order XXXIX rule 1, Civil Procedure Code (CAP.33 R.E.2002) – mandatory requirement to attach the decree to the memorandum of appeal – failure to comply warrants dismissal. Precedent – High Court bound by Court of Appeal authority on procedural non-compliance.
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12 April 2013 |
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An appeal lacking the decree required by Order XXXIX r.1 CPC is improperly before the court and is dismissed.
Civil procedure — Appeal — Memorandum of appeal must be accompanied by the decree — Order XXXIX r.1, CPC — Non‑compliance renders appeal improperly before court — Appeal liable to dismissal (Mariam Abdallah Fundi v. Kassim Abdallah Farsi).
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12 April 2013 |
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Speed Track time runs from filing; scheduling non-compliance sustains objection, but plaintiffs allowed to rectify under court’s discretion.
Civil procedure — Order VIIIA (scheduling) — Speed Tracks — Time runs from commencement of suit, not from assignment date; scheduling orders mandatory. Civil procedure — Preliminary objection — Court must not pre-empt objection by exercising Order VIIIA Rule 4 powers to amend/extend scheduling order. Civil procedure — Section 95 CPC — Court’s discretion to allow rectification rather than striking out where no prejudice shown. Constitutional argument — Article 107A(2)(e) not a substitute for compliance with clear procedural rules.
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11 April 2013 |
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Pre-trial speed-track time runs from institution of suit; non-compliance renders the suit improperly before court, but relief to regularize allowed.
Civil Procedure — Order VIIIA scheduling (speed tracks) — time runs from commencement of suit, not from date of assignment. Non-compliance with scheduling orders — mandatory adherence and competency of suit. Court powers — Section 95 CPC discretion to relieve procedural defects; Order VIIIA Rule 4 cannot be used to pre-empt a pending preliminary objection. Constitutional arguments about procedural technicalities — not a substitute for complying with clear statutory requirements.
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11 April 2013 |
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Appeals from Primary Courts are governed by G.N. No.312/1964, not the Civil Procedure Code; erroneous dismissals set aside.
Civil procedure – Appeals originating in Primary Courts – Incorrect application of Civil Procedure Code (CAP.33) – Applicable law: Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. No.312/1964 – Dismissal governed by Rule 13(2) – Setting aside erroneous dismissal orders and remittal for proper proceedings.
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11 April 2013 |
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Whether respondents’ conduct was unfairly prejudicial and whether an administrator should be appointed to rescue the company.
Companies Act – unfairly prejudicial conduct – minority protection under s.233; interim administrative orders under ss.247–248; appointment/reappointment of administrator to salvage company; contested share transfer and capital injection obligations.
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11 April 2013 |
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Ward Tribunal was improperly constituted (insufficient women members); its proceedings and the District Tribunal’s decision are nullities.
Land law – Ward Tribunal composition – Section 11 Land Disputes Courts Act – requirement of 4–8 members including three women – failure to meet composition requirement renders proceedings and judgment a nullity; appeal from nullity vitiates District Land and Housing Tribunal decision.
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11 April 2013 |