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Citation
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Judgment date
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| August 2023 |
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Court granted extension to file defence where directors’ absence and need to secure counsel constituted good cause.
* Commercial Procedure Rule 20(2) – extension of time to file written statement of defence – requirement to show good cause.
* Good cause – need to account for delay; corporate governance (quorum/board resolution) and securing legal representation can constitute good cause.
* Right to legal representation – legitimate ground for short delay.
* Consideration of prejudice to respondent when granting condonation.
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28 August 2023 |
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A lawful settlement filed under Order XXIII Rule 3 must be recorded and forms the court’s decree, terminating the suit.
* Civil Procedure — Order XXIII Rule 3 — Recording of lawful settlements — Court's duty to record and pass decree in terms of compromise.
* Consent decree — Lawful deed of settlement filed in court becomes the court's decree and disposes of the suit.
* Enforceability — A settlement that adjusts the whole suit is lawful, enforceable and ends proceedings.
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25 August 2023 |
| August 2019 |
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Court allowed late filing of additional documents but limited it to one week before the 14‑day witness‑statement deadline.
Commercial procedure — Pre‑Trial and disclosure — Leave to file additional list of documents after First Pre‑Trial Conference — Rule 49(2) (witness statements) and Rule 48(2) case‑management powers — Overriding objective and equality of arms — Temporal limitation imposed (one week before 14‑day witness‑statement deadline).
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7 August 2019 |
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2 August 2019 |
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The respondent failed to prove contractual interest charges; the applicant repaid principal and titles must be released.
Commercial law – Loans and overdraft – Interest calculation and contractual terms – Burden of proof under Evidence Act s.112 – Repayment of principal – Discharge of mortgage and release of title deeds – Counterclaim for accrued interest dismissed.
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1 August 2019 |
| May 2019 |
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A preliminary objection founded on a repealed or non-existent rule is unsustainable and is dismissed with costs.
* Civil procedure – preliminary objection – objection based on repealed or non-existent statutory provision – objection unsustainable.* Commercial Division – jurisdictional titling of pleadings – pleading title errors may be topographical but objection must rely on existing law.* Interpretation of amendments – amended/redesignated rules displace prior provisions.
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17 May 2019 |
| February 2019 |
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Court ordered Tshs. 10,000,000 security for costs, excluding unquantified general damages from fee calculations.
* Civil procedure – Security for costs – Order XXV Rule 1(1) CPC – Discretion to order security where plaintiff resides out of Tanzania and lacks immovable property. * Advocates’ fees – Computation on liquidated principal only; unquantified general damages excluded from fee base. * Burden on applicant to show sufficient cause; unsupported assertions of complexity insufficient to increase security.
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15 February 2019 |
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Court found a purported land transfer fraudulent, ordered rectification, and held the property not liable to execution.
Execution — Objection to attachment (Order XXI Rules 57–59 CPC) — Claimant must show interest/possession at date of attachment; Burden of proof — Section 112 Evidence Act; Land transfers — requirement for written sale/conveyance; Fraudulent collection/registration of certificate of title; Rectification of land register and cancellation of improperly issued title; Attachment not permissible where transfer is unproved/fraudulent.
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14 February 2019 |
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A stay application under the Arbitration Act must annex the original or certified copy of the arbitration submission; failure is fatal.
* Arbitration law – Rule 8, Arbitration Rules (G.N. No. 427/1957) – mandatory requirement to annex original submission or certified true copy to petition.
* Arbitration – stay of court proceedings under section 6 of the Arbitration Act – Arbitration Rules apply even before an award.
* Civil procedure – non-compliance with mandatory filing requirements – omission to annex certified submission is fatal and warrants striking out with costs.
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14 February 2019 |
| September 2018 |
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Extension application struck out because the affidavit was sworn without authority to represent co‑applicants.
Civil procedure – competence of application – affidavit deposed by one applicant purportedly on behalf of co-applicants without proof of authority – lack of locus standi renders application incompetent; Review versus Rule 75 considerations.
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25 September 2018 |
| October 2017 |
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Discovery application dismissed for failure to prove respondent's possession of relevant, necessary documents.
* Civil procedure – discovery of documents – Order XI Rule 10 CPC – requirement that documents be in possession or power of the party sought to be ordered to produce.* Discovery – relevance and necessity – discoverable documents must be relevant to disposing of the suit or saving costs.* Evidence – certified copies held by an advocate may indicate originals are not in respondent’s possession.* Post-contract forensic report – relevance requires connection to the contractual dispute.
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27 October 2017 |
| September 2017 |
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Extension granted to file High Court objection where applicants alleged being condemned unheard and raised illegality of taxing decision.
Advocates' Remuneration and Taxation of Costs Rules – service of notice of taxation hearing (Rule 9(1)) – allegation of being condemned unheard – extension of time to file objection (Rule 6(1)) – illegality ground (Devram Valambhia principle).
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27 September 2017 |
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Court granted a 10‑day extension to file objections to a Taxing Officer’s award because alleged illegality warranted extension.
* Advocates' Remuneration and Taxation of Costs Rules (GN 515 of 1991) – Rule 5 & Rule 6 – procedure for objections to Taxing Officer and court's power to extend time.
* Extension of time – exercise of discretion – requirement to assign sufficient reasons.
* Illegality in taxation decision – allegation of illegality can justify extension (Valambhia principle).
* Delay and diligence – unexplained delay relevant but may be outweighed by pleaded illegality.
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26 September 2017 |
| May 2017 |
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Instruction fees and several allowances were reduced; total bill taxed at Tshs.9,002,200 and remainder disallowed.
Costs — Taxation of bill of costs — Instruction fees — Application of Advocate Remuneration Order, 2015 (Eleventh Schedule) — Reasonableness and evidence for travel, taxi and meal/accommodation allowances — Disbursements supported by ERV receipts allowed.
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15 May 2017 |
| April 2017 |
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Taxing officer consolidated two bills, allowed 3% instruction fee for the main suit, reduced application fee, and disallowed duplicative attendance charges.
Advocate Remuneration Order 2015 – taxation of costs; instruction fees (3% for contentious claims; fixed allowance for applications); attendance/appearance fees — prevention of duplicative charging where same attendance covers multiple matters; disbursements — requirement of ERV receipts; taxing officer’s discretion under Order 12(1).
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27 April 2017 |
| December 2016 |
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Applicants impleaded as defendants because resolving breaches of underlying contracts is necessary to determine insurer's liability.
Civil procedure — Order 1 Rule 10(2) CPC — Impleadment of parties — Necessary and proper parties — Dominus litis subject to court's discretion — Performance guarantee bonds — Liability contingent on breach of underlying contracts.
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23 December 2016 |
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A Court cannot vacate its Order XXIII Rule 1(3) withdrawal; the proper remedy for alleged error is appeal, revision or review.
Civil Procedure – Order XXIII Rule 1(1),(2) and (3) – Withdrawal of suit – Withdrawal with liberty to institute fresh suit requires satisfaction of Rule 1(2) conditions – Withdrawal without permission (Rule 1(3)) precludes fresh suit – Court cannot set aside its own Order XXIII Rule 1(3) proceedings; remedy is appeal/revision/review.
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15 December 2016 |
| November 2015 |
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Direct appointment of tax consultant proven; plaintiff awarded USD 139,240 plus interest and costs; subcontract allegation unproven.
* Contract – appointment of consultant – documentary and conduct evidence (appointment letter, handing over of accounts) establishes contract formation. * Evidence – burden to prove sub-contract lies on alleging party; retainer agreement with a third party does not prove sub-contract. * Quantum – fee based on percentage of tax savings (10%) upheld as reasonable where services produced measurable benefit. * Remedies – award of principal, commercial interest to judgment, post- judgment court rate interest and costs.
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19 November 2015 |
| October 2015 |
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Borrowers remained in default; bank entitled to contractual interest and recovery; plaintiffs’ claim dismissed, counterclaim granted.
Bank and security – loan and overdraft facilities – contractual penal interest and acceleration clause on default; conditional rescheduling/waiver not effective absent compliance; borrower’s payment of principal does not extinguish accrued interest; counterclaim for outstanding indebtedness upheld.
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23 October 2015 |
| September 2015 |
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A preliminary objection cannot be lawfully filed to preempt another preliminary objection; such filings are struck out with costs.
Civil procedure – preliminary objections – Whether one preliminary objection may be filed against another – Practice prohibited; attempt to preempt a preliminary objection struck out with costs.
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16 September 2015 |
| February 2015 |
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Respondent bank liable for unauthorized withdrawals; applicant awarded principal, general damages, interest and costs.
Banking law – unauthorized debits from customer account – burden shifts to bank to explain withdrawals when account holder denies authorization; Special damages must be specifically pleaded and strictly proved; Ex parte hearing valid where respondent had notice but did not appear; Duty of bank to safeguard customer funds; Interest and costs awards.
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20 February 2015 |
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An application for extension filed under the wrong procedural provision was struck out as incompetent.
Commercial procedure – extension of time to file WSD – Rule 20(2) High Court (Commercial Division) Procedure Rules governs; Civil Procedure Code applies only where lacuna exists; wrong or non-citation of enabling provision is incurably fatal; "any other enabling provisions" phrase cannot save procedural mis-citation; Rule 4/Article 107A(2)(e) do not cure substantive procedural defects; preliminary objection on pure law should have reasonable notice.
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19 February 2015 |
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19 February 2015 |
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Application to extend time to file defence under wrong procedural provision is incompetent and struck out.
Commercial Procedure — Extension of time to file Written Statement of Defence — High Court (Commercial Division) Procedure Rules 2012 (Rule 20(2)) govern procedure — Civil Procedure Code applies only where Rules have lacuna — Wrong or non-citation of enabling provision is incurably fatal — "Any other enabling provisions" phrase cannot cure procedural mis-citation — Article 107A(2)(e)/Rule 4 do not save substantive omission treated as non-technicality.
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19 February 2015 |
| January 2015 |
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Appeal dismissed as time‑barred; extension of time must be sought by application under the Limitation Act.
* Civil procedure – Appeals – Time limitation – Law of Marriage Act s.80(2): 45‑day appeal period to High Court for matrimonial matters.
* Limitation – Exclusion of time for obtaining copies of judgment/decree – Law of Limitation Act s.19(2) does not itself cure late filing in an appeal without an application to enlarge time.
* Limitation – Enlargement of time – Law of Limitation Act s.14(1): court has discretion to extend time for good cause but enlargement must be sought by application.
* Appeal – Procedural requirement – failure to apply for extension renders appeal incurably time‑barred; dismissal under s.3(1) of Law of Limitation Act.
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15 January 2015 |
| December 2014 |
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Application to set aside dismissal for want of prosecution dismissed; non-appearance and informal notice to clerks were insufficient.
* Commercial Division – dismissal for want of prosecution – application to set aside under s.95, Order IX r.(1) CPC and High Court (Commercial Division) Rule 43(2).
* Non-appearance – failure to file agreed skeleton arguments equates to non-appearance and may justify dismissal.
* Procedural notice – informal notice to court clerks is inadequate; formal application or adjournment required.
* Evidence – late-filed affidavit by court clerk expunged as afterthought.
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18 December 2014 |
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11 December 2014 |
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Serving a plaint different from the court record justified striking out the plaint and awarding costs to the defendant.
Civil procedure; pleadings – service of a different plaint than the one on record; Order 6 r.16 CPC – striking out pleadings that prejudice, embarrass or delay a fair trial; Rule 24 High Court (Commercial Division) Procedure Rules – leave to amend; costs against negligent counsel.
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8 December 2014 |
| November 2014 |
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28 November 2014 |
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28 November 2014 |
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28 November 2014 |
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Unproven absence of a defence witness justified striking the witness statement and ordering judgment on plaintiff's evidence.
* Civil procedure – Failure to produce witness – Exceptional circumstances required to avoid striking out witness statement; proof required. * Adjournment – Unproven assertions by counsel (miscommunication, witness on leave) insufficient. * Consequence – Striking out witness statement and entering judgment on plaintiff's evidence.
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24 November 2014 |
| September 2014 |
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Variation claims dismissed; employer justified in withholding retention until defects remedied; limited retention awarded upon remedy.
Contract law — construction contract governed by tender documents and FIDIC short form; variation procedure — early notification, employer approval/determination of value; pre-contract site survey duty of contractor; contractor's failure to prove day-work/variation records; defects-liability period — contractor's duty to remedy defects; employer entitled to withhold final retention until defects remedied; unsubstantiated variation claims dismissed.
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26 September 2014 |
| August 2014 |
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Purchaser's non-payment of the final instalment did not justify defendants' unilateral takeover; court rescinded contract and ordered refund with interest.
• Contract law – Share acquisition agreement – contractual default remedies vs unilateral retaking of management; • Specific performance and rescission – where contract prescribes remedy and breach by seller of management transfer obligations; • Fraud – requirement of active concealment with intent and burden of proof; • Remedies – rescission, repayment, interest and costs.
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22 August 2014 |
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Application to amend witness statements dismissed; witness statements under Commercial Rules are evidence, not pleadings, and cannot be amended.
* Civil procedure – application to amend witness statements – distinction between pleadings and evidence under High Court (Commercial Court) Procedure Rules, 2012. * Order XIII Civil Procedure Code – production of documents and Lists of Additional Documents at first hearing. * Witness statements under Commercial Rules are evidence, not pleadings or affidavits, and do not become part of the record until the witness testifies.
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19 August 2014 |
| June 2014 |
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26 June 2014 |
| April 2014 |
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Failure to state when the cause of action arose renders a plaint incompetent and liable to be struck out.
Civil procedure – Pleadings – Order 7 r.1(e): plaint must state when cause of action arose; failure is fatal. Order 7 r.1(f)/(i): value of subject matter must be pleaded for jurisdiction and fees. Amendment of plaint not permitted to cure defects when objection is taken; preliminary objections preserve the competence of pleadings and enable limitation assessment.
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14 April 2014 |
| October 2013 |
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Failure to state the claim’s pecuniary value is a mandatory defect that renders a plaint fatally defective and liable to be struck out.
Commercial procedure – Order VII Rule 1(i) CPC – Mandatory requirement to state value of subject matter – Pecuniary jurisdiction and court fees – Failure to state value fatal; plaint struck out – Amendment and topping up fees not proper remedy in preliminary objection context.
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25 October 2013 |
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Omission to state the claim’s value is a fatal defect; plaint struck out for violating Order VII Rule 1(i).
Civil Procedure — Order VII Rule 1(i) C.P.C. — mandatory requirement to state value of subject matter for jurisdiction and court fees — failure fatal; amendment under Commercial Division Rules; striking out plaint; underassessment of court fees administrative.
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25 October 2013 |
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Application for interim injunction struck out for relying on inapplicable statutory provisions despite court's residual power to grant relief.
Civil procedure – interlocutory relief – wrong or incomplete citation of statutory provision; applicability of Order XXXVII Rule 1 to post-execution injunctions; scope of sections 68(c) and 95 (Civil Procedure Code); High Court’s power under s.2(2) Judicature Act to grant interim injunctions where Code is silent.
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25 October 2013 |
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Failure to state claim value in plaint is mandatory defect that attracts striking out and costs.
Civil Procedure – Order VII r.1(i) – mandatory requirement to state value of subject‑matter in plaint – necessity for determining pecuniary jurisdiction and court fees; omission fatal and plaint struck out; amendment not available once plaint defective in this mandatory particular.
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25 October 2013 |
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Supplier entitled to unpaid fuel price; invoices and regulated pump prices determine price; special damages unproven.
Sale of goods – price determination under Sale of Goods Act s.10 – pump/invoice prices as course of dealing; admissibility and weight of invoices, delivery cards and cheque deposit slip; uncertainty of price not fatal where regulated prices apply; adverse inference where party fails to call material witness; special damages require strict proof.
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22 October 2013 |
| August 2013 |
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Director’s unilateral refusal to register agreed land transfer breached company interests; exemplary damages, interest and costs awarded.
Company law – enforceability of board resolutions and transfer deeds – land contributed as share consideration; fraud burden on alleging party; unilateral rescission by a director prejudicial to company interests; entitlement to exemplary damages and interest at court rate.
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23 August 2013 |
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Defendants maliciously breached an agreement to transfer land as share capital; company awarded exemplary damages, interest and costs.
* Company law – transfer of land as contribution to share capital – enforceability of board resolutions and transfer deeds; directors’ duties regarding share certificates and registration. * Fraud – burden of proof – allegations of fraud require clear proof; delay in issuing share certificates insufficient. * Breach – unilateral rescission by a director of a formal agreement is wrongful; remedies include exemplary damages, interest and costs. * Damages – special damages must be strictly pleaded and proved; exemplary damages awarded to punish malicious conduct.
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23 August 2013 |
| March 2013 |
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The applicant may recover money mistakenly credited to the respondents' account where respondents acted in bad faith.
* Banking law – payment by mistake of fact – recovery of money paid by mistake; duty of customer to notify bank of unexpected/forged credits; unjust enrichment and restitution; good faith defence and evidential burden (SWIFT/transfer proof).
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21 March 2013 |
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Court orders 10% cash security for costs from non-resident respondent lacking immovable Tanzanian property.
* Civil procedure – Order XXV R.1 CPC – Security for costs – Non-resident plaintiff lacking immovable property – Discretionary remedy in exceptional circumstances; quantum of security; cash as acceptable security.
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19 March 2013 |
| September 2012 |
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Plaintiff failed to prove an alleged oral TZS 45,000,000 loan; suit dismissed, no costs.
Civil procedure – ex parte proof; Contract – oral loan claim – proof on balance of probabilities; Evidence – dishonoured cheque insufficient to establish contract; Failure to call key witness and produce bank records fatal to claim; Demand notice not proved served.
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28 September 2012 |
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Claim for alleged oral TZS 45,000,000 loan dismissed for failure to prove existence of the contract on balance of probabilities.
* Contract — Oral loan — Proof required: witness testimony, documentary corroboration and conduct of parties to establish existence under section 10 Law of Contract Act.* Evidence — Inference under section 122 Evidence Act — Dishonoured cheque insufficient alone to infer existence of oral contract.* Bills of Exchange — Dishonour evidences non-payment but does not itself establish antecedent agreement or terms.* Civil standard — Plaintiff must prove case on balance of probabilities; ex parte proceedings still require adequate proof.
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20 September 2012 |
| April 2012 |
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The first plaintiff lacked locus and was struck out for misjoinder; the second plaintiff’s claim proceeds.
Civil procedure – locus standi – Order III Rules 1 & 2 CPC – misjoinder – Order 1 Rule 9 CPC – expunction of improperly joined plaintiff where separate contractual relationship exists.
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27 April 2012 |
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Whether defects in a supporting affidavit (oath v affirmation, verification source, limitation) are fatal to a security for costs application.
Civil procedure – security for costs (Order XXV r.1(1)) – competency of supporting affidavit – affirmation v. oath – jurat of attestation – Notaries Public and Commissioners for Oaths Act – verification on information supplied by a corporate applicant – limitation inapplicable where statute allows application at any stage of suit.
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24 April 2012 |