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Citation
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Judgment date
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| December 2011 |
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A factual dispute over service of a notice of appeal makes a preliminary objection inappropriate and is dismissed.
* Civil procedure – preliminary objection – must raise a pure point of law; not suitable where facts must be ascertained (Mukisa Biscuits test). * Stay of execution – application to High Court; Court of Appeal Rules on service of notice not dispositive of a High Court stay application. * Service of notice of appeal – factual issue requiring evidence, not to be determined on preliminary objection.
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29 December 2011 |
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Landing contractor liable for negligence; plaintiff awarded customs‑value refund, general damages, interest and costs.
Negligence – duty of care of landing contractors for containers and contents; custody liability for pilferage; valuation of lost cargo—customs‑declared value preferred over inadmissible pro forma invoice; assessment of general damages and interest (pre‑ and post‑judgment).
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29 December 2011 |
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An arbitration clause does not oust court jurisdiction; a defendant must promptly seek a section 6 stay before taking steps.
Arbitration clause — effect on court jurisdiction; stay of proceedings under section 6 Arbitration Act; "step in the proceedings" (filing written statement) precludes section 6 stay; court's discretion to enforce arbitration agreement; contractual referral to arbitration (Mauritius).
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29 December 2011 |
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Court allows amendment to cure verification-clause and scanned-signature defects in pleadings; costs in the cause.
Civil Procedure — Amendment of pleadings (Order VI r17) — leave to amend to cure lack of verification clause and scanned signatures; Pleadings — procedural/form defects curable by amendment; 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.
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23 December 2011 |
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Expiry of a Speed Track does not automatically terminate a suit; court may amend scheduling order and extend the case in the interests of justice.
Civil Procedure — Order VIIIA r.3(c) and r.4 — Speed Track Three (14 months) — commencement date ambiguity — expiry of Speed Track does not automatically extinguish suit — departure/amendment of scheduling order in interests of justice — court may act suo motu — striking out an inappropriate remedy.
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20 December 2011 |
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A limitation objection requiring factual inquiry fails as a preliminary point; defective verification of a plaint is curable by amendment.
* Limitation law – accrual of cause of action – whether time bar can be decided on preliminary objection where factual determination required.
* Civil Procedure – Order VI r.15 – verification of pleadings – failure to identify verifier and paragraph-specific verification is irregular but curable by amendment.
* Preliminary objections – Mukisa Biscuit test – objection failing where facts must be ascertained.
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19 December 2011 |
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Taxing master reduced the applicant's claimed instruction and appearance fees, taxing the bill to TZS 8,115,000.
* Civil procedure – Taxation of costs – Assessment of instruction fees – factors: suit amount, complexity, time, research and parties’ conduct.
* Advocates’ Remuneration GN 515/91 – scales outdated – taxing master may deviate guided by principles of fairness.
* Costs – appearances for mention, ADR, and hearings – appropriate rates and compensatory purpose of costs.
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16 December 2011 |
| November 2011 |
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Borrower and guarantors held jointly liable for loan default; TZS 631,840,705.44 awarded with contractual and post-judgment interest.
Commercial law – Loan facilities – Default on term loans – Contractual interest and penalty interest – Personal guarantors’ joint and several liability – Ex parte proof and standard of proof – Attachment and sale of secured assets as remedy.
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25 November 2011 |
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Oral hire agreement enforced; defendant ordered to pay unpaid hire charges with interest; general damages denied.
Contract law – oral hire agreement enforceable where offer, acceptance, consideration and parties’ conduct establish terms; Evidence – invoices, time sheets/logbooks and correspondence admissible to prove contract and unpaid sums; Burden of proof – plaintiff must prove debt; Remedies – award of decretal sum and interest under Law of Contract Act (s.70, s.73); General damages require proof of quantum.
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24 November 2011 |
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Plaintiff proved the contract but failed to prove payment; claim dismissed for lack of evidential support.
Civil procedure – ex parte proof; Evidence – burden of proof (Evidence Act ss.110–113) – party alleging payment must produce receipts, bank slips or acknowledgment; Failure to call material witness may allow adverse inference; Contract law – existence of contract established by original document (Exhibit P1) but proof of payment required to establish indebtedness.
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21 November 2011 |
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A commercial MOU was binding; the respondent wrongfully terminated it, entitling the applicant to damages and return of equipment.
Contract law – Memorandum of Understanding – commercial MOU held binding where document and conduct show intention to create legal relations; breach – wrongful termination where claimant delayed only modestly and respondent had delayed provision of specifications; damages – award for lost rental income; specific performance declined where third‑party occupation; return of equipment ordered.
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21 November 2011 |
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Court allowed applicant to amend defence to introduce newly discovered banking documents on cheque presentation.
Civil procedure — amendment of pleadings — Order 6 r.17 — leave to amend after close of case; Banking law — "presentation" of cheque as a technical issue; 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.
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18 November 2011 |
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The defendant, a stranger to the bill of lading, had no cause of action against the carrier; third‑party notice dismissed.
* Contract of carriage – bill of lading – privity – stranger to contract cannot sue carrier; no cause of action. * Civil procedure – preliminary objections – failure to file ordered reply amounts to waiver; court may decide on uncontroverted submissions. * Maritime law – Hague Rules/time bar and exclusive forum clauses raised but not determined where lack of cause of action is dispositive.
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11 November 2011 |
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Unsigned or inadequately authorized verification of defence is a procedural defect curable by amendment within seven days.
Civil Procedure — Order VI r.14 and Order XXVIII r.1 CPC — Requirement for signing and verification of pleadings; advocate signing on behalf of party — necessity to show absence or other good cause and express authorization; failure to sign/verify is procedural and curable by amendment.
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10 November 2011 |
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Court ordered civil imprisonment for the judgment debtor for failing to comply with consent-decree instalment payments.
* Civil procedure – Execution of consent decree – entitlement to arrest and imprisonment for defaulted instalments under deed of settlement.
* Order XXI r.5(2) CPC – execution application properly filed; oral application at bar not prerequisite.
* Default – occurs immediately upon missed instalment due under decree; debtor’s inconsistent payments and dishonoured cheques irrelevant to waiver of enforcement.
* Civil imprisonment – conditional commitment until decretal sum and accrued interest are paid; decree holder to pay daily subsistence to prison.
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8 November 2011 |
| October 2011 |
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A bank unlawfully returned a customer's cleared cheque; the customer awarded damages for lost opportunity.
Banking law – banker–customer relationship; wrongful debit/return of cleared cheque; duty to notify customer; duty to seek court clarification where orders conflict; negligence and breach of contract; damages for lost opportunity; interest and costs.
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27 October 2011 |
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The applicant must obtain court leave before suing a company declared a specified public corporation.
* Public Corporations Act s.43 – designation as specified public corporation vests assets in statutory receiver (PSRC/Consolidated Holding Corporation).
* Bankruptcy Act s.9 – leave of High Court required before creditors may sue property of a debtor where an official receiver is constituted.
* Effect of specification – statutory receiver powers trigger section 9 protections even where cause of action arose post-specification.
* Procedural consequence – failure to obtain leave is fatal; suit struck out.
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25 October 2011 |
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Municipal revenues (including bank deposits) are protected from garnishee; Director must pay award from council revenue.
Execution — executing court determines execution disputes (s.38 Civil Procedure Code); Interest — computation and commencement of 23% compound interest; Local Government — section 109B (Local Government Laws (Misc. Amend.) Act 2006) bars attachment of council property and requires Municipal Director to pay judgments from council revenue; Bank deposits — bank holds deposited funds but such funds constitute council revenue and are protected from garnishee/attachment under s.109B.
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24 October 2011 |
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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 – collecting banker’s liability – deposit and clearance of banker's cheque – conversion where proceeds credited to wrong account; evidence of forgery and competing instruments; duty to act in good faith and with care; Bills of Exchange Act s.85(1) – limits of exoneration; measure of remedies and refusal of general damages for unproved reputational loss.
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21 October 2011 |
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Request for clarification is not a statutory complaint; PPAA acted without jurisdiction, out of time and unreasonably, so its decision was quashed.
Public procurement — clarification requests under Regulation 85 vs complaints/disputes under s.80 — jurisdiction of PPRA/PPAA; mandatory time limit s.82(5) — non‑compliance renders decision ultra vires; suspension under s.84(3) — procedural requirement; Wednesbury unreasonableness — failure to consider public interest and expenditure; quashing of PPAA decision.
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21 October 2011 |
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20 October 2011 |
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Whether a lessor is bound by an adjudicator's award against its former operator after assignment of accrued obligations on lease termination.
Contract law – rescission and survival of accrued obligations (sections 62 and 65 Law of Contract Act); Assignment on lease termination – clause 56.5 interpretation; Adjudication awards – binding effect on assignee/lessor who receives operator's obligations despite not being party to adjudication; Remedies – enforcement of adjudicator's award, post-judgment interest and costs.
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7 October 2011 |
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7 October 2011 |
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Court granted a Mareva-style interlocutory freezing order and bank statements despite an arbitration clause, finding risk of dissipation.
Commercial law – interlocutory relief – Mareva freezing orders; arbitration clause does not bar court from granting interim preservation orders where no stay obtained; exigency, prima facie debt, risk of dissipation, balance of convenience; Order XXXVII Rule 8 and inherent jurisdiction; bank statement production ordered.
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7 October 2011 |
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Prior employment alone does not disqualify counsel; concrete evidence of conflict is required to bar representation.
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; Legal ethics – absence of explicit rule, need for evidential showing.
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5 October 2011 |
| September 2011 |
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Preliminary objection dismissed where plaint raises mixed legal and factual issues requiring a full trial.
Banking law — mistaken/unauthorised credit and withdrawal; cause of action — meaning and determination from plaint; corporate personality and lifting the veil; preliminary objection — limited to pure points of law; mixed questions of law and fact require trial (Mukisa principle).
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29 September 2011 |
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Court dismissed challenge to ICC award—issues were referred to and decided by tribunal; award registered as decree.
Arbitration law – supervisory jurisdiction of domestic courts under sections 15–17 Arbitration Act; misconduct and ‘error of law on the face of the award’; finality where parties refer specific legal and factual issues to tribunal; public policy and illegality in procurement disputes; remission to arbitral tribunal vs setting aside; registration and enforcement of foreign ICC awards.
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28 September 2011 |
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Leave to appeal granted to challenge dismissal of cross-petition for want of prosecution; corrections to affidavit permitted to avoid technicality.
* Civil procedure – leave to appeal – application for leave to appeal against dismissal of cross-petition for want of prosecution – proper forum to challenge discretionary dismissal.
* Evidence/procedure – correction of affidavit – court may allow corrections to avoid technical obstacles to justice (Article 107A(2)(e)).
* Civil procedure – concurrent remedies – appeal and review may be pursued but depend on case merits.
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26 September 2011 |
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Whether an alleged fictitious loan existed or the respondent bank was protected as a good‑faith third party under the Companies Act.
Company law – Power of directors to borrow under Articles of Association; Third-party protection – sections 36(1) and 37 Companies Act – party dealing in good faith need not inquire into internal limitations; Evidence – bank documents and corporate resolutions as proof of facility; Counterclaim – recovery of admitted outstanding loan balance with contractual/market interest.
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23 September 2011 |
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Court found borrower in default under a vehicle lease and awarded the bank TZS 178,417,037.63 with interest and costs.
* Commercial law – asset finance/lease – borrower default on repayment obligations under lease/credit facility.
* Evidence – reliance on facility letter, lease agreement and provisional statement in ex parte proceedings.
* Remedies – award of principal sum, contractual/default interest and post-judgment interest; costs.
* Procedural – ex parte proof where defendant failed to enter appearance or defence.
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23 September 2011 |
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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.
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21 September 2011 |
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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.
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20 September 2011 |
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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. * Securities – debenture, legal charges and directors'/personal guarantees enforceable where execution is not effectively rebutted. * Procedural irregularities (missing application/board resolution) do not necessarily vitiate a loan where parties have accepted and acted on the facility. * Adverse inference may be drawn from failure to call material witnesses. * Reliefs – principal, commercial interest, sale of mortgaged property as alternative enforcement, costs.
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19 September 2011 |
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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 – Existence and enforceability of facility and guarantee; breach for non‑payment; ex parte proof and documentary evidence sufficient to establish liability; award of principal, contractual interest and post‑judgment interest; costs.
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19 September 2011 |
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Preliminary objections alleging wrong citation, improper drawer, and defective verification were dismissed as curable or factual, amendments allowed.
* Civil procedure – preliminary objections – must raise a pure point of law; factual disputes require evidence. * Civil Procedure Code – wrong or incomplete citation of enabling provisions may be a curable irregularity if it does not go to the root of the application. * Advocates Act – who drew pleadings raises factual inquiry; not suitable for summary disposal. * Affidavits – defective or unlabelled verification clauses are technical irregularities generally curable by amendment.
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12 September 2011 |
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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.
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6 September 2011 |
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Plaintiff failed to prove delivery; company (not the individual) drew dishonoured cheques; claim dismissed with costs.
Contract & evidence – supply of goods – failure to produce delivery/dispatch book – adverse inference; Dishonoured cheques – drawer company liable; Personal liability – no proof of individual signature or directorship; Burden of proof shifts; Misjoinder/joinder challenge dismissed due to lack of proof.
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5 September 2011 |
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Company wound up where shareholders are deadlocked and the company had not commenced business within one year.
* Companies Act – s.279(1)(b) – failure to commence business within one year – company business must be in company's name, not shareholders'.
* Companies Act – s.279(1)(e) – just and equitable winding up – shareholder deadlock and failure to hold statutory meetings.
* Evidence – Letter of Offer of Right of Occupancy is not conclusive proof of title; Certificate of Right of Occupancy is conclusive.
* Jurisdiction – disputes over land title are for land courts, not the Commercial Division.
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2 September 2011 |
| August 2011 |
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Affidavits missing jurat date are fatally defective; scanned signatures are not equivalent to electronic signatures; witness statements unsworn are inadmissible.
Civil procedure – affidavits – jurat must show place and date (s.8 Notary Public & Commissioners for Oaths Act); omission of date is fatal; scanned signatures are not equivalent to electronic/digital signatures and do not substitute for original signatures under existing law; witness statements unsworn and filed without court order are not recognised under Order XIX; procedural defects in pleadings (lack of verification clause, scanned signatures) are curable by amendment; costs awarded to respondent.
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29 August 2011 |
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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; Civil Procedure Code s.68(e) — requirement to cite specific subsection; s.93 — enlargement of time where practice fixes seven-day rejoinder period; s.95 — inherent powers to prevent abuse and secure ends of justice; Rule 13 Order VIII and Limitation Act s.14(1) inapplicable.
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19 August 2011 |
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An unopposed voluntary winding-up petition was granted after statutory advertisement, service and affidavit compliance.
Company law – Voluntary winding up – Petition by company under s.279(1)(a) and Winding Up Rules – Advertisement and service on Registrar – Unopposed petition – Winding up ordered under s.282(2)(a); copy to Registrar under s.287; dissolution under s.329.
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18 August 2011 |
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The respondent’s preliminary objection based on an amicable-settlement clause was dismissed; it did not oust court jurisdiction.
* Civil procedure – preliminary objection – Mukisa test – preliminary objection must raise pure point of law, not disputed facts. * Contractual dispute resolution – amicable settlement clause vs arbitration – does not oust court jurisdiction absent clear wording. * Summary procedure (Order XXXV) – claim for liquidated sum from dishonoured cheques not mandating prior amicable settlement. * Arbitration Act s.6 – party seeking enforcement of arbitration agreement must apply for stay before filing defence.
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9 August 2011 |
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Suit struck out for lack of territorial jurisdiction where cause of action and parties were in Zanzibar.
Territorial jurisdiction — High Court of Tanzania (Mainland) v. High Court of Zanzibar — interpretation of Civil Procedure Code ss.17 and 18 — corporate existence of branch under Zanzibar law — forum shopping — preliminary objection striking out for lack of jurisdiction.
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5 August 2011 |
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Application seeking restoration and stay struck out for failure to cite Order IX Rule 13; Order XXI R.27 inapplicable.
Civil procedure — restoration of dismissed application — correct provision Order IX Rule 13; Stay of execution — Order XXI Rule 27 requires a pending suit between decree-holder and judgment debtor; Combining prayers — not per se fatal (Court of Appeal authority); Importance of proper citation — failure to cite correct law renders application incompetent.
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5 August 2011 |
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High Court quashed ex parte orders returning seized vehicles, finding jurisdictional and procedural irregularities.
Commercial law – chattel mortgage and seizure of charged chattels; Civil procedure – Order XXXVII temporary injunctions; ex parte proceedings and notice requirements; jurisdictional competence and citation of wrong/non-existent provision; High Court revisionary jurisdiction for material error and injustice.
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5 August 2011 |
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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; taxation proceedings – restoration of dismissed bill of costs; sufficiency of sickness as cause for non‑appearance – conflicting authorities; scope of High Court on reference from Taxing Master – introduction of new issues and treatment of affidavits; misquotation of law by Taxing Master and judicial characterization as 'slip of the pen'.
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4 August 2011 |
| July 2011 |
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Distributor's prolonged non-payment constituted fundamental breach; principal awarded decretal sum, interest and costs; counterclaim dismissed.
Contract law – distribution agreements – validity of successive agreements; breach for non-payment within stipulated credit period; rescission for fundamental breach; proof of indebtedness and failure to substantiate special damages; security by deposit of title deeds; award of commercial and post-judgment interest and costs.
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29 July 2011 |
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Whether the applicant’s plaint disclosed a cause of action for delayed shipment — court held it did and dismissed the objection.
* Civil procedure – preliminary objection – whether plaint discloses cause of action – plaint to be read alone with annexures and assumed true for this purpose; * Pleadings – Order VII r.1(e) & r.11 CPC – requirement to plead facts constituting cause of action and when it arose; * Preliminary objection – must raise a pure point of law; factual disputes requiring evidence are not properly disposed by preliminary objection; * Shipping law – allegations of assurance, bills of lading dates and delayed sailing sufficient at pleading stage to found action for losses.
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26 July 2011 |
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A broad arbitration clause required staying the applicant's court suit; procedural citation defects were curable, not fatal.
* Arbitration — stay of court proceedings under section 6 of the Arbitration Act (Cap 15 R.E.2002).
* Arbitration clause — wide wording "any dispute, controversy or claim arising out of or relating to this Agreement" held to cover pleaded disputes.
* Procedure — incorrect citation and attestation defects curable, not fatal to application.
* Party autonomy — parties free to agree on governing law and arbitration forum.
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19 July 2011 |
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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.
Companies Law – Winding up petitions – Rule 32 verification and advertisement requirements; Procedural law – effect of non‑citation of enabling provision – section 2 JALA as fallback where rules silent; Companies (Winding Up) Rules 1929 – Rule 7(1) and Rule 8(2) – Registrar’s powers and requirement for chamber summons and service; Natural justice – right to be heard; Rule 223(1) – cure of procedural defects; Locus – interested party’s right to appear under Rule 33.
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18 July 2011 |