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Citation
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Judgment date
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| December 2010 |
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28 December 2010 |
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Court dismissed defendant’s res sub judice and abuse-of-process objections; no identity of issues, suit proceeds.
Civil Procedure – Res sub judice (s.8 CPC) – requirement of direct and substantial identity of issues; enforcement of guarantee vs separate claims; abuse of process – preliminary objection must be a pure point of law (Mukisa test); fraud and forum shopping not established.
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21 December 2010 |
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Enlargement of time under section 93 requires sufficient proof of good cause; unproven bereavement is insufficient.
Civil Procedure – section 93 CPC – enlargement of time – discretion requires sufficient reasons/good cause.* Proof required for bereavement excuse – affidavit or documentary evidence (e.g., death certificate) necessary.* Procedural consequence – failure to file submissions as ordered amounts to failure to appear/prosecute and can justify dismissal.* Court may proceed to hear main application where extension is refused.
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20 December 2010 |
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Bank breached banker–customer relationship by refusing a valid board resolution; title deed withheld but damages unproven.
Company law – validity of board resolution as mandate to bank; Banker–customer relationship – duty to act on valid customer instructions; Freezing accounts – when unjustified; Security return – certificate of title after loan repayment; Assessment of damages – necessity of trading records and financial evidence.
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20 December 2010 |
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20 December 2010 |
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Plaintiff awarded Tshs.32,000,000 and interest after seller failed to refund under an agreement to discharge sale obligations.
Contract law – Sale of goods – Evidence of sale (written sale agreement, bank receipt, shipping and inspection documents) establishes purchase and payment. Contract discharge – Agreement to discharge obligations – failure by seller to perform agreed refund obliges seller to repay agreed sum. Civil procedure – substituted service and ex parte proof where defendants cannot be served – judgment may be entered on evidence adduced
Remedies – contractual refund and contractual/ statutory interest; costs awarded to successful plaintiff
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15 December 2010 |
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A preliminary objection on lack of locus standi cannot succeed where factual issues require evidence at trial.
Civil procedure – preliminary objection – locus standi – where objection raises mixed questions of fact and law it cannot be decided without evidence at trial – Mukisa Biscuits principle applies.* Lease and commercial relationship – alleged obligations to pay taxes – factual proof required to establish interest or rights of non-signatory party.* Authorities – Mukisa Biscuits Manufacturing Co. Ltd.; Bikubwa Ali v Sultan Mohamed Zahran; locus standi governed by common law (Rujuna Shubi Ballonzi)
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14 December 2010 |
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A preliminary objection denying locus standi was dismissed because the issue raised factual questions requiring evidence at trial.
Civil procedure – Preliminary objection – Locus standi – Where locus depends on factual involvement it is a matter for trial; preliminary objections should raise pure points of law only; Mukisa Biscuits principle applies.
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14 December 2010 |
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Execution allowed to proceed subject to a prior registered debenture charge; perpetual injunction refused.
Civil procedure – Order XXI Rules 57, 58, 59, 61 – objection to attachment by third‑party secured creditor – court’s investigative powers and discretion to continue attachment subject to prior charge. Company/secured transactions – debenture (fixed and floating charge) – registration under Companies Act and stamp duty issues – rescheduling vs. creation of new charge
Remedies – interplay between Order XXI objection proceedings and remedies under Companies Act (appointment of receiver/winding up). Property law – reservation of title prevents charged asset being validly charged by debtor
Execution – garnishee compliance and alleged contempt
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13 December 2010 |
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8 December 2010 |
| November 2010 |
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Section 7 disqualifies the specific commissioner-witness, not other advocates in the same firm; numeric errors do not defeat a cause of action.
Notary Public/Commissioner for Oaths – s.7 interpretation – disqualification limited to the particular commissioner who witnessed/acted; Advocate conflict of interest – firm colleagues not automatically barred; Pleadings – numerical discrepancies do not necessarily deprive a plaint of cause of action; Order VII Rule 11 – striking out reserved for cases with no cause of action, not factual disputes.
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26 November 2010 |
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16 November 2010 |
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Court dismissed objections: written extension application under s.14(1)/s.93 was proper, not frivolous, and delay to be considered on merits.
Civil procedure – Extension of time – Section 14(1) Law of Limitation Act and section 93 Civil Procedure Code – Order XLIII Rule 2 (chamber summons and affidavit) – refusal of oral application does not bar written application; Frivolous/vexatious proceedings – test for abuse of process; Time‑bar – s.14(1) allows post‑expiry application; High Court’s inability to revise its own interlocutory decision.
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16 November 2010 |
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11 November 2010 |
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10 November 2010 |
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A consent settlement and court decree precluded the receiver from obtaining release of attached machinery; unlisted assets not charged.
Commercial law – attachment before judgment vs. secured creditor’s debenture – priority of interests and effect of court attachment; Civil procedure – consent settlement recorded under Order XXIII Rule 3 resulting in decree – preclusive effect on subsequent applications; Security documents – assets not listed in debenture schedules are not automatically charged.
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10 November 2010 |
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Review application dismissed: review limited to errors apparent on record; alleged procedural defects and fraud require fuller inquiry or appeal.
Civil procedure — Review jurisdiction under Order XLII r.1 — Scope limited to errors apparent on face of record; not an appeal in disguise; error must be self‑evident. Default judgment — grounds for review: pending application, premature judgment, lack of proof of service, fraud allegations — issues of timing, service and fraud requiring detailed inquiry are not ordinarily correctable by review. Conflict of representation/ethical concerns — may require separate forum or fuller inquiry
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2 November 2010 |
| October 2010 |
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Court may determine pending applications and amend or withhold pronouncement of judgment before formal delivery.
Civil Procedure — inherent powers s.95 CPC; amendment/correction of judgments s.96 CPC; successor judge pronouncing predecessor's judgment (Order XX Rule 2); functus officio principle; leave to file rejoinder; consolidation and hearing of preliminary objections.
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29 October 2010 |
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Plaint dismissed: plaint failed to plead operative facts or show entitlement to sue agent under the bill of lading.
Civil procedure – Order VII Rule 1(e) & Rule 11(f) – requirement to plead facts constituting cause of action. Bills of lading – who may sue – holder/endorsee or party to contract; agent not a party
Agency – limits of agent liability for principal’s contract of carriage. Presentation of original bill of lading and issuance of delivery order as preconditions to claim
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28 October 2010 |
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27 October 2010 |
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A Speed Track II case must finish within 12 months; non-compliance without a Rule 4 departure led to striking out with costs.
Civil procedure – Order VIIIA CPC – Speed Track II – twelve-month time limit from commencement of suit; meaning of commencement (presentation of plaint)
Order VIIIA Rule 4 – departure from scheduling order permitted only if necessary in interest of justice
Order VIIIA Rule 5 – powers to sanction defaulting party, including striking out proceedings. Adjournment/absence of counsel does not substitute for a Rule 4 application to extend schedule
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21 October 2010 |
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The applicant’s execution allowed; guarantors liable and fraud allegations at execution stage unproven.
Execution of decree – Order XXI Rule 21(1) – obligation to show cause – failure to satisfy court requires execution. Guarantors’ liability – mortgage and guarantee enforceable; defects in some securities do not vitiate entire security. Fraud allegations at execution stage – treated as afterthought; burden to strictly prove lies on those alleging fraud
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18 October 2010 |
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7 October 2010 |
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Court struck out commercial suit for want of prosecution after repeated adjournments and inordinate delay.
Commercial procedure — case management — repeated adjournments; want of prosecution — striking out suit; exercise of inherent jurisdiction; award of costs.
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5 October 2010 |
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Invalidly dated decree and non-joinder of Attorney General rendered the execution application incompetent, so it was struck out.
Civil procedure — Decree must bear date of judgment (Order XX r.7 Civil Procedure Code); invalidly dated decree is unenforceable — Government proceedings — Tanzania Revenue Authority treated as government department (s.29 TRA Act) — suits against government to be instituted by/against Attorney General (s.10 Government Proceedings Act) — non-joinder of Attorney General renders proceedings incompetent.
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5 October 2010 |
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Failure to seek timely departure or extension of a Speed Track III scheduling order warranted striking out of the suit.
Civil procedure — Scheduling orders — Speed Track III (14‑month life span) — When the life span runs and consequences of expiry — Rule 4, Order VIII A: prohibition on departures/amendments without court satisfaction and costs — Failure to seek timely extension or departure warrants striking out.
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4 October 2010 |
| September 2010 |
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30 September 2010 |
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Plaintiff awarded repayment and interest after supplier's breach of supply-and-installation contract; general damages not proven.
Contract law – existence and terms of written supply-and-installation contract dated 1 February 2005 – performance period eight weeks. Breach of contract – failure to deliver, install, hand over, provide warranties/spare parts and training despite payment
Remedies – restitution/repayment of amounts paid where services not rendered; interest and costs awarded
Damages – general damages require particularized proof; mere assertions of lost revenue are insufficient
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24 September 2010 |
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Plaintiff recovered advance payments after contractor’s breach, but failed to prove general damages.
Contract law – supply and installation – breach for non-performance after receiving advances; recovery of advance payments; insufficiency of evidence for general damages; substituted service and ex parte proceedings allowed; interest awarded from filing and post-judgment.
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24 September 2010 |
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23 September 2010 |
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23 September 2010 |
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21 September 2010 |
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A petition under Companies Act s.233(1) is treated as a civil suit for limitation; continuing wrongs revive limitation; objections dismissed.
Companies Act s.233(1) – "application to the court by petition" treated as civil suit for limitation; Law of Limitation Act s.7 – continuing wrongs restart limitation; Part I Item 24 – six‑year limitation applies; jurisdiction – internal company management disputes for Commercial Division; Order VI Rule 7 – new matters in pleadings to be addressed on merits, not by preliminary expungement.
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21 September 2010 |
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21 September 2010 |
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Court allowed amendment to correct a slip in the defence, permitting departure from the scheduling order in the interests of justice.
Civil procedure – Amendment of pleadings – Whether leave to amend may be granted to correct a slip of the pen – Section 97 and Order VIII A Rule 4 Civil Procedure Code permit amendments in the interests of justice. Civil procedure – Scheduling orders – Departure from scheduling order permissible to correct pleadings and determine real issues
Pleadings – Clerical error/slip of the pen – amendment to correct obvious mistake
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20 September 2010 |
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Preliminary objections raising factual disputes (missing documents, limitation by continuous breach) were dismissed as incompetent.
Civil procedure – preliminary objections – must be pure points of law or clearly arise from pleadings; factual disputes (absence of documents, continuous breach, limitation) cannot be decided as preliminary objections; pleading of unpaid loan suffices to disclose cause of action.
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16 September 2010 |
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Court granted extension to file appeal after court-issued defective drawn order caused a defective Record of Appeal.
Appeals — Extension of time under s.11 Appellate Jurisdiction Act — 'Sufficient reason' as factual enquiry — Defective drawn order/improperly dated ruling issued by court can constitute sufficient cause — Duty of advocate to check documents but subsequent diligence in withdrawing and rectifying may justify extension.
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8 September 2010 |
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6 September 2010 |
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An incurably defective affidavit answering interrogatories may be struck out, permitting ex parte proceedings under Order XI Rule 18.
Civil procedure – Interrogatories (Order XI Rules 1,2,9,18) – Formal requirements for affidavits – incurably defective affidavit (missing date on verification/jurat) – striking out – effect: defence treated as if not filed; suit may proceed ex parte.
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6 September 2010 |
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6 September 2010 |
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Majority shareholder has locus to seek removal of liquidator; affidavit and factual disputes unsuitable for disposal by preliminary objection.
Companies law – voluntary winding-up – contributors/shareholders have locus standi to apply for removal of a liquidator; Civil Procedure – preliminary objections – factual disputes requiring evidence cannot be resolved on preliminary objection; Affidavits – verification and disclosure of information sources under Order XIX r.3(1) CPC; objections to lack of particularisation of alleged legal argument/extraneous matters.
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2 September 2010 |
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Applicant's restitution claim dismissed because appellate nullification left no decree to be varied or reversed.
Civil Procedure – Restitution under section 89 CPC – requirement that a decree be varied or reversed before restitution lies; effect of appellate nullification/quashing of lower court proceedings on availability of restitution – execution and possession – interplay with barred suits under section 89(2) CPC; forum for competing title claims (Land Division).
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1 September 2010 |
| August 2010 |
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Ex parte proof established an unpaid commercial debt; contractual and decretal interest plus costs awarded; damages denied.
Civil procedure – ex parte proof where defendant fails to file a defence – Order VIII r.14(2)(b). Contract law – proof of debt by invoices, delivery notes, purchase orders and statement of account; corroboration by debtor’s admission
Interest – enforcement of contractual interest on overdue accounts (12% per month) and decretal/post-judgment interest under procedural rules (7% p.a.)
Damages – general damages for loss of income are special and require specific pleading and proof; punitive damages require bad faith or malicious conduct
Costs – costs follow the event where plaintiff succeeds
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19 August 2010 |
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19 August 2010 |
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Plaintiff failed to prove the defendant agreed to pay for private firefighting services amid shared municipal firefighting response.
Civil procedure – ex parte proof hearing; Contract/quantum meruit – liability for private firefighting services; Evidence – adequacy of fire report, third‑party affidavit and invoices to prove request and agreement to pay; Public agency involvement – effect of City Fire Brigade’s earlier and material firefighting role.
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10 August 2010 |
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A plaint must plead facts attributable to the defendant disclosing a cause of action; failure warrants rejection.
Commercial law – plaint failing to disclose cause of action – preliminary objection – overdraft repayment – pleaded facts must show defendant’s conduct as source of claim; economic misfortune and personal accidents are not attributable to bank.
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9 August 2010 |
| July 2010 |
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Court allowed departure from scheduling order and extended time, holding procedural rules directory and inherent powers permit enlargement for justice.
Civil procedure — Order VIIIA (Rules 3 & 4) — Scheduling conference orders — Whether mandatory or directory — Inherent jurisdiction and sections 93, 95 CPC to enlarge time and permit departure — Speed track limitations and Law of Limitation Act — Costs where departure granted.
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6 July 2010 |
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5 July 2010 |
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Late-filed defence excused where improper summons and scheduling failures deprived defendant of a fair opportunity.
Civil procedure — Order V Rule 1 — summons to appear vs summons to file defence; effect of improper service on time to file written statement of defence; striking out defence for late filing; procedural fairness and avoidance of defeating substantive justice.
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5 July 2010 |
| June 2010 |
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High Court lacks jurisdiction to entertain challenge to EWURA compliance orders; appeal lies to the Fair Competition Tribunal.
Administrative and energy law – jurisdiction – EWURA compliance orders under s.39; internal review under s.27 and appeal to Fair Competition Tribunal under s.29 and Petroleum Act s.52; compliance orders enforceable as injunctions but appealable to FCT; finality and enforcement of FCT decisions.
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28 June 2010 |