High Court Commercial Division - 2003 April

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7 judgments

Citation	Judgment date
April 2003
CRDB Bank Ltd vs John Kagimbo Lwambagaza [2003] TZHCComD 4 (22 April 2003) 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.	22 April 2003
CRDB Bank Ltd vs John Kagimbo Lwambagaza (Commercial Case No. 10 of 2000) [2003] TZHCComD 3 (22 April 2003) 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.	22 April 2003
CRDB Bank Ltd vs John Kagimbo Lwambagaza (Commercial Case No. 10 of 2022) [2003] TZHCComD 6 (22 April 2003)	22 April 2003
The Tanzania Revenue Authority vs Zena Mohamed Bahroon T/A New Pattaya Hardware (Commercial Case No. 295 of 2002) [2003] TZHCComD 18 (15 April 2003) 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.	15 April 2003
National Bank of Commerce Ltd vs Shillam Holdings Ltd (Commercial Case 280 of 2001) [2003] TZHCComD 2 (9 April 2003) 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.	9 April 2003
CRDB Bank Ltd vs Rukanga Butchery General supplies Ltd & 2 Others (Commercial Case No. 343 Of 2001) [2003] TZHCComD 9 (7 April 2003) 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.	7 April 2003
African Banking Corporation Tanzania Ltd vs Lake Transport Ltd & 2 Others (Commercial Case No. 291 of 2002) [2003] TZHCComD 12 (2 April 2003) 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.	2 April 2003