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Citation
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Judgment date
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| December 2003 |
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Court dismissed respondents' preliminary objections to winding-up petition, finding res judicata inapplicable and affidavit and locus standi proper.
* Companies law – Winding-up petitions – Preliminary objections – res judicata inapplicable where earlier suit not finally determined; governed by Companies (Winding Up) Rules. * Corporative standing – Contributory/shareholder – entitlement and documentary proof are evidential matters not for summary disposal. * Affidavit requirements – matters within deponent’s knowledge are acceptable; vague objections to affidavit dismissed.
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29 December 2003 |
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Commercial Division struck out a later-filed summary suit because an identical earlier suit was pending in another registry.
* Civil procedure – summary suits (Order XXXV) – locus standi of defendant to bring interlocutory applications before obtaining leave to appear.* Jurisdiction – Order IV r.1(3) Civil Procedure Code – Commercial Division must not entertain suits on commercial matters pending before another competent court or tribunal.* Stay vs striking out – where earlier suit on identical subject matter is pending the later suit in another registry should be struck out.* Precedent – applied decision in Commercial Case No.20 of 2000.
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18 December 2003 |
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Applicant failed to prove title to attached bakery assets; annexures inadmissible; objection dismissed with costs.
Civil procedure — Execution/attachment — Order XXI Rule 57 — Objector must prove title at time of attachment; inadmissibility of uncertified public documents, unstamped instruments and notary-attested drafts; ostensible authority of judgment debtor; objection to execution dismissed.
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12 December 2003 |
| November 2003 |
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Preliminary objections on affidavit defects and mis-cited law dismissed; objections on merits were inappropriate at preliminary stage.
Civil procedure – preliminary objections – affidavit sufficiency and disclosure of information sources; citation and applicability of CPC provisions (s.68; O.43 R.2; O.21 R.35; s.95) in contempt proceedings; merits vs. preliminary objection distinction.
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20 November 2003 |
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The court held the sale was validly revoked after the purchaser missed the final extended deadline (31/12/2002).
Contract law – Sale agreement – Variation of payment deadline by correspondence and oral requests – Validity of revocation after final extension lapses; typographical error in cancellation letter; purchaser’s reliance on third-party debt irrelevant; waiver of contractual penalties by vendor’s conduct.
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17 November 2003 |
| October 2003 |
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31 October 2003 |
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Defendant may amend defence to seek nullification without counter-claim, but a pending lower-court application raises jurisdictional lis pendens concerns.
• Civil Procedure – Amendment of pleadings – Leave to amend written statement of defence to include nullification prayer without formal counter-claim. • Civil Procedure – Counter-claim – When formal counter-claim unnecessary because adjudication of plaintiff’s claim disposes of defendant’s relief. • Jurisdiction/Lis Pendens – Section 8 CPC and Order VI, Rule 3 (as amended) – pending lower-court proceedings may preclude High Court (Commercial Division) from entertaining same matter.
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20 October 2003 |
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The applicant failed to prove prior export; the respondent lawfully withheld fuel pending bond cancellation.
Contract for sale of fuel — condition precedent to delivery — proof of exportation required for customs bond cancellation — burden of proof on claimant — authenticity and verification of customs documents — evidence from carrier and customs officials.
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15 October 2003 |
| September 2003 |
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A specified public corporation under statutory receivership cannot be wound up by a private creditor's petition.
Companies — Winding up — Verification of petition (Rule 29 Winding Up Rules 1929) — formal defect curable under Rule 223(1); Public Corporations — Specification under Public Corporations Act s.43 — PSRC statutory receivership/official receiver role — bars private winding-up petitions; Locus standi — creditor status must be established by proper documentation.
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19 September 2003 |
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Withdrawal of the main suit granted; admission by principal debtor does not extinguish creditor's claim against guarantor.
• Civil procedure – Withdrawal of suit – O. XXIII r.1 CPC – withdrawal granted but leave to re‑institute requires formal defect or sufficient grounds.
• Contract/Suretyship – Effect of judgment on admission by principal debtor – does not by itself discharge guarantor; liability co‑extensive under s.80 Law of Contract Ordinance.
• Execution – only a decree holder may apply for execution; third parties cannot compel court to execute decree.
• Stay – proceedings against guarantor not stayed pending proof of failed execution against principal debtor.
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4 September 2003 |
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Court may grant interim injunctions before a main suit and against the government using inherent judicial powers.
Civil procedure – interim injunctions – jurisdiction to grant interlocutory injunctions before institution of main suit (Mareva-type orders) – inherent powers under s.2 Judicature Ordinance and s.95 CPC; Government proceedings – injunctions against the State/Attorney General – scope of proviso to Order XXXVII r.2 (GN. No. 376 of 1968) – government not immune where prima facie case and imminent injustice shown.
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2 September 2003 |
| August 2003 |
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Court refused stay to arbitration where clause bound only a minority and risked multiplicity and inconsistent proceedings.
Arbitration – stay of court proceedings – application under ss.6 and 26 Arbitration Ordinance (Cap 15) – scope of arbitration clause; binding effect only on signatories; disputes governed by debentures/mortgages outside clause; risk of multiplicity and inconsistent findings; willingness/readiness to arbitrate; choice of law considerations (English vs Tanzanian law).
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27 August 2003 |
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Court granted bank's application to rectify its share register under Companies Ordinance s101 after corrections were filed.
Companies Ordinance (Cap 212) s101 – rectification of register of members; erroneous entries and omissions in share register; supplementary affidavit and corrected board resolution cure initial misstatements; court empowered to order rectification (and damages).
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13 August 2003 |
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Court affirmed power to grant interim injunctions pre-suit, including against government, under inherent jurisdiction and section 95 CPC.
Inherent jurisdiction — interim injunctions (Mareva-type) may be granted before institution of main suit in proper cases; applicability against Government despite proviso to O. XXXVII R.2; section 95 Civil Procedure Code and Judicature Ordinance empower courts to prevent abuse of process.
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2 August 2003 |
| July 2003 |
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Failure to obey court timetable and show sufficient cause warrants refusal of extension and entry of summary judgment.
* Civil procedure – extension of time – application for leave to appear and defend – requirement to show sufficient cause for delay; failure to comply with court-ordered timetable justifies dismissal. * Civil procedure – summary judgment – entry under Order XXXV Rule 2(2)(a) where defendant fails to obtain leave to appear and defend.
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18 July 2003 |
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Ex parte award of unpaid salary arrears and statutory injury compensation; food-provision and unproved damages claims disallowed.
* Employment contracts – validity established by appointment letters – entitlement to unpaid wages; * Evidence – ex parte proof must satisfy balance of probabilities; * Labour claims in commercial division – jurisdiction and procedural cure for misjoinder (O.1 r.9 CPC); * Food/catering claims – require specific contractual or evidentiary proof; * Workmen’s Compensation assessment accepted for injury compensation.
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15 July 2003 |
| June 2003 |
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Applicant's admission of unpaid rent and absence of any triable issue led to dismissal of application and judgment for the plaintiff.
* Rent arrears – admission of debt – admission and non-payment defeat relief; * Civil procedure – summary disposal – affidavit must raise a triable issue to resist claim; * Defence – denial of opportunity to pay does not constitute a substantive defence to arrears claim; * Costs – unsuccessful application dismissed with costs and judgment entered for plaintiff.
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19 June 2003 |
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Company insolvent — winding up ordered; debenture invalid for lack of proper board authority; liquidator appointed to investigate.
Companies Ordinance – Winding up (s.167) – Insolvency grounds; locus standi of shareholder-creditor to support petition; Debenture validity – requirement of proper board resolution and quorum; Registration not conclusive; Receivers/Managers’ acts stayed on commencement of winding up; Appointment, powers and remuneration of liquidator; Investigation of company affairs and possible personal liability for fraudulent trading (s.269).
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7 June 2003 |
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Matter for T.shs 14.5m struck out: Act No.25/2002 ousts High Court jurisdiction; suit belonged in subordinate court.
Civil procedure – jurisdiction after Act No.25 of 2002 – pecuniary jurisdiction of Magistrates’ Courts raised to T.shs 100 million; effect on High Court jurisdiction; lowest competent court rule (CPC s.13); joinder of borrower and guarantor – Order II r.3(1); preliminary objections; suit struck out for want of jurisdiction.
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6 June 2003 |
| May 2003 |
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Amendments capping magistrates' pecuniary jurisdiction do not oust the High Court's unlimited jurisdiction.
Constitutional law — jurisdiction of High Court — interpretation of amendments to section 40, Magistrates Courts Act (Act No.25/2002) — whether amendments oust High Court jurisdiction or merely cap subordinate courts' pecuniary jurisdiction; Articles 107A and 108 of the Constitution; preliminary objection dismissed.
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20 May 2003 |
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Amendments imposing pecuniary ceilings limit subordinate courts but do not oust the High Court’s jurisdiction; objection dismissed.
* Civil procedure – Jurisdiction – Effect of Written Laws (Misc. Amendments) Act No.25 of 2002 on section 40 Magistrates Courts Act – whether amendments oust High Court jurisdiction. * Constitutional law – Articles 107A and 108 – limits on legislative removal of High Court jurisdiction. * Interpretation – Amendments impose pecuniary ceilings on subordinate courts but do not curtail High Court’s inherent jurisdiction. * Relevant law – Civil Procedure Code s.13 and Judicature and Application of Laws Ordinance.
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20 May 2003 |
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Raising subordinate courts' pecuniary limits does not oust the High Court's jurisdiction over commercial suits.
Commercial jurisdiction — Act 25 of 2002 amendments to Magistrates' Courts Act — Pecuniary limits — Whether ousts High Court jurisdiction — Civil Procedure Code ss.6, 7, 13 — Constitution Arts.107A,108 — Concurrent jurisdiction — Access to justice/public policy.
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13 May 2003 |
| April 2003 |
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Sale in execution without required publication is irregular and set aside; resale to be conducted by an independent appointee.
* Civil procedure – Execution of decrees – Sale in execution – Requirement for proclamation and publication under Order XXI rules 64–67 of the Civil Procedure Code.
* Civil procedure – Validity of sale – Failure to publish in Gazette or local newspaper and failure to observe 30-day waiting period renders sale irregular and liable to be set aside.
* Execution procedure – Appointment of officer to conduct resale – decree holder not permitted to conduct subsequent sale in this case.
* Costs – Court discretion exercised; no costs ordered against judgment debtor.
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22 April 2003 |
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Applicant’s late, inconsistent challenge to sale of alleged matrimonial home lacked credibility and was dismissed.
Execution; attachment and sale of property – challenge by spouse claiming matrimonial/home exemption – credibility of affidavits; delay and laches; prior notice of intention to appeal affecting jurisdiction; caveat filed late.
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22 April 2003 |
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22 April 2003 |
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Unconditional leave to defend granted where disputed tax assessment and objection disclose facts suggesting a possible defence.
Summary procedure — Order XXXV r.2 & r.3(1)(b) — leave to appear and defend — disputed tax assessment and prior objection — Mechalec test: affidavit must disclose facts from which a possible defence may be inferred.
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15 April 2003 |
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Judgment on admission entered; application to pay the decretal sum by instalments reserved pending consideration of security and guarantees.
* Civil procedure – Judgment on admission – Entry of judgment where defendant admits liability.
* Civil procedure – Order 20 rule 11 – Application for payment of decretal sum by instalments and conditions for same (security, guarantees, down payment).
* Insolvency/creditors – Effect of other creditor claims and company indebtedness on suitability of instalment orders.
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9 April 2003 |
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Applicants used the wrong procedure to attack an out-of-court mortgage sale; applications dismissed.
* Mortgage law – Power of sale – Exercise of contractual mortgagee’s power to sell without recourse to court – Out-of-court sale by decree-holder/auctioneer.
* Civil procedure – Execution – Distinction between court-ordered execution and out-of-court contractual sale; inapplicability of execution rules to private auction under mortgage deed.
* Remedy – Challenge to allegedly defective auction must be pursued by separate action against decree-holder or auctioneer; interlocutory relief by chamber summons inappropriate.
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7 April 2003 |
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Dishonoured cheques do not automatically bar leave to defend; inadequate particulars and triable issues justified unconditional leave to defend.
* Civil Procedure — Order XXXV (summary procedure) — leave to appear and defend — requirements: bona fide/triable defence, not a sham.
* Effect of dishonoured cheques — issuance does not automatically preclude leave to defend.
* Pleadings — necessity for particulars/breakdown of claimed sums in summary suits.
* Security/payment into court — discretionary condition where defence appears weak.
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2 April 2003 |
| March 2003 |
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Applicant guarantor failed to demonstrate triable issues to resist summary suit; application dismissed with costs.
Summary proceedings (Order XXXV) – leave to appear and defend – requirement to show triable issues; Allegation of prior mortgage – necessity of documentary proof or corroboration; Failure to produce documents and unexplained delay may justify inference of tactical defence; Application to defend dismissed with costs.
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31 March 2003 |
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An insurer cannot generally sue a wrongdoer in its own name absent assignment or insured’s consent; plaint struck out.
Insurance law – Subrogation – Whether insurer may sue wrongdoer in its own name absent assignment or insured’s consent – pleading requirements for assignment – amendment under Order 1 Rule 10 CPC – equitable bar to insurer recovering from driver where risk covered by policy.
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18 March 2003 |
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Counsel’s justified simultaneous appearance before another judge warranted setting aside judgment and restoring application to defend.
Civil procedure – setting aside judgment – non-appearance of counsel excused where counsel was necessarily engaged in another court at same time – sufficient cause to restore application for leave to defend.
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18 March 2003 |
| February 2003 |
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Application to postpone auction sale dismissed; court cannot grant relief not pleaded and Rule 81(1) was only technically available.
Civil Procedure – O.XXI, R.81 CPC – Application to postpone sale of immovable property – Distinction between sales in enforcement of mortgage and ordinary decree sales – Relief must be pleaded in chamber summons; affidavit/submissions cannot introduce new prayers – Court will not grant superfluous orders where sale time has elapsed.
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10 February 2003 |
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An unargued preliminary objection is abandoned, and annexures did not constitute admission of payment of the debt.
Civil procedure – preliminary objections – abandonment where not argued; Pleadings and annexures – whether they constitute admission for judgment by admission (Order XII, Rule 4 CPC); Debenture validity – challenge under Notaries Public and Commissioner for Oaths Ordinance (not argued).
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3 February 2003 |
| January 2003 |
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A company is bound where an employee, acting with apparent authority, orders, receives and admits goods on its behalf.
* Commercial law – supply of goods – proof of delivery and value – tax invoices and delivery notes establish supply and value. * Agency/apparent authority – company bound by acts of employee who orders, signs and receives goods using company address/stamp. * Admissions – written confirmation signed by employee "for" company can constitute admission of liability. * Evidence – internal company procedures do not necessarily negate apparent authority where third party reasonably relies on employee’s representations. * Interest – trial court’s discretion to refuse excessive contractual rate and award nominal and decretal interest. * Costs – successful claimant entitled to costs.
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31 January 2003 |