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Citation
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Judgment date
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| December 2003 |
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Court allowed a taxation reference, finding the Taxing Master failed to consider all statutory factors and substituted a higher instruction fee.
Taxation of costs – instruction fees – Schedule XI(j) of GN 515/1991 – proviso factors: nature and importance, amount involved, interest of parties, conduct of proceedings. Discretion of Taxing Master – appellate interference where relevant factors not considered. Reasonableness of claimed fees – manifestly excessive claims may be rejected but taxation must reflect all statutory considerations.
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30 December 2003 |
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Whether the Taxing Master properly considered all discretionary factors when fixing an advocate's instruction fee.
Taxation of costs — Advocates' Remuneration and Taxation of Costs Rules (GN 515/1991) — Schedule XI(j) proviso — factors for assessing instruction fees (nature and importance, amount involved, interest of parties, conduct, time and effort) — proper scope of Taxing Master's discretion — appellate interference on reference under Rule 5.
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30 December 2003 |
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A creditor successfully petitioned to wind up a company after a consent judgment remained unsatisfied.
Companies — Winding up — Creditor’s petition under s.167(e) and s.168(b) where a consent decree remains partly unsatisfied — company unable to pay debts — ex parte proceedings following service — appointment of liquidator and costs.
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23 December 2003 |
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Minority shareholder failed to prove fraud or just and equitable grounds; winding up denied and petition dismissed with costs.
Companies law – winding up under sections 167 & 169 – just and equitable test; burden to prove fraud; corporate acts validated against Memorandum and Articles; share allotment and transfer procedures; minority shareholder remedy — buy‑out versus winding up.
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22 December 2003 |
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Commercial Division barred from hearing a subsequently filed identical commercial suit; suit struck out with costs.
Commercial Division jurisdiction – Order IV r.1(3) CPC – lis pendens: suit instituted subsequently in Commercial Division where identical commercial matter pending elsewhere barred – summary procedure/leave to appear – striking out of improperly instituted suit.
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18 December 2003 |
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Bank proved overdraft debt; bank’s misconduct caused defendant loss and defendant awarded damages; mutual set‑off and sale of mortgages permitted.
Banking law – overdraft facility – existence and terms; borrower default; bank’s breach in handling import documentation and letters of credit; counterclaim for loss of contract and damages; assessment of interest and set‑off; foreclosure/sale of mortgaged properties.
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17 December 2003 |
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Applicant failed to prove title to attached bakery assets; inadmissible documents and lessee’s ostensible authority warranted dismissal.
Civil Procedure – Attachment under Order XXI Rule 57 – necessity to prove title at time of attachment. Evidence – Admissibility – uncertified public documents, unstamped instruments (Stamp Duty Act, 1972), and improper notarial attestation. Agency/Ostensible authority – lessee/operator of business (including between spouses) may bind business assets to creditors. Execution – third parties entitled to rely on apparent proprietor; internal spousal arrangements do not defeat execution against business assets.
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12 December 2003 |
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11 December 2003 |
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5 December 2003 |
| November 2003 |
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Whether alleged affidavit defects and incorrect statutory citations invalidate a contempt application or are merits issues.
Contempt proceedings — preliminary objections — adequacy of affidavit (source disclosure) — cross-examination as remedy; incorrect or irrelevant statutory citations — mis-citation not fatal; s.68 CPC inapplicable; Order 43 Rule 2, Order 21 Rule 35 CPC and s.95 CPC considered; merits vs preliminary objection distinction.
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20 November 2003 |
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Plaintiff who honoured a guarantee for the defendant is entitled to reimbursement of USD 64,000, interest and costs.
Surety bonds – guarantee and counter-guarantee – default by insured agent – liability of guarantor to reimburse insurer who honoured bond; ex parte proof; award of pre- and post-judgment interest and costs.
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18 November 2003 |
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The court held that service via a family member is valid only if the family member resides with the defendant and granted retrospective extension to file defence.
Civil procedure – service of process – O.V. Rule 15 CPC (as amended GN 508 of 1991) – service on an adult family member requires that the family member reside with the defendant. Evidence – burden to prove valid service – need for affidavit of process server or independent witness; mere assertion of service at a given address insufficient. Relief – court may grant retrospective extension of time to file defence to cure procedural defects and avoid undue technicality.
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17 November 2003 |
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Applicant’s belated, inconsistent affidavits and late caveat defeated her claim to prevent sale of alleged matrimonial property.
Execution and sale of property – claim of matrimonial/home immunity from attachment – requirement of credible, timely evidence to restrain execution. Civil procedure – stay of execution – effect of prior applications and notices of appeal on jurisdiction and timeliness. Evidence – material contradictions in affidavits and late caveat undermine applicant's credibility and justify dismissal.
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13 November 2003 |
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Supplier proved outstanding balance for fuel; purchaser failed to prove payments; court awarded principal, interest and costs.
Commercial law – sale and supply of petroleum products – invoices and transporter documents as proof of delivery; burden of proof – once supplier establishes delivery and non-payment, onus shifts to purchaser to prove payment or cancellation; account reconciliation and documentary proof; award of principal, contractual interest and post-judgment interest; general damages dismissed.
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13 November 2003 |
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An incidental commercial interest is insufficient to justify joinder under Order 1, Rule 10(2) CPC.
Civil procedure – Order 1, Rule 10(2) CPC; joinder of parties; necessary vs proper parties; enforceable legal right required; incidental commercial interest insufficient.
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6 November 2003 |
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Prospecting licence holder granted six‑month interim eviction and injunction against trespass due to ongoing irreparable loss.
Prospecting licence – temporary injunction and eviction – prima facie case, irreparable harm and balance of convenience – admissions by some defendants and non‑appearance by others – six‑month interim relief.
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4 November 2003 |
| October 2003 |
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31 October 2003 |
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Applicant entitled to reimbursement after forged-cheque fraud; respondent had knowledge and must pay sum with interest and costs.
Commercial law – cheque fraud – forged signatures – forensic document examination confirming forgery. Burden of proof – civil standard and shifting burden where plaintiff establishes primary case. Evidence – adverse inference from failure to call material witnesses or produce documents. Remedies – restitution, pre-judgment and post-judgment interest, and costs.
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20 October 2003 |
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20 October 2003 |
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The defendant may amend defence to seek nullification without counter-claim; court questions jurisdiction due to pending lower-court proceedings.
Civil procedure – Amendment of written statement of defence – adding prayers for nullification without separate counter-claim permissible where relief would be determined by plaintiff’s primary claim. Civil procedure – Lis pendens/jurisdiction – Order IV r.3 CPC (as amended) and s.8 CPC bar proceedings where same matter is pending in another competent court; parties to file submissions on whether High Court is properly seized.
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20 October 2003 |
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20 October 2003 |
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20 October 2003 |
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Applicant proved supply of cement; court awarded shs.5,544,000 plus interest (23% pre-judgment, 7% post-judgment) and costs.
Contract/sale of goods – proof of delivery by invoices, internal sales orders and weighbridge tickets; credibility of oral evidence and adverse inference for failure to call material witness. Authority to bind company – managing director's handwriting and conduct admissible; contradictions in defendant's witness undermined denial of order. Interest – court discretion to fix a reasonable pre-judgment rate where claimed rate is unsupported; post-judgment interest fixed until payment. Costs – successful plaintiff awarded costs.
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2 October 2003 |
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2 October 2003 |
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Applicant failed to prove disputed overdraft interest; court awarded principal, contractual and decretal interest and ordered sale on default.
Commercial law – Bank overdraft – Recovery of principal and interest – Burden of proof on bank to prove interest computation – Bank statements and computer-generated interest reports – Judgment on admission and subsequent determination of contested interest – Enforcement by sale and possession of mortgaged property.
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1 October 2003 |
| September 2003 |
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30 September 2003 |
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The respondent's contradictory defence was struck out and the respondent's counterclaim dismissed as time‑barred.
Civil procedure – Pleadings – Order VI r.3 – pleadings must state concise material facts, not evidence or argument – defective and contradictory defence may be struck out as incurably defective. Civil procedure – Striking out – Order VI r.16 – embarrassing, contradictory or irrelevant pleadings liable to be struck out. Limitation – Contracts – Law of Limitation Act, 1971 (First Schedule item 7) – six‑year limitation period; cause of action accrues on date of wrongful non‑disbursement (May 1994) making counterclaim time‑barred.
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29 September 2003 |
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Defence struck out as incurably defective; counterclaim dismissed as time‑barred under the six‑year contractual limitation.
Pleadings — written statement of defence — must contain concise material facts only; evidence and legal conclusions in pleadings render them defective (Order VI r.3). Pleadings which intermix contradictory defences may be struck out as embarrassing and incurably defective. Limitation — cause of action accrual for contract counterclaim — date of final failed disbursement (May 1994); six‑year limitation under Law of Limitation Act, 1971 (Schedule item 7) — counterclaim filed after expiry is time‑barred.
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26 September 2003 |
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The respondent bank lawfully complied with garnishee orders; the applicant's claim for wrongful debit is dismissed with costs.
Garnishee orders – garnishee nisi and absolute – bank's duty to notify customer but not to question validity; upon garnishee absolute bank must pay; Order XXI, Rule 1 CPC permits payment to decree-holder; allegation of forged order must be proved; claim premature where underlying proceedings remain pending.
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22 September 2003 |
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A bank complying with a valid garnishee absolute is not liable for paying the decree-holder; claim dismissed.
Civil procedure – garnishee orders (nisi and absolute) – banks’ duties to notify customers and to comply with absolute orders; Evidence – allegation of forgery requires proof; Banks are not obliged to investigate court orders’ validity beyond verifying issuance; O. XXI r.1(1)(c) CPC – payment to decree-holder lawful.
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22 September 2003 |
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A specified public corporation under PSRC receivership cannot be subjected to a private winding-up petition; petition dismissed with costs.
• Companies — Winding-up — Verification of petition — Rule 29 Winding Up Rules 1929 — Curable formal defect. • Public Corporations Act — Specification — Effect of specification: statutory receivership by PSRC equates to receiving order, precluding private winding-up petitions. • Locus standi — Corporate formation and formalities required to prove creditor status and standing.
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19 September 2003 |
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11 September 2003 |
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The court may grant interlocutory injunctions, including against the government, before a main suit is instituted where justice requires.
• Civil procedure – interim injunctions before institution of suit (Mareva-type interlocutory relief)
• Inherent jurisdiction – Judicature and Application of Laws Ordinance and s.95 CPC permitting intervention to prevent injustice or abuse of process
• Government proceedings – injunctions available against the State/Attorney General where prima facie case shown; statutory provisions do not bar such relief absolutely
• Relief to be granted sparingly and with caution to prevent misuse
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2 September 2003 |
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Attachment set aside because the seized ginnery was not owned by the judgment-debtor.
Execution – attachment – ownership versus mere possession; Order XXI r.59 CPC – release where attached property not judgment-debtor's; effect of Government Notice No.119 (Tanzania Cotton Marketing Board Transfer of Assets) on asset vesting; attachment set aside; costs awarded to decree-holder.
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1 September 2003 |
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Attachment must be lifted where the attached property is not legally owned by the judgment-debtor.
Execution and attachment – ownership v. possession; Order XXI, Rule 59 CPC – release of property not owned by judgment-debtor; effect of Government Notice vesting assets.
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1 September 2003 |
| August 2003 |
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Stay to arbitration refused where arbitration clause bound only some parties and multiplicity/conflict risk and other factors justified refusal.
Arbitration — stay of court proceedings under Arbitration Ordinance (Cap 15) — scope of arbitration clause — binding effect on non‑signatories — disputes arising from debentures and mortgages outside arbitration clause — risk of multiplicity and inconsistent findings — procedural compliance vs. substantive reasons to refuse stay.
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27 August 2003 |
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26 August 2003 |
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20 August 2003 |
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A non-party may seek joinder under O.1 r10(2) CPC, but joinder was refused where the applicant was only a proper, not necessary, party.
Civil Procedure — Order 1, Rule 10(2) CPC — joinder of parties — third-party or court-initiated impleadment — necessary party vs proper party — discretion to add parties — late application and abuse of process — third-party procedure alternative.
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15 August 2003 |
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Summary judgment cannot support an award of general damages based on facts not pleaded; such claims require an ordinary suit.
Civil Procedure – Summary suit (Order XXXV) – limits of relief in summary proceedings – assessment of general damages not permissible where not pleaded or tried. Pleadings – parties bound by pleadings – prayer without supporting averments insufficient for damages. Evidence – affidavit adducing new factual matters cannot substitute for pleaded facts in summary judgment proceedings. Procedure – remedy for general damages is ordinarily an ordinary suit, not a summary suit.
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14 August 2003 |
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Court grants rectification of company share register under Companies Ordinance after applicant corrected affidavit errors.
Company law – rectification of register of members – incorrect entries and omissions – Companies Ordinance (Cap 212) s.101 – court power to order rectification and award damages; Procedural correction – acceptance of supplementary affidavit and corrected board resolution to cure errors in original application.
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13 August 2003 |
| July 2003 |
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The applicant entitled to reimbursement and monetary compensation for non‑allotment of agreed shares and non‑employment of assets.
Contract/Equity – agreement to allot shares in lieu of remuneration; enforcement and alternative compensation Evidence – credibility of witnesses; parties bound by pleadings and admissions Valuation – appointment of independent valuer; Opportunity‑Cost Method for lost use of operating assets Remedies – monetary reimbursement for expenditures and alternative damages for non‑employment of assets; pre‑ and post‑judgment interest Procedure – formal demand notice not required in these circumstances
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29 July 2003 |
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High Court has jurisdiction over bankruptcy-provable claims despite magistrates’ pecuniary threshold and CPC restrictions.
Bankruptcy jurisdiction – section 97 Bankruptcy Ordinance – High Court jurisdiction; Provable debts in bankruptcy – section 35(3) – obligations incurred before receiving order; Pecuniary jurisdiction – effect of Magistrates’ Court Act (Act 25/2002) and Order IV R1(3),(4) CPC; Accrual of cause of action and limitation – certificate of completion presented after receiving order; Suits against Specified Public Corporations – effect of receiving/specification order.
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22 July 2003 |
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Application dismissed where applicant admitted rent arrears and raised no triable issue; plaintiff awarded judgment and costs.
Commercial law — rent arrears; admission of debt undermining defence — failure to raise triable issue in affidavit — denial of opportunity to pay not a defence — costs awarded.
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21 July 2003 |
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Extension of time to file leave to appear denied due to failure to comply with court orders; summary judgment entered.
• Civil procedure – extension of time – application for leave to appear and defend – failure to comply with court-ordered filing timetable. • Evidence – affidavit must show satisfactory cause for delay – conflicting dates and inadequate explanation insufficient. • Summary judgment – Order XXXV Rule 2(2)(a) CPC – appropriate where defendant fails to show good cause for delay.
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18 July 2003 |
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Applicant's delay and counsel's misplaced file excuse insufficient; extension refused and summary judgment entered for respondent.
Civil procedure – extension of time – failure to comply with court-ordered timelines – misplacement of file in counsel’s chambers not sufficient excuse – adequacy of affidavit explanation – summary judgment under Order XXXV Rule 2(2)(a) CPC.
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16 July 2003 |
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15 July 2003 |
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Dispute over termination and removal as signatory was an employment matter, not within Commercial Division jurisdiction.
Commercial Division jurisdiction — definition of 'commercial case' under High Court Registries Rules — disputes arising from termination of employment and removal as signatory are employment matters — alleged irregularities in convening board meetings do not automatically render a dispute commercial.
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10 July 2003 |
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10 July 2003 |
| June 2003 |
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24 June 2003 |