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Citation
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Judgment date
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| December 2011 |
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A preliminary objection based on disputed service of notice of appeal was improper and was dismissed; each party to bear own costs.
Preliminary objection — must raise a pure point of law; cannot resolve factual disputes requiring evidence — stay of execution — relevance of Court of Appeal Rules on service of notice of intended appeal; Mukisa Biscuits principle applied.
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29 December 2011 |
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Landing contractor liable for negligent custody of container; plaintiff awarded customs-based refund, general damages, interest and costs.
Commercial law – carriage/container custody – landing contractor’s duty of care for containers and contents; negligence for pilferage in defendant’s custody Evidence – valuation of lost goods – admissibility of pro forma invoice vs. reliance on customs release/declaration Remedies – award of pecuniary compensation based on customs-declared value, general damages, pre- and post-judgment interest, and costs
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29 December 2011 |
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29 December 2011 |
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Suing a company’s managing director in his official capacity is curable by substitution; misjoinder of plaintiffs upheld.
Company law – separate legal personality – a limited liability company is distinct from its officers; actions against officers in their official designation are improper but curable by substitution. Civil procedure – pleadings – Order VI r.14 CPC – omission of advocate's signature is procedural and curable; does not automatically vitiate plaint. Civil procedure – joinder of plaintiffs – Order I r.1 and r.9 CPC – plaintiffs may be joined only where rights to relief arise out of the same act or series of acts and common questions of law or fact exist; misjoinder where transactions are distinct
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29 December 2011 |
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An arbitration clause does not oust court jurisdiction where a defendant has taken steps in court instead of timely seeking a stay.
Arbitration clause – effect on court jurisdiction; enforcement versus ouster of jurisdiction Arbitration Act, section 6 – stay of proceedings pending arbitration "Step in the proceedings" (e.g., filing written statement) bars later application for stay Judicial discretion in granting or refusing stays under arbitration agreements
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29 December 2011 |
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Court granted extension to appeal time due to counsel’s bereavement and verified illness of substitute counsel.
Extension of time — section 11(1) Appellate Jurisdiction Act and section 14(1) Law of Limitation Act — sufficiency of reasons — counsel’s bereavement and substitute’s illness as grounds — negligence/diary mismanagement ordinarily insufficient but facts may justify extension — appealability and merits not determined at extension stage.
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23 December 2011 |
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22 December 2011 |
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Expiry of a Speed Track does not automatically extinguish a suit; court may amend scheduling orders in the interests of justice.
Civil Procedure — Order VIIIA Rule 3(c) & Rule 4 — Speed Track allocation and computation; expiry of Speed Track does not automatically terminate suit; court may depart from/amend scheduling order in the interests of justice; such relief need not be constrained by Law of Limitation; striking out is not the necessary remedy for expired Speed Track.
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20 December 2011 |
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Application to set aside dismissal for non-appearance dismissed as lacking sufficient cause and rendered futile; High Court lacked jurisdiction to stay execution.
Civil Procedure — Order IX Rule 9(1) & s95 CPC — setting aside dismissal for non-appearance — sufficient cause; Stay of execution — jurisdiction after Court of Appeal determination; Remedy for judgment alleged obtained by fraud — appeal/revision versus fresh suit.
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16 December 2011 |
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Revocation of the applicant's letters of administration without hearing was a nullity and was quashed.
Probate law – revocation of letters of administration – necessity to afford administrator opportunity to be heard; failure to consider defence renders decision a nullity. Natural justice – audi alteram partem – service/notice and right to be heard; absence without proof of notice does not validate in‑absentia revocation. Civil procedure – nullity of proceedings where party denied hearing; appellate power to quash and restore administration
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16 December 2011 |
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Court reduced excessive instruction and attendance fees and taxed the bill of costs at Tzs. 8,115,000/=.
Taxation of costs – instruction fees – factors: suit value, subject matter, complexity, time, research, parties' conduct
Advocates' Remuneration – GN 515/91 scales outdated – taxing master may adjust awards to achieve fair compensation
Taxation – attendance, ADR and disbursements – reduction where excessive or where adjournments caused by judgment debtor
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16 December 2011 |
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An application to restore a struck-out suit under section 95 CPC is time-barred and cannot circumvent the Limitation Act.
Civil Procedure — Section 95 (inherent powers) — Inherent jurisdiction exercisable only where no specific statutory provision exists
Limitation — Law of Limitation Act, Part III item 21 — Applications under the Civil Procedure Code subject to 60-day limitation
Procedure — Restoration of suit struck out — application time-barred where filed after prescribed period; court functus officio as to orders of another judge
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13 December 2011 |
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5 December 2011 |
| November 2011 |
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25 November 2011 |
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Oral hire contract proved by invoices and logbooks; unpaid sum awarded with 21% pre-judgment interest and 7% thereafter.
Contract law – oral hire agreement proven by invoices, logbooks and correspondence – burden of proof on claimant; unauthorized signatory defence raised late and unproven; damages and interest – principal awarded with pre-judgment interest (21%) and post-judgment interest at court rate (7%); general damages not awarded for failure to prove quantum.
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24 November 2011 |
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24 November 2011 |
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23 November 2011 |
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A valid contract existed but the applicant failed to prove payment; claim dismissed with costs.
Contract law – existence of sale agreement proved by original contract; Evidence – burden of proof rests on claimant to prove payment; Necessity of documentary corroboration (receipts, bank slips) and calling material witnesses; Ex parte proceedings insufficient to relieve claimant of proof obligations.
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21 November 2011 |
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Court allowed a late amendment and admission of newly discovered bank documents affecting cheque-presentation and negligence issues.
Banking law – cheque presentation (technical meaning) – late discovery of documents – amendment to pleadings – leave to amend allowed if bona fide and no uncompensable prejudice – court may control delay by imposing timelines.
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18 November 2011 |
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Defendant granted leave to defend summary suit after raising triable issues about third‑party instructions and lack of transaction particulars.
Summary procedure (Order XXXV) – leave to defend – triable issues – dishonoured cheques – defence based on third‑party instruction – requirement for real, honest and bona fide dispute – lack of particulars – leave to defend granted.
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15 November 2011 |
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Omission to state whether Commissioner knew deponent in jurat is curable; place and date in jurat are mandatory.
Affidavit – jurat of attestation – Notaries Public and Commissioners for Oaths Act (Cap 12) – section 8 – place and date mandatory Affidavit v statutory declaration – affidavits governed by Cap 12, not section 10 of Cap 34 Jurat omission regarding whether Commissioner knew deponent – not mandatory, curable Preliminary objection – dismissed where omission is curable; court may order amendment Amendment – respondent directed to file amended jurat within seven days; no order as to costs
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15 November 2011 |
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Omission in jurat about Commissioner knowing deponent is not fatal; place and date are mandatory and jurat may be amended.
Civil procedure – jurat of attestation – Notaries Public and Commissioners for Oaths Act (Cap 12) s.8 – place and date in jurat mandatory
Affidavits – identity statement by Commissioner for Oaths (knowing or being introduced to deponent) not a mandatory jurat requirement under Cap 12
Oaths and Statutory Declarations (Cap 34) – section 10 pertains to statutory declarations, not affidavits. Procedural law – omission in jurat amendable; affidavit not incurably defective where no injustice results
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15 November 2011 |
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A defendant who is a stranger to the bill of lading cannot sue the carrier; third-party notice dismissed with costs.
Contract of carriage — Bill of lading — Privity of contract: a stranger to a bill of lading cannot sue the carrier; preliminary objection dispositive; failure to file ordered submissions amounts to waiver.
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11 November 2011 |
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Omission to sign or properly verify pleadings is a procedural defect curable by amendment; not automatically struck out.
Civil Procedure — Orders VI r.14 and XXVIII r.1 CPC — Signature and verification of pleadings — Advocate signing for party — Requirement to show absence or good cause — Procedural defect curable by amendment — Failure to sign not necessarily a nullity.
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10 November 2011 |
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Court ordered arrest and six-month committal of the respondent as civil prisoner for defaulting on consent-decree instalments.
Civil procedure – execution of consent decree – arrest and committal as civil prisoner for default on instalments
Order XXI r.5(2) CPC – execution application properly filed. Default occurs on missed instalment; ad hoc payments do not postpone default. Interpretation of deed of settlement – monthly instalment schedule binding; no provision for payments only when funds available
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8 November 2011 |
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Application to extend time to challenge taxation was misconceived, wrongly grounded and struck out with costs.
Civil Procedure – procedure for extension of time – incorrect invocation of Advocates' Remuneration and Taxation of Costs Rules (GN No. 515/1991) when seeking leave to file reference out of time. Limitation law – Law of Limitation Act (Cap. 19 R.E.2002), s.21 applies to applications where no limitation period is provided
Taxation – rule 5 of Taxation Rules governs objections to taxation, not applications for extension of time
Pleadings – chamber summons and prayers must be competent and clear; vague or incoherent prayers render an application defective
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7 November 2011 |
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7 November 2011 |
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Court allowed recall of witness to tender a late-produced document annexed to the plaint in the interest of justice.
Evidence — Recall of witness under section 147 Evidence Act; Civil Procedure — Late production of documents — Order XIII Rule 2 good cause requirement; Discretion of court to admit belated documentary evidence in interest of justice; Prejudice and right to cross-examination.
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4 November 2011 |
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Court held a commercial claim over Tshs30,000,000 lies in High Court; preliminary objection dismissed with costs.
Jurisdiction – Commercial case definition under Act No.4 of 2004 – Pecuniary limits of Resident/District Magistrates (s.40(3)(b)) – High Court jurisdiction for claims exceeding Tshs30,000,000 – Pleading of special damages – Preliminary objection dismissed.
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2 November 2011 |
| October 2011 |
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Plaintiff’s mortgage suit contained reliefs outside Order XXXV; court converted the matter to ordinary proceedings.
Order XXXV (Summary Procedure) — Mortgage claims — Scope of summary relief; claims outside Order XXXV (e.g. eviction/vacant possession) cannot attract summary judgment — leave to defend converts summary suit into ordinary inter partes proceedings — court may strike out non-compliant plaint or proceed only with compliant claims.
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28 October 2011 |
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27 October 2011 |
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A specified public corporation may not be sued without leave of the High Court under s.9 of the Bankruptcy Act.
Public corporations – specification under Public Corporations (Amendment) Act s.43; PSRC/CHC as automatic official receiver; Bankruptcy Act (Cap 25) s.9(1) – leave required to sue specified corporation; timing of debt (post-specification) does not negate leave requirement; preliminary objections and non-joinder issues.
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25 October 2011 |
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A municipal council's bank accounts cannot be garnisheed; the Municipal Director must pay the award from council revenue; deductions made at payment.
Execution of arbitral award; garnishee/attachment against local government funds; s.109B Local Government (Miscellaneous Amendments) Act 2006; bank deposits and ownership; municipal directors duty to pay from council revenue; computation and timing of interest; notice of appeal deemed withdrawn for failure to institute appeal.
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24 October 2011 |
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An appeals decision based on clarification letters, issued late without suspension, was ultra vires and was quashed.
Public procurement — jurisdiction: clarification requests (Reg.85) are distinct from complaints/disputes (s.80) and do not ground administrative review under ss.80–82; Statutory time limits — PPAA must decide within s.82(5) period; decision delivered late is ultra vires; Suspension of proceedings — s.84(3) suspension should be considered where appeals pending; failure to suspend may render decision unreasonable; Judicial review — Wednesbury unreasonableness applied to procurement appeals; Ultra vires and procedural impropriety — remedy is quashing of decision.
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21 October 2011 |
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21 October 2011 |
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Collecting bank held liable for wrongfully crediting manager’s cheque; plaintiff awarded refund with interest.
Banking law – collecting banker’s duty – presentation and clearance of manager’s cheque – wrongful crediting/conversion of cheque proceeds – section 85(1) Bills of Exchange Act – bank’s strict duty of care and limits of good-faith defence.
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21 October 2011 |
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Whether an "all risks" marine cargo policy covers loss from vessel breakdown, drift and consequential delay.
Marine insurance – absence of issued policy but contract concluded by declaration forms – English Marine Insurance Act 1906 and Institute Cargo Clauses A applicable; "all risks" cover limited to fortuitous sea perils; exclusions (delay, mechanical breakdown, ordinary action of wind/waves, insufficiency/overloading) bar recovery where such causes are proximate; insurer not liable where insured fails to prove an insured peril as proximate cause.
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20 October 2011 |
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7 October 2011 |
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Director is not personally liable for company’s decree absent evidence of fraud, concealment or dishonest conduct.
Civil procedure: execution of decree – corporate personality – separate legal entity of company; lifting corporate veil only in cases of fraud, concealment or dishonest disposition of assets; arrest and civil imprisonment as execution mode requires proof director is liable or obstructing execution.
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7 October 2011 |
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7 October 2011 |
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Court dismisses preliminary objections; asserts jurisdiction and a common link among defendants in machinery ownership dispute.
Civil Procedure - Preliminary Objection - Cause of Action - Jurisdiction - Joint claims against international defendants concerning machinery ownership dispute.
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7 October 2011 |
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Court granted a Mareva-style freezing order and bank-statement production despite an arbitration clause.
Civil procedure — interlocutory relief — Mareva (freezing) orders — arbitration clause does not oust jurisdiction to grant interim preservation orders — Order XXXVII r.8(1)(a) and s.95 CPC — production of bank statements — balance of convenience and irreparable harm tests (Atilio/American Cyanamid).
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7 October 2011 |
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6 October 2011 |
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Prior in-house employment alone does not bar counsel from representing an adverse party absent proven conflict or confidential knowledge.
Conflict of interest; former in-house counsel; disqualification of advocate; burden of proof for possession of confidential information; timing of objection; professional ethics silent on specific bar
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5 October 2011 |
| September 2011 |
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Preliminary objection that there is no cause of action dismissed because the dispute raises mixed questions of fact and law requiring trial.
Banking law – mistaken/incorrect credit entries and customer reliance; Companies law – corporate personality and lifting the veil; Cause of action – determination from the plaint; Civil procedure – preliminary objection and pure question of law versus mixed question of fact and law; Requirement for evidence where factual disputes are central.
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29 September 2011 |
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Applicant failed to prove beyond reasonable doubt that the respondent wilfully disobeyed a maintenance-of-status-quo court order.
Civil contempt – maintenance of status quo order – required elements: formal order, knowledge, wilful disobedience – standard of proof beyond reasonable doubt – assessment of contradictory witness evidence and absence of proof of intent.
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29 September 2011 |
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Exclusive forum clause in the bill of lading ousts Tanzanian jurisdiction; plaint also defective under a qualified power of attorney.
Commercial law – carriage of goods – bill of lading – exclusive forum clause conferring jurisdiction on English courts; Civil procedure – jurisdiction – effect of forum selection clauses; Procedural law – suits instituted by holder of power of attorney – pleadings and authority; Parties bound by pleadings – inability to raise unpleaded contractual status to defeat jurisdiction clause.
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26 September 2011 |
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An exclusive jurisdiction clause in a bill of lading can oust local jurisdiction; plaint defective when filed under a qualified power of attorney.
Admiralty/Carriage Law – Bill of lading – forum-selection clauses – exclusive jurisdiction clause in bill of lading may oust local court jurisdiction if enforcement is not shown to be unreasonable or unjust. Civil procedure – Pleadings – parties bound by pleadings; counsel cannot introduce new facts in submissions. Procedural law – standing – actions instituted in the name of a qualified power of attorney may be defective; amendment discretionary and may be refused where other fatal defects exist
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26 September 2011 |
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Leave to appeal granted on whether dismissal of the applicant's cross-petition for want of prosecution was proper.
Civil procedure – leave to appeal – whether dismissal of cross-petition for want of prosecution was proper – appellate remedy. Civil procedure – review vs appeal – pursuing concurrent remedies and abuse of process
Evidence/procedure – corrections to affidavits and avoidance of undue technicalities in dispensing justice
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26 September 2011 |
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Bank entitled to judgment for unpaid lease amount, pre-judgment and post-judgment interest, and costs after defendant’s default and ex parte proof.
Commercial law – asset finance/lease – borrower default on repayment – evidence on ex parte proof – calculation and award of principal, pre-judgment and post-judgment interest – costs.
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23 September 2011 |