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99 judgments found.
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December 2011
A factual dispute over service of a notice of appeal makes a preliminary objection inappropriate and is dismissed.
Civil procedure — preliminary objection
Civil procedure — Service of Notice of Appeal — factual issue requiring evidence, not to be determined on preliminary objection
Civil procedure — Stay of execution
— application to High Court
— Court of Appeal Rules on service of notice not dispositive of a High Court stay application
29 December 2011
Landing contractor liable for negligence; plaintiff awarded customs‑value refund, general damages, interest and costs.
Tort — Negligence
— custody liability for pilferage
— duty of care of landing contractors for containers and contents
Tort — valuation of lost cargo
— assessment of general damages and interest (pre‑ and post‑judgment)
— customs‑declared value preferred over inadmissible pro forma invoice
29 December 2011
An arbitration clause does not oust court jurisdiction; a defendant must promptly seek a section 6 stay before taking steps.
Arbitration — Arbitration clause
— contractual referral to arbitration (Mauritius)
— court's discretion to enforce arbitration agreement
— effect on court jurisdiction
— stay of proceedings
29 December 2011
Court allows amendment to cure verification-clause and scanned-signature defects in pleadings; costs in the cause.
Civil procedure
— amendment of pleadings — leave to amend to cure lack of verification clause and scanned signatures
— Doctrine of pre-emption — amendment after objection not allowed if used to circumvent objection, but not engaged where application follows court ruling and no pending attempt to evade
— inherent powers s.95 CPC — ends of justice and prevention of abuse — justification for allowing procedural amendments
— Pleadings — procedural/form defects curable by amendment
23 December 2011
Expiry of a speed track does not automatically terminate a suit; court may amend the scheduling order in the interests of justice.
Civil procedure — Amendment or limited departure from pre‑trial directions in the interests of justice and expedition — Whether formal application and limitation
Civil procedure — Scheduling orders — Speed Track III (14‑month life span) — When the life span runs and consequences of expiry
Civil procedure — Scheduling orders and speed tracks — Departure from expired scheduling order
— court discretion to amend scheduling order
— Striking out versus extension
20 December 2011
A limitation objection requiring factual inquiry fails as a preliminary point; defective verification of a plaint is curable by amendment.
Civil procedure
— Order VI r15 — verification of pleadings
— Preliminary objections — Mukisa Biscuit test
Limitation law — accrual of cause of action — whether time bar can be decided on preliminary objection where factual determination required
19 December 2011
Taxing master reduced the applicant's claimed instruction and appearance fees, taxing the bill to TZS 8,115,000.
Civil procedure
— Costs — appearances for mention, ADR, and hearings — appropriate rates and compensatory purpose of costs
— Taxation of costs — assessment of instruction fees — factors: suit amount, complexity, time, research and parties’ conduct
Legal profession — Advocates’ remuneration — GN 515/91 scales outdated — taxing master may deviate guided by principles of fairness
16 December 2011
November 2011
Whether the borrower defaulted and guarantors are jointly liable to repay the bank under the debenture.
Commercial law — loan facilities and security — Default on loan and guarantor liability — Recovery of outstanding principal, contractual penalty interest and enforcement of debenture
25 November 2011
Oral hire agreement proved by logbooks and emails; defendant liable for unpaid invoices with interest and costs.
Contract law
— breach for non‑payment — Non-payment of invoices for hired equipment — Liability to compensate under Law of Contract Act (s 70/73)
— Interest — award of commercial pre‑judgment and post‑judgment interest — Pre-judgment interest at 21% and post-judgment interest at court rate (awarded until payment)
— oral hire agreement — admissibility and effect of contemporaneous or subsequent written worksheet — written document cannot qualify or contradict a wholly oral contract unless shown to form part of the parties' agreement
24 November 2011
A written contract was proved but plaintiff failed to prove payment; claim dismissed with costs.
Civil procedure — ex parte proof — Burden of proof remains on party alleging facts in their favour
Contract law — Sale of goods — Evidence of sale (written sale agreement, bank receipt, shipping and inspection documents) establishes purchase and payment
Evidence — burden of proof in civil cases — claimant's duty to prove claim
21 November 2011
A commercial MOU was binding; the respondent wrongfully terminated it, entitling the applicant to damages and return of equipment.
Contract law — Breach — wrongful termination where claimant delayed only modestly and respondent had delayed provision of specifications
Contract law — Damages
— award for lost rental income
— return of equipment ordered
— specific performance declined where third‑party occupation
Contract law — Memorandum of Understanding — commercial MOU held binding where document and conduct show intention to create legal relations
21 November 2011
Court allowed applicant to amend defence to introduce newly discovered banking documents on cheque presentation.
Civil procedure
— amendment of pleadings
— Newly discovered documentary evidence (bank pay-in slip, submission sheets) — relevance to negligence and contributory negligence
— Prejudice and delay — remedied by conditional timelines and costs
18 November 2011
A defendant who is a stranger to a bill of lading has no cause of action against the carrier; third party notice dismissed.
Civil procedure — Preliminary objections — Preliminary objection on jurisdiction — Enforcement of exclusive forum‑selection clauses
Maritime law
— Carriage of goods by sea — Limitation of actions — Hague Rules/art.3(6) one‑year limitation to bring suit against carrier
— bill of lading — Privity of contract and whether a stranger may sue on a bill of lading
11 November 2011
Omission to properly sign/verify pleadings by a party is a procedural defect and may be cured by amendment; defendants ordered to amend within seven days.
Civil procedure
— Amendment — Omission to sign or verify pleadings is procedural and curable by amendment before judgment
— Signature and verification of pleadings — Whether an advocate's statement of authorization suffices to sign and verify pleadings — Order VI r.14 & Order XXVIII r.1 CPC
10 November 2011
Court allowed arrest and six‑month committal for failure to pay decretal instalments, ordering upfront prison subsistence payment.
Civil procedure
— Default to comply with consent decree — Effect of failure to pay instalment immediately activates execution remedies
— Execution of decree — arrest and detention as mode of execution — Order XXI r 5(2) CPC
Prison law — Prisoners — Decree holder to pay prisoner's daily subsistence allowance upfront
8 November 2011
October 2011
A bank unlawfully returned a customer's cleared cheque; the customer awarded damages for lost opportunity.
Banking law — banker
— customer relationship
— damages for lost opportunity
— duty to notify customer
— duty to seek court clarification where orders conflict
— interest and costs
— negligence and breach of contract
— wrongful debit/return of cleared cheque
27 October 2011
Courts require leave before suing a specified public corporation; failure to obtain leave results in striking out.
Administrative law — Public corporations — requirement of leave to sue specified public corporations
Civil procedure — preliminary objection — court may strike out suit for failure to comply with mandatory statutory prerequisites
25 October 2011
Municipal revenues (including bank deposits) are protected from garnishee; Director must pay award from council revenue.
Civil procedure
— Execution — executing court determines execution disputes
— Interest — computation and commencement of 23% compound interest
24 October 2011
A collecting bank that clears a cheque but credits proceeds to the wrong account is liable for conversion and must refund the drawer.
Banking law — Bills of Exchange Act s.85(1)
— limits of exoneration
— measure of remedies and refusal of general damages for unproved reputational loss
Banking law — collecting banker’s liability — deposit and clearance of banker's cheque
— conversion where proceeds credited to wrong account
— duty to act in good faith and with care
— evidence of forgery and competing instruments
21 October 2011
Request for clarification is not a statutory complaint; PPAA acted without jurisdiction, out of time and unreasonably, so its decision was quashed.
Procurement law — mandatory time limit s.82(5) — non‑compliance renders decision ultra vires
Procurement law — Public procurement — clarification requests — jurisdiction of PPRA/PPAA
Procurement law — suspension under s.84(3)
— procedural requirement
— quashing of PPAA decision
21 October 2011
20 October 2011
A lessor who succeeds to an operator’s contracts on termination is liable for assigned surviving payment obligations and bound by an adjudicator’s award.
Civil procedure — Arbitration/adjudication — Binding effect of adjudicator's award on successor in interest — Assignee liable for adjudicated sums relating to assigned obligations
Contract law — Assignment of contractual rights — Whether obligations surviving termination are assignable under lease clause 56.5 — Law of Contract Act ss 62, 65
7 October 2011
7 October 2011
Court granted a Mareva-style interlocutory freezing order and bank statements despite an arbitration clause, finding risk of dissipation.
Commercial law — interlocutory relief
— arbitration clause does not bar court from granting interim preservation orders where no stay obtained
— bank statement production ordered
— exigency, prima facie debt, risk of dissipation, balance of convenience
— Mareva freezing orders
— Order XXXVII Rule 8 and inherent jurisdiction
7 October 2011
Prior employment alone does not disqualify counsel; concrete evidence of conflict is required to bar representation.
Legal profession
— Conflict of interest — former in‑house counsel — whether prior employment alone disqualifies counsel
— Standard of proof for disqualification — suspicion insufficient
— Timeliness of objection — late objections weaken disqualification claims
5 October 2011
September 2011
Whether directors can be sued alongside their company is a mixed law-and-fact issue requiring trial.
Banking law — Mistaken credit — Mistaken credits and withdrawals in good faith — Whether defence applies is a factual issue for trial
Civil procedure — preliminary objection — Whether plaint discloses a cause of action — Mixed questions of law and fact require trial
Company law — lifting the corporate veil — criteria for holding directors/shareholders liable for company debts — Whether directors can be sued personally depends on factual inquiry and statutory duties (Companies Act ss 182,185)
29 September 2011
The court dismissed the applicant's challenge to an ICC award, holding arbitrators' decisions final where issues were specifically referred to them.
Arbitration
— Setting aside award — errors of law apparent on face of award
— remission of award — duty of arbitral tribunal to comply with court’s remission directives
Procurement law — Illegality and public policy — Effect of statutory procurement breaches on contract validity and enforcement
28 September 2011
Leave to appeal granted to challenge dismissal of cross-petition for want of prosecution; corrections to affidavit permitted to avoid technicality.
Civil procedure
— concurrent remedies — appeal and review may be pursued but depend on case merits
— Leave to appeal — application for leave to appeal against dismissal of cross-petition for want of prosecution — proper forum to challenge discretionary dismissal
Evidence — Evidence/procedure — correction of affidavit — court may allow corrections to avoid technical obstacles to justice (Article 107A(2)(e))
26 September 2011
A bank dealing in good faith may enforce loans obtained by a company director despite internal limitations on authority.
Banking law — loan facilities — Proof of disbursement via offer letters and bank statements
Company law — apparent authority of agent to bind company — Liability of company for acts of its director and estoppel by conduct — Companies Act ss 36(1), 37
23 September 2011
Ex‑parte judgment for bank for unpaid lease sum with pre‑judgment 28% interest, post‑judgment 12% interest and costs.
Commercial law
— Remedies — decretal sum with contractual and post-judgment interest and costs — Pre-judgment contractual default rate and post-judgment statutory rate
— asset finance/lease — borrower default on repayment obligations under lease/credit facility — Default under lease and recovery of outstanding indebtedness
23 September 2011
Applicant cannot obtain a court-ordered reduction of an uncontested arbitral award at the registration stage.
Arbitration — registration and enforcement of arbitral awards — Proper procedure to contest an award — Scope of court's inherent and equitable powers — Whether court may reduce an arbitral award at registration stage
21 September 2011
Whether an exclusive foreign forum-selection clause ousts local jurisdiction when the contract’s existence is disputed.
Forum-selection clause; exclusive jurisdiction; incorporation by reference of standard terms via commercial invoice; determination of jurisdiction dependent on existence of contract; preliminary objection unsuitable where contract existence is disputed; third-party joinder and indemnity issues procedural.
20 September 2011
Admissions and documentary evidence established loan facilities and securities, entitling the bank to judgment, interest and enforcement of security.
Banking law — overdraft and term loan — existence proved by documentary evidence and admissions in pleadings
19 September 2011
A binding loan and guarantee existed; defendants breached repayment obligations and were ordered to pay principal, interest and costs.
Commercial law — Loan facility, personal guarantee and letter of set‑off
— award of principal, contractual interest and post‑judgment interest
— breach for non‑payment
— costs
— Existence and enforceability of facility and guarantee
— ex parte proof and documentary evidence sufficient to establish liability
19 September 2011
Procedural defects in citation or verification are curable; advocate‑roll complaints raise factual issues requiring evidence.
Civil procedure
— Affidavits — Verification clause — Absence or defect in verification is procedural and curable by amendment
— Summary suit — Leave to defend — Wrong citation of enabling provisions curable by amendment
Legal profession — Advocates act — who drew pleadings raises factual inquiry — Pleadings drawn by person not on roll are factual issues requiring evidence
12 September 2011
Extension of time granted because a serious point of law arose from acting on pleadings drawn by a disqualified advocate.
Extension of time to appeal; sufficient reasons for enlargement; delay caused by counsel's procedural errors; disqualification of advocate under s.7 Notaries Public and Commissioners for Oaths Act; whether court may act on pleadings drawn by a disqualified advocate; right to be heard and public importance of point of law.
6 September 2011
Plaintiff failed to prove delivery; company (not the individual) drew dishonoured cheques; claim dismissed with costs.
Evidence — Contract evidence — supply of goods — adverse inference
Evidence — Dishonoured cheques — drawer company liable
Evidence — Personal liability
— Burden of proof shifts
— Misjoinder/joinder challenge dismissed due to lack of proof
— no proof of individual signature or directorship
5 September 2011
Court ordered winding up where the applicant and respondent were deadlocked and the company had not commenced business.
Company law — winding up
— Failure to commence business within one year — Companies Act s 279(1)(b)
— Just and equitable ground — Companies Act ss.279(1), 281(1), 312, 315
Land law — disputes over letter of offer versus right of occupancy — Proof of title, Certificate of Right of Occupancy as best proof — Land Act s29
2 September 2011
August 2011
Affidavits omitting jurat dates are fatally defective and expunged; scanned signatures differ from electronic signatures and pleadings' procedural defects are curable.
Civil procedure
— Affidavits — Jurat of attestation — place and date mandatory under section 8 Notary Public and Commissioner for Oaths Act
— Pleadings — defects such as missing verification clause and scanned signatures are procedural and curable by amendment with leave
Evidence — Witness statements — Unsworn written witness statements filed without court order not recognised under Order XIX CPC — Expungement
29 August 2011
Court allowed late rejoinder filing under s.93 and inherent powers despite omission to cite s.68(e), granting seven days to file.
Civil procedure
— extension of time — Application for leave to file rejoinder submissions out of time
— s.93 — enlargement of time where practice fixes seven-day rejoinder period
— s.95 — inherent powers to prevent abuse and secure ends of justice
19 August 2011
An unopposed petition supported by a shareholders' resolution warranted voluntary winding up and dissolution under the Companies Act.
Company law — Voluntary winding up — advertisement and absence of objections — Sections 279(1)(a), 282(2)(a), 287, 329
18 August 2011
The respondent’s preliminary objection based on an amicable-settlement clause was dismissed; it did not oust court jurisdiction.
Arbitration — Arbitration act (s.6)
Civil procedure
— preliminary objection — Mukisa test
— Summary procedure (order xxxv) — claim for liquidated sum from dishonoured cheques not mandating prior amicable settlement
9 August 2011
Suit struck out for lack of territorial jurisdiction where cause of action and parties were in Zanzibar.
Civil procedure — territorial jurisdiction
5 August 2011
Application seeking restoration and stay struck out for failure to cite Order IX Rule 13; Order XXI R.27 inapplicable.
Civil procedure
— Combining prayers — not per se fatal (Court of Appeal authority)
— Restoration of dismissed application
— Stay of execution — Order XXI Rule 27 requires a pending suit between decree-holder and judgment debtor
5 August 2011
Ex parte injunctions granted despite notice and wrong legal citation were void; High Court quashed the district court’s orders.
Civil procedure — Application competency — Wrong citation of enabling provision renders application incompetent and orders void ab initio
Civil procedure — Interim injunction
— exception for undue delay where notice would defeat the object
— Ex parte injunctions
Civil procedure — Revision — Whether the High Court may revise subordinate court decisions for errors material to the merits
5 August 2011
Leave to appeal granted where arguable grounds and affidavits show sickness may justify non‑appearance.
Civil procedure
— Leave to appeal — test for grant of leave where impugned order is exercise of judicial discretion
— scope of High Court on reference from Taxing Master — introduction of new issues and treatment of affidavits
— sufficiency of sickness as cause for non‑appearance — conflicting authorities
— Taxation proceedings — restoration of dismissed bill of costs
4 August 2011
July 2011
Distributor's prolonged non-payment constituted fundamental breach; principal awarded decretal sum, interest and costs; counterclaim dismissed.
Contract law — distribution agreements
— award of commercial and post-judgment interest and costs
— breach for non-payment within stipulated credit period
— proof of indebtedness and failure to substantiate special damages
— rescission for fundamental breach
— security by deposit of title deeds
— validity of successive agreements
29 July 2011
Whether the plaintiff’s plaint disclosed a cause of action for delayed shipment — court held it did and dismissed the objection.
Civil procedure — Pleadings — cause of action
Civil procedure — preliminary objection
— pure point of law — objection based on disputed facts not appropriate at preliminary stage
— pure point of law (Mukisa test)
Commercial law — Shipping/Contract
— adequacy of pleaded facts to found claim
— Alleged delayed shipment and bills of lading
26 July 2011
Court stayed suit pending arbitration under a broad contractual arbitration clause; procedural citation and attestation defects held curable.
Arbitration — Stay of proceedings pending arbitration — scope of arbitration clause — Arbitration Act s 6 (Cap 15 R.E. 2002)
Civil procedure — preliminary objection — defective affidavit — Procedural defects not necessarily fatal and curable by amendment
19 July 2011
Registrar’s oral grant of extension and re‑advertisement breached Rules 7(1)/8(2) and natural justice; petition dismissed for Rule 32 non‑compliance.
Company law
— Companies law — winding-up petitions
— Companies (winding up) rules 1929 — Registrar’s powers and requirement for chamber summons and service
— Natural justice — right to be heard
— Rule 223(1) — cure of procedural defects
18 July 2011