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53 judgments found.
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December 2005
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 — improper service of summons with plaint and counsel’s bereavement accepted as good cause — right to be heard
— application allowed
— no prejudice to respondent
2 December 2005
The court dismissed preliminary objections of subjudice, res judicata and lack of locus standi for lack of proof and prematurity.
Civil procedure — Locus standi — pleadings contested may be tested at trial rather than by expungement at preliminary stage
Civil procedure — Preliminary objections — sub judice: burden to prove pending appeal before striking out
Civil procedure — Res judicata
— different parties/amounts negate application
— requires same parties and same cause of action
1 December 2005
October 2005
Suit stayed as res sub judice; corporate-sanction and damages objections dismissed as factual, not pure points of law.
Civil procedure — Costs — dismissal of non-justiciable preliminary objections with costs. Reliance on Court of Appeal authority (Citibank Tanzania Ltd v TTCL & Others)
Civil procedure — Preliminary objections
— corporate resolution authorisation and quantum/character of damages are factual matters
— distinction between pure points of law and factual issues requiring evidence
Civil procedure — Res sub judice — stay of proceedings
26 October 2005
The applicant's intervention and enjoinder application was struck out given pending arbitration and affidavit defects.
Civil procedure — Intervention and enjoinder
19 October 2005
Court refused stay for arbitration because dispute raised statutory interpretation and public policy issues for the court.
Arbitration
— Procedural requirements — timing (appearance before WSD) and applicant’s willingness to arbitrate relevant to stay application
— Scope of arbitration — disputes involving statutory interpretation and public policy fall within court’s province and cannot be compelled to arbitration absent clear agreement
— stay pending arbitration
19 October 2005
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
Commercial law — 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)
19 October 2005
September 2005
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 r15 — verification of plaint — signature requirement and curability of defects in copies
Civil procedure — Procedural rules
— distinction between curable irregularities and incurable jurisdictional defects
— inherent jurisdiction not a cure for want of jurisdictional pleading
19 September 2005
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 — Resiling allowed only for genuine mistake of fact
16 September 2005
Applicant cannot seek leave to admit documents after court rejected them; interlocutory orders are not reviewable.
Civil procedure
— production of documents — Order VII r.14/18 and Order XIII r.1 — Leave must be sought before introducing documents
— interlocutory orders — Section 78(2) CPC (Act No.25 of 2002) — No jurisdiction to review interlocutory orders
— non‑compliance with scheduling orders — Departure from scheduled resumption — Requirement under Order VIII A r.4 and Order VIII B
8 September 2005
High Court lacked jurisdiction to stay a tax-related restraint order; the Tax Appeals Board provides the exclusive statutory remedy.
Civil procedure
— Incompetence for citing wrong provisions
— Order XXXIX inapplicable to tax restraint orders
Customs law
— Stamp duty disputes
— Stay of execution — remedy available
2 September 2005
Whether the defendant was the plaintiffs' shipping agent and entitled to US$123,000; court found no agency and no proof of fraud.
Commercial law — Agency law — shipping agency
Criminal law — 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
2 September 2005
August 2005
A stay was refused because only part of the respondent's claim was arbitrable and the applicant failed to show willingness to arbitrate.
Arbitration — Stay of proceedings pending arbitration — scope of arbitration clause — Arbitration Act (Cap.15)
16 August 2005
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 law — Commercial lending
— compound interest permissible
— monthly capitalization accepted as established banking practice
Contract law — Guarantee — personal guarantor liable jointly and severally with borrower
12 August 2005
July 2005
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
29 July 2005
Court ordered security for costs where a foreign plaintiff lacked immovable assets and claimed movable assets were unreliable.
Civil procedure — security for costs
29 July 2005
Court allowed amendment to add company as plaintiff, finding jurisdiction and a disclosed cause of action.
Civil procedure
— Locus standi — Misidentification of parties — Addition of party under Order 1 R.9 & R.10(1) CPC
— Cause of action — Sufficiency of plaint and annexures to show cause of action
Jurisdiction — High Court (Commercial Division) — Distinction between land disputes and contractual disputes
26 July 2005
A claim for damage to a vehicle impounded under customs law falls within the TRA Board’s exclusive jurisdiction, barring the High Court.
Civil procedure — Abuse of process — amendment of pleadings to pre-empt a pending jurisdictional preliminary objection improper
Customs law — Customs — damage while in custody constitutes dispute arising from revenue law
8 July 2005
Interim injunction granted to registered trade‑mark owner after Court found an arguable infringement and balance of convenience favoured the applicant.
Intellectual property law — Trade mark infringement — interim injunction — prima facie case, irreparable harm to goodwill and public safety
Civil procedure
— interim relief — competence of affidavit support for Chamber applications — Role of affidavits and not deciding contested facts at interlocutory stage
— Costs — an innocent infringer is not automatically exempt from costs when injunctive relief is granted
6 July 2005
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
4 July 2005
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
— entitlement to interest on judgment debt under s.29 Civil Procedure Code and Order XX, and appropriate rates in commercial disputes
— evidence and authenticity of a bounced cheque
1 July 2005
June 2005
Court refused pre‑emptive restraints on litigation and denied security deposits, upholding access to courts.
Civil procedure
— Premature proceedings — Pre‑emptive declaratory orders restraining future litigation — Jurisdiction and access to courts
— security for costs — procedural requirements for supporting affidavits — Proper procedure and timing for ordering security
Company law — winding up — Court's supervisory jurisdiction over liquidator's powers — Availability of deposit orders absent pending suit/attachment
30 June 2005
An aggrieved party cannot pursue review and appeal simultaneously; pending Court of Appeal proceedings divest High Court jurisdiction.
Civil procedure
— Review vs appeal — review cannot substitute for an appeal — Civil Procedure Code, Order XLII, s.78
— Jurisdiction — Lodging of notice of appeal in the Court of Appeal divests the High Court of jurisdiction — Avoidance of conflicting decisions
29 June 2005
Extension to appeal dismissed; applicants should have sought a Court of Appeal reference rather than High Court relief.
Company law — Companies law — liquidation — appeals
— extension of time to file notice and apply for leave
— procedural requirements for appeals
Company law — competency of affidavits — non-party deponency
27 June 2005
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
20 June 2005
Plaintiff failed to prove overdraft quantum or default; suit dismissed and overpayment refunded.
Banking law — documentary proof required for multiple facilities Contract/Guarantee — existence of mortgage and personal guarantees
Banking law — 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
Banking law — overdraft facility — burden of proof on plaintiff to establish amount claimed
17 June 2005
A defective, argumentative memorandum of review failing Order XLII grounds is dismissed with costs.
Civil procedure — competency of affidavits
— objection may be raised without counter-affidavit
— striking out remedyable by fresh application, not by review
Civil procedure — Review
— formal requirements of memorandum of review
— grounds for review (new evidence, mistake on face of record, other sufficient cause)
13 June 2005
Defendant ordered to pay outstanding repair balance, assessed storage/damage sums, and remove abandoned vessel or face dismantling.
Commercial law
— Contract — Recovery of unpaid invoices and declaration of breach — Quantification of outstanding contractual sum and denial of forfeiture
— Contract for storage services — Storage charges and loss of business arising from prolonged occupation of naval dockyard — Assessment of quantum
— Remedies — Order to remove abandoned vessel and alternative right to dismantle and recover costs — Interest and enforcement
7 June 2005
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
— Defective affidavits render proceedings incompetent — chamber summons struck out with costs
3 June 2005
Whether a memorandum and account records established a debt recoverable after partial non-cash repayments.
Commercial law
— Contract — Credit facility and account management — Memorandum acknowledging debt, evidential weight of account statements
— Settlement of debt — Part‑payment and set‑off by non‑monetary performance — Proof and limits of set‑off
3 June 2005
Plaintiff awarded unpaid loan principal; contractual interest and general damages denied for lack of evidence, interest fixed at 12% p.a.
Civil procedure — Remedies
— general damages denied for lack of evidence
— principal recovery awarded
Commercial law — Loan recovery — proof of loan and payments — ex parte proof where defendant fails to defend
3 June 2005
May 2005
The plaintiff was entitled to pre-judgment interest under s.29; claimed 25% reduced to 20% pre-judgment and 7% post-judgment.
Civil procedure — Civil procedure code s.29 — power to award pre-judgment interest
Civil procedure — Commercial practice and currency devaluation
— evidentiary requirement
— Judicial discretion to reduce excessive claimed interest rates
Civil procedure — Interest as damages — not established
Civil procedure — Pre-judgment interest — entitlement and rate determination
24 May 2005
Bank recovered overdraft minus unproven statement debits; interest awarded and enforcement against security permitted.
Banking law — overdraft facility — evidence of existence and continuity of facilities — Consideration of credibility of bank statement entries transferred between computer systems
Commercial law — Loan facility, guarantee and mortgage — proof of loan, guarantor's liability and enforceability of security
Evidence — Documentary evidence — Annexures to pleadings are not evidence unless formally tendered and admitted during trial — Requirement to produce supporting documents for disputed bank statement entries
17 May 2005
April 2005
Interim orders affecting a non‑party and affidavits with defective jurats are impermissible; chamber application dismissed.
Civil procedure
— Interim injunction — Competence and necessary parties
— preservation of status quo — Substantive orders not appropriate as temporary measures
Evidence — Affidavit jurat — omission of date/place (and deponent identification)
19 April 2005
Applicant failed to prove entitlement to receivership or interim injunctive relief; application dismissed with costs.
Commercial law — Commercial procedure — appointment of receiver — discretionary remedy
Commercial law — Temporary injunction — requirements (prima facie right, irreparable harm, balance of convenience)
— adequacy of affidavit evidence
— alleged voidable share sale and coercion
— Atilio
— risk of asset dissipation
15 April 2005
Temporary injunction refused where trademark similarity and irreparable harm required factual trial evidence, not affidavit submissions.
Intellectual property law — Injunctions in trademark disputes to be granted sparingly
15 April 2005
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
Commercial law — pleadings
— amendment
— mandatory dating
— preliminary objection on mixed law and fact dismissed
12 April 2005
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
1 April 2005
March 2005
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).
31 March 2005
The applicant was awarded additional costs after the respondent admitted responsibility for equipment deterioration.
Contract law — implied terms — Liability where contracting authority’s use caused deterioration of subject matter after pre-bid inspection
Contract law — Parties to contract — financier’s endorsement does not make financier a party — Written contract governs
Contract law — written admission of indebtedness
— Admission of liability
— arrangement to pay within 120 days
— interest and costs
30 March 2005
Commercial courts retain jurisdiction over debt recovery claims even where repayments are secured by land as collateral.
Civil procedure — Commercial jurisdiction — Debt recovery — Whether pledging land as security converts a commercial debt claim into a land dispute
30 March 2005
Fraudulent minerals transaction: plaintiffs entitled to restitution of US$93,290.60, interest and costs.
Civil procedure — Remedies
— interest awarded (21% pre-judgment, 7% post-judgment) and costs
— voidable contract
Commercial law — contract induced by fraud — minerals transaction (gold and diamonds)
— evidence of receipt through company account
— restitution of monies paid
25 March 2005
Claims in foreign currency are permissible if contracted; improperly pleaded counterclaim struck out.
Civil procedure
— Counterclaim
— Remedies — Where parties contract in foreign currency, relief may be claimed and executed in that currency absent agreement to convert
24 March 2005
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
22 March 2005
Applicant entitled to judgment for proved outstanding vehicle, spare parts and workshop invoices; interest and costs awarded.
Commercial law — Commercial debt recovery
— adjustment of pleaded sum to proved amounts
— award of pre‑ and post‑judgment interest and costs
— credibility and contradictory defence
— oral trust arrangements and unsigned agreements
— preliminary objection on limitation previously dismissed
— proof of indebtedness by invoices and account statements
21 March 2005
Objection to sale of matrimonial home mortgaged without spouse's consent dismissed where mortgage predates Land Act and purchaser had no notice.
Family law — Land Act non-retrospectivity
— pre-existing transactions preserved
— protection of bona fide mortgagee/decree-holder without notice where no caveat
— timing of objection to sale in execution
Family law — Matrimonial home — spouse’s consent for mortgage
18 March 2005
Court refuses to disturb Taxing Master’s exercise of discretion in taxing an instruction fee on a liquidated claim.
Civil procedure — Taxation of costs
— instruction fees — Discretion of taxing officer
— whether damages are liquidated or unliquidated for purposes of applying schedules under GN 515/91 — Appropriate application of schedule for instruction fee calculation
3 March 2005
February 2005
Insurer’s repudiation for alleged fraud unjustified; written policy deleted extensive clauses and plaintiff awarded indemnity sums with interest.
Insurance law — Insurance
— construction and interpretation of policy
— fraud — higher civil standard of proof required for repudiation under fraud clause
— indemnity
Insurance law — Tendering — validity of contractor appointment and relevance to quantum
25 February 2005
Mortgage of a matrimonial home is invalid without spouse's assent; forged mortgage instruments cannot encumber land.
Land law
— Mortgage of matrimonial home — Spouse consent required before mortgage can be validly taken over a matrimonial dwelling — Lenders' duty to inquire (Land Act ss.112, 161; Law of Marriage Act s.59)
— Impersonation and forgery — Nullity of mortgage and facility letter — Forged instruments cannot encumber land
Evidence — Burden to prove separate ownership — Requirement of clear proof of financial or other contributions to rebut presumption of sole ownership (Law of Marriage Act s.60)
22 February 2005
Court dismissed stay to arbitration as it would defeat an earlier amendment order and ordered extension application to be argued.
Arbitration — Arbitration clause — scope and applicability to national interconnection disputes
Arbitration — extension of time to file defence — permissibility
Arbitration — s.6 Arbitration Ordinance
— judicial discretion to refuse stay where prior court order creates a single suit
— timing for petition to stay proceedings
22 February 2005
Whether a consent order finally disposed of the dispute or left the counter‑claim triable separately.
Civil procedure
— Consent orders — Effect on counter‑claim and finality of proceedings
— Counterclaim — Legal effect of withdrawal where prior consent order appears to have disposed of dispute
— Court of Appeal — Certification of questions on effect of consent order and subsequent procedural steps
15 February 2005