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Citation
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Judgment date
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| December 2004 |
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Commercial court has jurisdiction over ship-ownership claims, but fresh suit duplicating pending proceedings is barred by res judicata and abuse.
Commercial jurisdiction – admiralty and ship-ownership disputes under GN.141/1999; res judicata – interlocutory rulings and same parties/issue; abuse of process and improper use of Order XXI Rule 62/Order XXXVI Rule 9 CPC; forum shopping barred.
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20 December 2004 |
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13 December 2004 |
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A bank's internal write-off does not discharge the respondent's debt; principal, interest, guarantors' liability and jurisdiction upheld.
Commercial law — Loan recovery — bank 'write-off' (charge off) is internal and does not discharge borrower; proof by account statements; debenture and registered charge enforceable; guarantors' liability coextensive with principal; Commercial Division jurisdiction over commercial recovery actions; decretal sum to attract post-judgment interest.
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10 December 2004 |
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Defendant unlawfully terminated supply contract; plaintiff entitled to damages, interest and costs, set-off not proven.
* Contract law – breach by premature termination without contractual notice – entitlement to damages to place claimant in position as if contract performed.
* Evidence – installation and operation of equipment – admissibility and weight of contradictory witness testimony.
* Civil procedure – set-off must be specifically pleaded with particulars under Order VIII rule 6; failure to particularise defeats set-off.
* Remedies – assessment of loss of profit, value of installed equipment and renovation costs; exclusion of claims unsupported by the contract (signpost).
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7 December 2004 |
| November 2004 |
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Respondents' preliminary objections (non‑joinder, res sub‑judice, mortgage irregularity) dismissed; plaintiff's suit may proceed with costs.
* Civil procedure — preliminary objections — nature and limits — Mukisa test; preliminary objections must raise a pure point of law that can dispose of the suit. * Non‑joinder — misjoinder/non‑joinder of debtor does not automatically defeat an action against guarantors; Order 1 Rule 9 CPC. * Res sub‑judice — suit barred only where matter directly and substantially in issue between same parties or those claiming under same title. * Evidence requirement — alleged irregularity of mortgage (lack of Commissioner’s consent) requires evidence and is not a proper preliminary objection.
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22 November 2004 |
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If a statutory procurement appeals tribunal exists but is non‑operational, the High Court may entertain judicial review applications.
Public procurement – statutory appellate body (PPAA) constituted but non‑operational – effect on requirement to exhaust remedies – High Court jurisdiction to entertain judicial review – leave to apply for judicial review – mandatory tender specifications and alleged discriminatory procurement practices.
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19 November 2004 |
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The applicant succeeds; respondents as guarantors liable for the full loan, interest and costs.
Contract — Guarantees/suretyship — Liability of surety co‑extensive with principal debtor (s.80 Law of Contract Ordinance); enforceability of personal guarantees; judgment on admissions; interest and costs awarded.
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19 November 2004 |
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Leave to appeal refused where applicants relied on new matters and failed to show prima facie grounds.
* Appellate procedure – Leave to appeal – Requirement of prima facie grounds meriting appeal. * Procedure – Supplementary affidavit – New matters raised after trial cannot support leave. * Civil execution – Alleged auction irregularities and payment disputes – New issues must have been before trial court. * Fraud allegations – Distinction between fraud in decree and fraud in auction. * Property law – Low auction price is not per se a ground for setting aside sale.
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18 November 2004 |
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Objection to attachment failed because unchallenged evidence showed the property was a school, not a matrimonial/residential home.
Matrimonial home — section 59(1) Law of Marriage Act — residential-house exemption — section 48(1)(e) Civil Procedure Code — attachment — evidentiary burden — unchallenged court-broker affidavit and photographs establishing non-residential use.
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16 November 2004 |
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A mortgagee cannot execute against a mortgagor’s property where the mortgagor was not joined in the suit.
* Mortgage law – Enforcement of mortgage security – Requirement to join mortgagor in suits affecting mortgaged property (O.XXXII, R.1 CPC).
* Civil procedure – Joinder of parties – Execution against third-party mortgaged property where mortgagor not a party.
* Execution law – Validity of attachment and sale where mortgagor was not sued.
* Remedy – Mortgagee’s inability to use decree against borrower to realize mortgaged property without joinder.
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16 November 2004 |
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Court granted leave to seek judicial review of a tender award, finding alleged breaches of mandatory procurement procedure raised triable issues.
* Administrative law – judicial review – prerogative orders (certiorari, mandamus, prohibition) – leave to apply for review where mandatory procurement procedures allegedly breached.
* Public Procurement – Public Procurement Act 2001 and GN.138/2001 – mandatory evaluation/award procedures and transparency requirement.
* Civil procedure – preliminary objections – Mukisa Biscuit test; factual objections not suitable as preliminary points.
* Institutional remedy – Public Procurement Appeals Authority (PPAA) not operational; courts retain jurisdiction until PPAA functions.
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12 November 2004 |
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Taxation of costs before the High Court must be stayed where a notice of appeal to the Court of Appeal has been filed, as taxation is not an exception.
* Civil procedure — Taxation of costs — Effect of notice of appeal — Whether High Court retains jurisdiction to tax costs after notice of appeal filed. * Appeal procedure — Seisin of court — Court of Appeal seized on filing of notice of appeal; High Court’s jurisdiction suspended except for specifically permitted applications. * Section 77 reference — Taxing Master’s referral on jurisdictional doubt.
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4 November 2004 |
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A lender need not renew credit on identical terms; no binding renewal contract without the borrower's acceptance.
* Banking law – overdraft renewal – lender not obliged to renew on identical terms; renewal is by offer and acceptance. * Contract formation – absence of acceptance means no binding contract. * Liability for third-party action – bank not liable for government demolition of mortgaged property. * Remedies – plaintiff failed to establish entitlement to declaratory or compensatory relief.
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3 November 2004 |
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Cause of action accrued on defendant’s refusal to pay agreed additional costs; suit not time-barred and non-joinder non-fatal.
Limitation law – accrual of cause of action for additional costs accepted by defendant (30/6/2000); Non-joinder – O.1 R.3 and O.1 R.9 CPC – discretionary and non-fatal; Public corporations – specified corporation under PSRC retains legal personality and may be sued; leave to sue required and obtained.
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1 November 2004 |
| October 2004 |
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The applicant's insurance claim was time‑barred because the cause of action accrued at the burglary, not the discharge voucher.
* Limitation of actions – accrual of cause of action – under Law of Limitation Act 1971 s.5 and First Schedule Item 7 (six-year period for contracts).
* Insurance law – notice of loss and claim for indemnity – cause of action accrues on occurrence of loss and demand for indemnity.
* Commercial instruments – discharge/satisfaction voucher is not a promissory note under Bills of Exchange Act s.89(1); does not create new cause of action or reset limitation period.
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26 October 2004 |
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The respondent’s non est factum defence failed; the applicant recovered T.shs 122,223,869 with costs.
* Commercial law – supply of petroleum products on credit – indebtedness established by invoices, delivery notes and account statements.
* Contract law – settlement agreement as acknowledgment of debt – validity of signed agreement.
* Non est factum – requirements for plea to succeed; burden on signer to prove lack of consent, undue influence, coercion or fraud.
* Evidence – credibility of language comprehension based on prior written communications; onus of proof under Evidence Act.
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15 October 2004 |
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Applicant entitled to payment for site clearance and tree removal; engineers’ certifications upheld; interest and costs awarded.
Construction contracts – site clearance v. top-soil stripping; variation orders and interim payment certificates; authority and delegation of site/resident engineers; quantum meruit; adjudicator reports as evidence not binding; entitlement to contractual rates and interest.
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1 October 2004 |
| September 2004 |
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Wrong citation of the law and failure to prove intent to remove property defeated the application to restrain the vessel from sailing.
Civil procedure – interim injunctions – attachment before judgment (Order XXXVI, r.6 CPC) – wrong citation of substantive provision (Order XXXVII) fatal – s.68 CPC supplemental – applicant must prove intent to dispose or remove property to obstruct execution – ordinary commercial sailing not removal with intent to obstruct.
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24 September 2004 |
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Application under wrong procedural provision; O.36 prerequisites not met — application struck out and interim order lifted.
Civil procedure — interim injunction against vessel — wrong citation of law (Order 37 invoked instead of Order 36 Rule 6) — requirement to cite substantive provision; Order 36 R.6 (attachment before judgment) — must prove intent to remove/dispose property to obstruct execution — ex parte injunction raised.
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24 September 2004 |
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14 September 2004 |
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Applicant’s admitted default and contractual debenture rights justified receiver appointment; injunction refused for failure to show triable issue or irreparable harm.
Creditor remedies – appointment of receiver and manager under debenture and credit facility upon default; Interim relief – principles for grant of temporary injunction (triable issue; likelihood of success; irreparable harm; balance of convenience); Effect of debtor's admission of indebtedness on injunctive relief.
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9 September 2004 |
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An expired (unrenewed) driving licence at accident time defeats an insurance claim under a policy exclusion requiring a permit in force.
Motor insurance – policy exclusion for driving without a driving permit in force – interpretation of Road Traffic Act ss.19, 25(2),(3) and 52(d) – licence validity limited to three years unless renewed – non-renewal at material time defeats indemnity under clause 6.
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9 September 2004 |
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Whether a bank proved unauthorized excess withdrawals and the defendants’ liability where bank-account irregularities were uncontroverted.
Banking law – overdraft facility – alleged excess withdrawal – evidentiary burden on bank; accounting irregularities by branch staff; liability limited to proved overdraft; contractual interest and default penalty; enforcement of mortgage security.
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8 September 2004 |
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The applicant lacks standing to sue on sale agreements to which it is not a party; suit dismissed with costs.
Locus standi — privity of contract — association not party to sale agreements cannot sue on those contracts; failure to annex asserted contracts fatal to cause of action; preliminary objection dispositive — suit dismissed with costs.
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8 September 2004 |
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Court stayed proceedings and referred dispute to arbitration where petition was timely and parties agreed to arbitrate.
Arbitration clause – stay of court proceedings – petition under Arbitration Act – timing of petition (before written statement of defence) – requirement of readiness and willingness to arbitrate – court’s discretion and factors to consider.
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7 September 2004 |
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Applicant's request to enjoin respondent's use of "POA" denied for failure to show prima facie case, balance of convenience, and irreparable harm.
Trade mark and passing‑off — interlocutory injunctions — requirements for granting temporary relief (prima facie case, balance of convenience, irreparable harm) — caution in granting injunctions in trade mark/business‑name disputes.
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6 September 2004 |
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A surety may recover from the taxpayer after customs demand and default; enforcement after bond expiry lawful if cause of action accrued.
* Contract — security bond — conditional obligation to pay customs duty within seven days of Commissioner’s determination — surety’s liability on taxpayer default. * Customs law — assessment and communication of tariff/duty — demand by Commissioner creates cause of action when seven-day period lapses. * Enforcement — encashment of bond after stated expiry — permissible where cause of action accrued before or on expiry. * Civil procedure — objections not pleaded cannot be raised at trial.
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3 September 2004 |
| August 2004 |
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An amendment application filed to pre-empt pending preliminary objections was an abuse of process and dismissed with costs.
* Trade mark proceedings – application to amend pleadings filed after preliminary objections – amendment held abuse of process if used to pre-empt objections.
* Civil procedure – improper attempt to cure procedural defects by amendment after opposing party has raised and argued objections – Court of Appeal authority applied.
* Authority to institute proceedings/counsel's authority raised as preliminary objections (issue addressed as subject of attempted amendment).
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27 August 2004 |
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Court held sale included both farm and crushers; defendant had possession; judgment for plaintiff USD195,000.
Sale of land and chattels – written land sale required by law; oral agreement admissible to include additional goods – possession established by conduct and correspondence – allegation of illegality (tax evasion) must be proved – remedy: monetary judgment or alternatively specific repossession and mesne profits.
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18 August 2004 |
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Plaintiff failed to prove fraud; court found she guaranteed the loan and mortgaged her title deed as recorded in the memorandum.
Contract and security — whether a guarantor/owner guaranteed an overdraft and mortgaged title deed — evidentiary standards for alleging fraud/misrepresentation in civil proceedings — weight of signed memorandum and attested documents.
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16 August 2004 |
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Court held the sale included land and crushing plants; respondent liable to pay or return assets with mesne profits and interest.
Contract law – sale of land (statutory requirement for writing) and oral agreement for chattels – admissibility of contemporaneous e-mails and conduct to establish a single transaction; possession distinguished from legal ownership; allegation of illegality (tax evasion) requires evidential proof.
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12 August 2004 |
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Leave granted to sue a specified public corporation placed under an Official Receiver; Official Receiver need not be sued with leave.
Public Corporations Act s.43(1); Bankruptcy Ordinance s.9 – effect of declaration as Specified Public Corporation – Official Receiver status – necessity of court leave to sue a debtor under an Official Receiver.
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5 August 2004 |
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Leave granted to sue a specified public corporation; no leave required to sue the Official Receiver.
Public corporations – Specified public corporation (GN 330 A) – Effect of specification under s.43(1) Public Corporations Act – Official Receiver – Requirement of court’s leave to sue a debtor under Official Receiver (s.9 Bankruptcy Ordinance) – Leave to institute proceedings against specified public corporation.
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5 August 2004 |
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An irrevocable guarantee is enforceable on principal default, and the guarantor may recover indemnity from the defaulting principal.
Guarantee law – unconditional/irrevocable deed of guarantee enforced on principal's default; guarantor liable on notice of default; guarantor entitled to indemnity from defaulting principal; procedural law – objections to locus standi waived if not pleaded.
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3 August 2004 |
| July 2004 |
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Buyer’s failure to adhere to payment schedule justified seller’s rescission; refund ordered, specific performance denied.
* Sale of land – instalment payment schedules – failure to pay instalments constitutes breach allowing rescission; * Specific performance – inappropriate where subdivision contingent and substantial unpaid balance exists; * Rescission and refund – purchaser entitled to refund of monies paid where seller validly rescinds.
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29 July 2004 |
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Failure to prove payment of premium meant the plaintiff could not establish a comprehensive insurance policy or entitlement to indemnity.
Insurance law – existence of policy – proof of payment of premium essential to establish effectiveness of comprehensive cover; cover note and cheque alone may be insufficient; burden of proof on insured to show insurer received and accepted premium for indemnity claim.
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29 July 2004 |
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Plaintiff failed to prove agency or copyright infringement; suit dismissed with costs.
Agency law – creation of agency requires proof of acceptance of authority; absence of acceptance defeats claim of agency; vicarious or agent liability requires established principal-agent relationship; copyright claim dismissed for lack of evidentiary proof.
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28 July 2004 |
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Preliminary objections to winding‑up enforcement proceedings dismissed; court has discretion, Rule 223(1) saves formal defects, and contempt jurisdiction upheld.
Companies — Winding‑up rules — court’s discretion under Rule 5(1)(f) and Rule 8(1) to hear matters in open court; Rule 223(1) — formal defects/clerical errors not invalidating proceedings absent substantial injustice; interlocutory affidavits may state belief; winding‑up court jurisdiction to deal with contempt and enforcement despite related appeals unless execution stayed.
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26 July 2004 |
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A willful refusal to pay a decretal sum can justify civil imprisonment where execution procedures under O.XXI CPC are complied with.
Execution — arrest and detention as civil prisoner; Civil Procedure Code O. XXI R.9–10 and O. XLIII R.2 — procedural compliance and permissible modes of application; Salomon principle inapplicable where individual was party to suit; standard for civil imprisonment — willful refusal to pay; Court’s discretion under Rule 35 to allow show‑cause and consider affidavits; Order for six months’ detention and costs.
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21 July 2004 |
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Advocate’s negligence can justify setting aside a dismissal; court may reprimand counsel and order personal costs.
Civil procedure – setting aside dismissal for want of prosecution – effect of advocate’s negligence or mistake as sufficient cause; costs and reprimand against negligent counsel.
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20 July 2004 |
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Applicant with exclusive hunting rights obtained mandatory and temporary injunctions to remove respondents' camps and restrain tourism.
Injunctions — mandatory and interlocutory relief to remove camps and restrain tourism; ex parte proceedings after refusal of service; exclusive wildlife/hunting rights; balance of convenience and irreparable harm.
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16 July 2004 |
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No commercial payphone contract existed because the applicant failed to meet the telecom's prescribed commercial-installation requirements.
Telecommunications/contract law – Classification of telephone services (home, office, commercial) – Formation of commercial payphone contract requires specific application, inspection, agreement and licences – Failure to comply precludes contractual entitlement and claims for loss of profits; installation/deposit non-refundable.
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5 July 2004 |
| June 2004 |
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A 50% shareholder alleging failure to hold statutory meetings has capacity to present a winding-up petition; objection dismissed.
* Company law – Companies Ordinance (Cap.212) – s.169: who may present winding-up petition – shareholder standing where statutory meetings/reports defaulted. * Civil procedure – preliminary objection – Mukisa test: pure point of law, timing and competency. * Capacity/locus standi – director vs shareholder standing to petition for winding up. * Distinction between preliminary objection on capacity and merits under s.167 (just and equitable/winding-up grounds).
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25 June 2004 |
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High Court taxed a bill of costs under the 1991 Advocates' Rules, reducing instruction fee to T.shs.20,000,000 and awarding T.shs.20,691,620.
* Costs — taxation of bill of costs in High Court — Advocates' Remuneration and Taxation of Costs Rules 1991 (Schedule XI) applicable, not Court of Appeal Rules. * Instruction fee — reasonableness assessed against time, complexity, research and submissions; excessive claims reducible. * Disallowances — need for receipts for disbursements, folio numbering and document filing, clear time particulars, and disclosed mode of service. * Rule 46 — where more than one-sixth of a bill is disallowed, the party is not entitled to costs of taxation.
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25 June 2004 |
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Applicant entitled to interest on rent arrears despite receiver status; mesne profits and damages disallowed.
Commercial law – lease – arrears of rent – interest on arrears provable under bankruptcy principles; Public Corporations Act s.43 confers official‑receiver powers; Bankruptcy Ordinance s.70 and Rule 20 on interest for provable debts; contractual rate must be proved; mesne profits/damages for lost opportunity too remote.
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23 June 2004 |
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High Court lacks jurisdiction over commercial claims under T.shs30,000,000/=; suit struck out with costs.
Commercial law – Pecuniary jurisdiction – Written Laws (Miscellaneous Amendments) Act No.4 of 2004 – District Court jurisdiction up to T.shs30,000,000/= – High Court lacks jurisdiction for claims below T.shs30,000,000/=; court must determine jurisdiction at any stage.
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22 June 2004 |
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An insurer suing in subrogation must prove the insured loss and justify payment; failure to do so leads to dismissal.
* Insurance law – Subrogation – Insurer’s right to sue in place of insured after payment; * Evidence – Burden of proof under section 112 Law of Evidence Act – necessity to prove insured loss and defendant's breach; * Civil procedure – Failure to tender underlying policy and call police investigator evidence fatal to claim; * Insurance – Improper joinder/indemnity where third-party policy does not cover risk/location.
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21 June 2004 |
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Applicant’s second thoughts and alleged intimidation insufficient to set aside consensual settlement order.
Civil procedure – consent judgment/settlement – setting aside court-ordered settlement – allegations of coercion by counsel – second thoughts not sufficient to set aside consent order.
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18 June 2004 |
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Applicant bank entitled to principal, contractual and penalty interest; guarantors liable; bank’s computer printout admissible as banker’s book.
Commercial law – Loan and overdraft facilities – construction of letter of offer and conditions precedent; Guarantee law – validity and extent of guarantors’ liability; Evidence – admissibility of computer printouts as banker’s books under Evidence Act; Remedies – contractual interest, penalty interest and post-judgment interest; Procedural – abandonment of counterclaim by failure to plead in amended defence.
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9 June 2004 |
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Suit dismissed: second plaintiff lacked status and prior settlement requiring customs investigation barred this Court’s jurisdiction.
* Civil procedure – party status – Order 1 Rule 1 CPC – capacity to sue; * Res judicata/consent order – obligation to comply with settlement requiring customs investigation; * Customs procedure – interplay between court proceedings and statutory customs/appeal mechanisms; * Jurisdiction – effect of prior settlement on subsequent litigation.
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8 June 2004 |