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Citation
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Judgment date
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| December 2005 |
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Court granted extension to file defence after finding missing summons and counsel’s bereavement constituted good cause.
Civil Procedure — extension of time to file Written Statement of Defence — requirement to show "good cause" — improper service of summons with plaint and counsel’s bereavement accepted as good cause — right to be heard — no prejudice to respondent; application allowed.
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2 December 2005 |
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The court dismissed preliminary objections of subjudice, res judicata and lack of locus standi for lack of proof and prematurity.
* Civil procedure – preliminary objections – sub judice: burden to prove pending appeal before striking out; * Res judicata – requires same parties and same cause of action; different parties/amounts negate application; * Locus standi – pleadings contested may be tested at trial rather than by expungement at preliminary stage.
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1 December 2005 |
| October 2005 |
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Suit stayed as res sub judice; corporate-sanction and damages objections dismissed as factual, not pure points of law.
* Civil Procedure – res sub judice – stay of proceedings under section 8 Civil Procedure Code where related RM case pending.
* Preliminary objections – distinction between pure points of law and factual issues requiring evidence; corporate resolution authorisation and quantum/character of damages are factual matters.
* Costs – dismissal of non-justiciable preliminary objections with costs.
* Reliance on Court of Appeal authority (Citibank Tanzania Ltd v TTCL & Others).
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26 October 2005 |
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The applicant's intervention and enjoinder application was struck out given pending arbitration and affidavit defects.
Civil procedure – intervention and enjoinder – Order 1 r.10 CPC – Arbitration – stay pending arbitration under Section 6 Arbitration Ordinance – interlocutory relief incompatible with pending arbitration – defective affidavit (verification, place, date) potentially fatal.
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19 October 2005 |
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Court refused stay for arbitration because dispute raised statutory interpretation and public policy issues for the court.
* Arbitration – stay pending arbitration – s.6 Arbitration Ordinance (Cap.15) – court must determine nature of dispute and scope of arbitration clause; * Scope of arbitration – disputes involving statutory interpretation and public policy fall within court’s province and cannot be compelled to arbitration absent clear agreement; * Procedural requirements – timing (appearance before WSD) and applicant’s willingness to arbitrate relevant to stay application.
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19 October 2005 |
(From the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam, Kalegeya, 1, dated 30 July 2002, in Commercial Case number 69 of 2002) Civil Practice and Procedure - Jurisdiction of the Court - Pecuniary jurisdiction - Determination of pecuniary jurisdiction of the Courts - Whether general damages erroneously quantified may affect the jurisdiction of the Court |
19 October 2005 |
| September 2005 |
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Failure to plead facts establishing the Court’s jurisdiction is a vital, incurable defect leading to striking out the plaint.
* Civil procedure – Order VII(1)(f) – obligation to plead facts showing Court’s jurisdiction – requirement vital and jurisdictional defects incurable.
* Civil procedure – Order VI r.15 – verification of plaint – signature requirement and curability of defects in copies.
* Procedural rules – distinction between curable irregularities and incurable jurisdictional defects; inherent jurisdiction not a cure for want of jurisdictional pleading.
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19 September 2005 |
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Applicant's attempt to rescind earlier admission via a false affidavit fails; amendment refused with costs.
Civil procedure — Amendment of pleadings — Resiling from admission — Affidavit tainted with untruths cannot support amendment — Failure to reply to counter-affidavit permits adverse inference — Resiling allowed only for genuine mistake of fact.
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16 September 2005 |
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An after-the-fact application to admit rejected documents is an impermissible review of an interlocutory order.
* Civil Procedure – leave to produce documents – Order VII r18(1) – leave must be sought before introducing documents into evidence.
* Civil Procedure – interlocutory orders – Section 78(2) (as amended by Act No.25/2002) bars review/revision of interlocutory orders.
* Civil Procedure – compliance with Order VIII A r4 and Order VIII B – requirement to obtain departure from scheduled hearing dates.
* Procedural competence – post-rejection applications may amount to impermissible review and are incompetent.
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8 September 2005 |
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High Court lacked jurisdiction to stay a tax-related restraint order; the Tax Appeals Board provides the exclusive statutory remedy.
Tax law – exclusive jurisdiction of Tax Revenue Appeals Board under Tax Revenue Appeals Act; Stamp duty disputes; Stay of execution – remedy available under section 16(6); Civil Procedure – Order XXXIX inapplicable to tax restraint orders; Incompetence for citing wrong provisions.
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2 September 2005 |
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Whether the defendant was the plaintiffs' shipping agent and entitled to US$123,000; court found no agency and no proof of fraud.
* Agency law — shipping agency — absence of written agency agreement and requirement of evidence for implied agency. * Recovery of agency fees — necessity of proper pleading and filing of claims/counterclaims. * Allegation of fraud in procuring services — burden of proof on party alleging fraud; insufficient proof. * Payment of port charges by principal’s operator (COMACO) following admission of liability.
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2 September 2005 |
| August 2005 |
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Stay refused where only part of claim fell under arbitration clause and petitioner failed to satisfy conditions.
Arbitration – stay of court proceedings – scope of arbitration clause – partial coverage of claims (printing works vs crane) – conditions for stay pending arbitration (written submission, coverage, parties bound, absence of inconsistent steps, willingness to arbitrate) – Article 107A duty to expedite cases – stay refused where conditions unmet and partial arbitration would delay justice.
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16 August 2005 |
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Court enforces unpaid bank loan, confirms compound interest, and awards decretal sum with interest and costs.
* Banking law – loan facility – default and accounting of deposits and debits – computation of outstanding balance. * Commercial lending – compound interest permissible; monthly capitalization accepted as established banking practice. * Guarantee – personal guarantor liable jointly and severally with borrower. * Reliefs – pre‑judgment and post‑judgment interest and costs awarded.
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12 August 2005 |
| July 2005 |
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Court ordered Tshs 15,000,000 security for costs due to respondent's uncertain residence and lack of immovable property.
Civil procedure – security for costs – Order XXV(1) and section 95 CPC – discretion to order security – requirements: non-residence and no immovable property – assessment and quantum of security – effect of unsubstantiated asset valuations and tax claims.
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29 July 2005 |
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Court ordered security for costs where a foreign plaintiff lacked immovable assets and claimed movable assets were unreliable.
* Civil procedure — Security for costs — Order XXV r.1 & Section 95 Civil Procedure Code — foreign plaintiff without immovable property — adequacy and realizability of movable assets — court's discretion to order security and bind amount to pleadings.
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29 July 2005 |
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Court ordered addition of company as co‑plaintiff, finding locus standi, a disclosed cause of action, and proper commercial jurisdiction.
Civil procedure — preliminary objections: locus standi and joinder/addition of party under Order 1 R.9 and R.10(1) CPC; cause of action sufficiency; jurisdiction of Commercial Division versus Land Division.
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26 July 2005 |
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A claim for damage to a vehicle impounded under customs law falls within the TRA Board’s exclusive jurisdiction, barring the High Court.
* Revenue law – Exclusive jurisdiction – Tax Revenue Appeals Board's sole original jurisdiction over civil disputes arising from revenue laws administered by the Tanzania Revenue Authority (Tax Revenue Appeals Act s.7; TRA Act s.5A/s.6).
* Customs – Seizure and retention of vehicles under East African Customs Act – damage while in custody constitutes dispute arising from revenue law.
* Civil procedure – Abuse of process – amendment of pleadings to pre-empt a pending jurisdictional preliminary objection improper.
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8 July 2005 |
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Interim injunction granted to protect registered PHILIPS trade mark against alleged counterfeit sales; costs awarded to applicant.
Trade mark injunction — interlocutory relief — arguable case/serious question to be tried — irreparable injury to goodwill — balance of convenience — innocent infringer and costs.
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6 July 2005 |
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An ex parte injunction obtained by concealment of material facts may be set aside for violating the clean-hands requirement.
* Civil procedure — temporary injunctions — requirements: prima facie case, irreparable injury, balance of convenience.
* Ex parte injunctions — duty of full and frank disclosure; non-disclosure vitiates interim relief.
* Equity — clean hands doctrine bars relief obtained by concealment of material facts.
* Allegations of perjury/perversion of course of justice — to be pursued in criminal process, not by civil injunctive application.
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4 July 2005 |
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Court awarded reduced outstanding debt and statutory interest despite no contractual interest provision.
Commercial law – credit sales of petroleum products – account reconciliation and adjustments for payments; evidence and authenticity of a bounced cheque; effect of final demand on cessation of supplies; entitlement to interest on judgment debt under s.29 Civil Procedure Code and Order XX, and appropriate rates in commercial disputes.
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1 July 2005 |
| June 2005 |
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Court refused liquidator's bid to pre-emptively restrain respondent's court access and compel large security deposits.
* Civil procedure – preliminary objections – jurisdiction to grant pre-emptive declaratory and preventive orders restraining future litigation * Constitutional law – right of access to courts and fair hearing – limits on pre-emptive curtailment * Attachment/ancillary relief – security/deposit orders and attachment-before-judgment principles in absence of pending suit * Practice – challenges to affidavits should be by strike-out applications, not preliminary objection
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30 June 2005 |
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An applicant cannot pursue a review and an appeal simultaneously; pending Court of Appeal proceedings deprive the High Court of jurisdiction.
Civil procedure – review v. appeal – Order XLII, Civil Procedure Code – exclusivity of review where no appeal is preferred; jurisdictional bar where same matter is pending in Court of Appeal; abuse of process/forum shopping.
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29 June 2005 |
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Extension to appeal dismissed; applicants should have sought a Court of Appeal reference rather than High Court relief.
Companies law – liquidation – appeals under section 220 Companies Ordinance – extension of time to file notice and apply for leave; procedural requirements for appeals; effect of Court of Appeal precedent and remedy when single-judge decision departs from three-judge decision; competency of affidavits – non-party deponency.
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27 June 2005 |
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Repeated unexplained adjournment requests to secure an overseas witness were refused under O.17 CPC to prevent undue delay.
Civil procedure – Adjournment – Repeated, unexplained requests to procure an overseas witness – O.17 CPC (as amended) – Court’s power to proceed where a party fails to produce evidence – Case management/speed-track enforcement.
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20 June 2005 |
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Plaintiff failed to prove overdraft quantum or default; suit dismissed and overpayment refunded.
* Banking law – overdraft facility – requirement to prove quantum and separate principal from interest
* Evidence – burden of proof on plaintiff to establish amount claimed; documentary proof required for multiple facilities
* Contract/Guarantee – existence of mortgage and personal guarantees; guarantor liability contingent on proven default by principal debtor
* Bank statements – unexplained discrepancies between different system-processed statements undermine claim
* Relief – dismissal for failure to prove debt; refund of overpayment and discharge of securities
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17 June 2005 |
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A defective, argumentative memorandum of review failing Order XLII grounds is dismissed with costs.
Civil procedure – Review under Order XLII – formal requirements of memorandum of review; grounds for review (new evidence, mistake on face of record, other sufficient cause); competency of affidavits – objection may be raised without counter-affidavit; striking out remedyable by fresh application, not by review.
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13 June 2005 |
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The defendant must pay the unpaid repair balance, storage and damages, and remove the abandoned vessel within 60 days.
Contract — repair contract revised downward; payment evidence — bank slips and statements established part payments; outstanding balance determined. Dockyard/storage — prolonged occupation caused loss; plaintiff entitled to storage costs and damages though claimed quantum reduced. Relief — order for removal within 60 days or plaintiff empowered to dismantle at defendant’s cost. Interest and costs — decretal sums to carry 7% per annum interest and plaintiff awarded costs.
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7 June 2005 |
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A chamber summons supported by affidavits that fail statutory jurat and verification formalities is incompetent and struck out.
Civil Procedure – Chamber summons – requirement of affidavit support (Order XLIII r.2 CPC); Affidavit formalities – jurat must state place and date (Notaries Public and Commissioner for Oaths Ord. Cap.12 s.8); Verification clause must be signed by deponent; Defective affidavits render proceedings incompetent – chamber summons struck out with costs.
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3 June 2005 |
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A valid credit account and admitted memorandum established indebtedness; allowable credits reduced liability to Tshs.153,755,408.50 plus interest and costs.
• Commercial law – credit supply of goods and services – recognition of account statements and memorandum of understanding as proof of indebtedness.
• Contract law – effect of termination of repayment memorandum on admitted debt – termination for non-performance does not void admission.
• Set-off and credits – invoice-based credits and surrendered goods may be deducted if proved; failure to invoice defeats claimed credit.
• Civil procedure – struck-out counterclaim cannot be reintroduced; documents not annexed/discovered are inadmissible; late rejoinder struck out.
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3 June 2005 |
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Plaintiff awarded unpaid loan principal; contractual interest and general damages denied for lack of evidence, interest fixed at 12% p.a.
* Commercial law – loan recovery – proof of loan and payments – ex parte proof where defendant fails to defend. * Remedies – principal recovery awarded; general damages denied for lack of evidence. * Interest – contractual interest requires evidential basis; court awarded 12% per annum in absence of proven contractual rate.
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3 June 2005 |
| May 2005 |
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The plaintiff was entitled to pre-judgment interest under s.29; claimed 25% reduced to 20% pre-judgment and 7% post-judgment.
Civil Procedure Code s.29 – power to award pre-judgment interest; Pre-judgment interest – entitlement and rate determination; Interest as damages – not established; Commercial practice and currency devaluation – evidentiary requirement; Judicial discretion to reduce excessive claimed interest rates.
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24 May 2005 |
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Bank proved overdraft indebtedness except three unexplained debits; plaintiff awarded balance, interest and costs.
Commercial law – Bank overdraft and guarantor liability – Proof of indebtedness by bank statements – Effect of transfer between banking software – Burden to prove repayment – Unexplained bank debits excluded – Interest and enforcement rights awarded.
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17 May 2005 |
| April 2005 |
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Affidavit struck out for defective jurat; interim orders dismissed because they would affect a non‑party and were substantive, not preservative.
Notaries/Commissioner for Oaths – jurat must show date and parties must be served with documents identical to those filed; Interim relief – temporary injunctions must preserve status quo and should not be issued to affect non‑parties; Substantive relief not appropriate by way of interim application.
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19 April 2005 |
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Applicant failed to prove entitlement to receivership or interim injunctive relief; application dismissed with costs.
Commercial procedure – appointment of receiver – discretionary remedy; temporary injunction – requirements (prima facie right, irreparable harm, balance of convenience) – Atilio v Mbowe and authorities; alleged voidable share sale and coercion; risk of asset dissipation; adequacy of affidavit evidence.
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15 April 2005 |
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Temporary injunction refused where trademark similarity and irreparable harm required factual trial evidence, not affidavit submissions.
* Trade marks – interlocutory relief – temporary injunction – whether prima facie case, irreparable harm and balance of convenience established – factual issues of resemblance and passing-off require trial evidence; injunctions in trademark disputes to be granted sparingly.
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15 April 2005 |
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Preliminary objection for failure to serve mortgage notice dismissed; pleadings must be amended to include mandatory date and place.
Commercial law – mortgage security – statutory notice under s.127 Land Act; pleadings – mandatory dating under O. VI r.15(3) CPC; amendment under GN 228 of 1971; preliminary objection on mixed law and fact dismissed.
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12 April 2005 |
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The applicant's defective plaint verification and missing advocate signature were curable; amendment ordered and case set for mediation.
Civil Procedure – Order VI r15(3) verification – date and place – Order VI r14 signature of party and advocate – corporate pleadings verified by principal officer (Order XXVIII) – Amendment of plaint under Order VI r17 and proviso to Order VII r11 – curable formal defects.
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1 April 2005 |
| March 2005 |
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General leave to amend permits substantive additions; parallel suit not bar where causes of action differ.
Civil procedure – amendment of pleadings – scope of leave to amend under Order 6 Rule 17 CPC; res subjudice and section 8 CPC – requirement of same matter in issue; commercial cases pending elsewhere – O.IV R.3 (GN.140/1999).
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31 March 2005 |
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The defendant was held liable to pay agreed additional costs caused by post-inspection deterioration; financier endorsement was immaterial.
Contract law – parties to contract; implied term to preserve subject-matter post-inspection; bidder reliance on pre-bid inspection; liability for deterioration caused by contracting authority; admissibility of minutes/invoice as admission of liability; financier endorsement not displacing contracting parties' obligations.
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30 March 2005 |
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Commercial courts retain jurisdiction over debt recovery claims even where repayments are secured by land as collateral.
* Commercial jurisdiction – Debt recovery – Whether pledging land as security converts a commercial debt claim into a land dispute – Held: securities are collateral, cause of action is recovery of money. * Land Act s.167 – Does not oust Commercial Division jurisdiction where claim is for repayment of commercial facilities. * Jurisdiction – Characterisation of cause of action controls, not nature of security.
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30 March 2005 |
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Fraudulent minerals transaction: plaintiffs entitled to restitution of US$93,290.60, interest and costs.
Commercial law – contract induced by fraud – minerals transaction (gold and diamonds) – restitution of monies paid; evidence of receipt through company account; specific damages must be specially proved. Remedies – voidable contract under s.17 & s.19 Law of Contract (Cap 345 R.E.2002); interest awarded (21% pre-judgment, 7% post-judgment) and costs.
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25 March 2005 |
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Claims in foreign currency are permissible if contracted; improperly pleaded counterclaim struck out.
* Civil procedure — Counterclaim — Order VIII r.9 CPC — Counterclaim treated as cross-suit and must comply with Order VII pleading requirements (distinct heading, numbered paragraphs).
* Currency of relief — Pleading and enforcement — Claims in foreign currency are not per se incompetent; earlier decisions on forex concerned execution under strict exchange controls and are distinguishable.
* Remedies — Where parties contract in foreign currency, relief may be claimed and executed in that currency absent agreement to convert.
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24 March 2005 |
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Termination based on a clause prescribing liquidated damages was unlawful; plaintiff awarded specific damages and bond forfeiture reversed.
* Contract law – formation and incorporation of negotiated terms and addenda – specific performance dates established by minutes and addendum.* Contract remedies – distinction between liquidated damages clause and termination clause; purchaser cannot invoke liquidated damages clause as a basis for immediate termination.* Performance bond – forfeiture unlawful where contract clause relied upon does not authorise forfeiture/termination.* Damages – recoverability of specific losses which naturally arise from wrongful termination; refusal of general damages and high commercial interest.* Receivers/manager statutory role – necessary and liable party when a specified public corporation is under receivership/restructuring.
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22 March 2005 |
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Applicant entitled to judgment for proved outstanding vehicle, spare parts and workshop invoices; interest and costs awarded.
Commercial debt recovery – proof of indebtedness by invoices and account statements – oral trust arrangements and unsigned agreements – preliminary objection on limitation previously dismissed – credibility and contradictory defence – adjustment of pleaded sum to proved amounts – award of pre‑ and post‑judgment interest and costs.
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21 March 2005 |
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Objection to sale of matrimonial home mortgaged without spouse's consent dismissed where mortgage predates Land Act and purchaser had no notice.
Matrimonial home — Law of Marriage Act s.59 — spouse’s consent for mortgage; Land Act non-retrospectivity — s.183 — pre-existing transactions preserved; protection of bona fide mortgagee/decree-holder without notice where no caveat; timing of objection to sale in execution.
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18 March 2005 |
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Court upheld Taxing Master’s discretionary reduction of instruction fee to T.shs 3,000,000/= and dismissed the challenge.
Advocates’ Remuneration and Taxation of Costs Rules (GN 515/1991) – Taxation of instruction fees – Taxing Master’s discretion – taxation by reference to liquidated amount – limits on appellate interference absent manifest excess or misdirection.
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3 March 2005 |
| February 2005 |
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Insurer’s repudiation for alleged fraud unjustified; written policy deleted extensive clauses and plaintiff awarded indemnity sums with interest.
Insurance – construction and interpretation of policy – effect of written policy and Evidence Act ss.100–101; Insurance – fraud – higher civil standard of proof required for repudiation under fraud clause; Insurance – indemnity vs reinstatement; Tendering – validity of contractor appointment and relevance to quantum.
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25 February 2005 |
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Mortgages over matrimonial homes are invalid without spousal assent and lenders must inquire; fraudulent mortgage deeds cannot encumber land.
Land law – mortgage of matrimonial home – spouse's assent required (Law of Marriage Act s.59; Land Act ss.112,161) – lender’s duty to inquire – fraudulent mortgage executed by a fictitious/deceased person void – evidentiary standard to rebut presumption of sole ownership (Law of Marriage Act s.60).
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22 February 2005 |
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Court dismissed stay to arbitration as it would defeat an earlier amendment order and ordered extension application to be argued.
Arbitration clause – scope and applicability to national interconnection disputes; s.6 Arbitration Ordinance – timing for petition to stay proceedings; judicial discretion to refuse stay where prior court order creates a single suit; extension of time to file defence – permissibility under proviso to O.43(2) CPC.
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22 February 2005 |
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Whether a consent order finally disposed the dispute including the counter-claim, certified to the Court of Appeal for guidance.
* Contract law – sale agreement and Deed of Variation – effect of variations and payment defaults
* Civil procedure – consent orders – whether a consent order can finally dispose of both claim and counter-claim
* Res judicata and finality – interplay between consent orders, withdrawal of counter-claims and subsequent fresh suits
* Procedural strategy – certification of points of law to the Court of Appeal where prior rulings risk conflicting outcomes
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15 February 2005 |