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Citation
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Judgment date
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| December 2012 |
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Court dismisses challenge and registers foreign ICA appeal award; chairman/secretary signature valid and merits are not for court review.
Arbitration — Enforcement of foreign award — Applicable ICA bylaws — Signature requirements for appeal awards (Bylaw 346) — Jurisdiction to review merits — Section 30(2) Arbitration Act grounds for refusing enforcement.
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14 December 2012 |
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Plaintiff proved unpaid invoices; defendant failed to prove alleged fraud; damages, interest and costs awarded.
Commercial law – unpaid invoices – reliance on invoices, purchase orders and delivery notes; burden of proof shifts once supply is established; counterclaim alleging fraud requires higher standard of proof and must be substantiated by material witnesses and documents; failure to call material witnesses or tender investigation reports weakens fraud allegations.
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14 December 2012 |
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Applicant repaid loan; respondent wrongfully withheld a title deed—court orders release and awards general damages.
Commercial law – Loan facility and securities – Facility Letter requiring certificates of title, debenture and guarantees; proof of repayment; bank's duty to safeguard customer documents; withholding of certificate of title; failure to prove special and aggravated damages; award of general damages and release of title.
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14 December 2012 |
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Response to Rule 10 notice under Arbitration Rules must be by petition, not affidavit; defective affidavit struck and award registered.
Arbitration — Procedure for challenging presentation/filing of arbitral award — Rule 5 et seq. Arbitration Rules — Response must be by petition, not affidavit; procedural defects incurable — Distinction between filing/presentation and registration as Court decree — Limited grounds to set aside under section 16 Arbitration Act.
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14 December 2012 |
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Applicant failed to prove a contract of sale; claim dismissed with costs.
Contract formation — requirement of offer, acceptance and proof; Sale of Goods Act s.6(1) — writing requirement for contracts of sale; evidentiary weight of invoices and settlement agreements; proof of signature and authority; corporate capacity and BRELA search as evidence of directors/shareholders; civil standard of proof (balance of probabilities).
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14 December 2012 |
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Court struck mis‑pleaded officer's name; suit proceeds against district council; deed of guarantee need not be compulsorily registered.
Guarantee – nature and effect – Deed of guarantee is security and not a non‑testamentary document acknowledging receipt/payment; Registration of Documents Act s.8(1) – not compulsorily registrable; Pleading – mis‑description of party (officer title) may be struck out/amended; Preliminary objection – questions of authorization and signature are factual and not for summary disposal; Failure to prosecute preliminary points leads to dismissal.
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14 December 2012 |
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The plaintiff lawfully repossessed and sold leased vehicles; defendants are jointly liable for the unpaid balance.
Leasing and finance law – repossession and disposition of leased assets; Financial Leasing Act ss.13–14; tax invoice/VAT entitlement – requirement of eligibility and request; suretyship and guarantor liability – Law of Contract Act s.80; assessment of outstanding indebtedness after set-off of sale proceeds.
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13 December 2012 |
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Jurisdictional and limitation clauses in a bill of lading require factual proof and cannot be decided on preliminary objection; second defendant struck out.
* Commercial law – carriage of goods by sea – applicability and proof of bill of lading terms – choice-of-law and exclusive jurisdiction clauses require factual proof before enforcement. * Civil procedure – preliminary objections – objections that depend on disputed facts or documents are not pure points of law and cannot be decided summarily (Mukisa principle). * Limitation – contractual or convention time-bars in bills of lading vs statutory limitation require evidential determination. * Agency – disclosed agent cannot be sued where claim properly lies against principal.
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5 December 2012 |
| November 2012 |
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Bank negligently honoured a forged transfer instruction, breaching contract; applicant awarded restitution, interest and costs.
* Banking law – bank’s duty of care – obligation to act only on proper and verifiable instructions from authorised signatories and to make adequate inquiry where doubt exists.
* Negligence – bank liable for negligence where it honors forged or unauthorised transfer without reasonable verification.
* Contract – wrongful debiting of customer’s account without authority constitutes breach of contract.
* Evidence – handwriting expert report accepted where validity not challenged; relevance considered by the court.
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30 November 2012 |
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Application to lift garnishee order dismissed but decretal sum recalculated using simple interest; respondent awarded costs.
Civil procedure – Garnishee orders – lifting or variation – applicability of section 95 (inherent powers) where no specific Code provision; Contract construction – silence as to mode of interest – simple interest applies unless contract/nature compels compound interest; Locus and parties in garnishee proceedings – judgment debtor disputes over computation; Burden of proof as to subsequent events (order made absolute).
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28 November 2012 |
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Applicant failed to prove the mark was well-known or registered in Tanzania, nor that "FLOR" is confusingly similar to "FLOR DE CANA".
Trade marks – rectification under s.36 Trade and Service Marks Act – procedure for court applications; well-known marks – requirement of local fame, duration and promotion; territorial nature of trade mark registration and need for Registrar's certificate; likelihood of confusion – comparison as whole and consumer perception.
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28 November 2012 |
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An arbitral award obtained without joining or properly representing the government's legal representative is improperly procured and set aside.
Arbitration — Government as party — Arbitration Act s.22 applies to government arbitrations; Government Proceedings Act s.10 requires proceedings by/against the Attorney General; 90‑day notice requirement; failure to join or have Attorney General properly represent the government renders award improperly procured; Court may set aside award under Arbitration Act s.16; remission under s.15 inappropriate where award improperly procured.
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28 November 2012 |
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Failure to plead facts showing jurisdiction under Order VII r.1(f) rendered the plaint incurably defective and struck out with costs.
Civil procedure – Order VII r.1(f) CPC – plaint must plead facts showing court's jurisdiction; mere assertion or pecuniary allegation insufficient; vital procedural requirement; omission fatal and plaint struck out with costs; leave to refile permitted.
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22 November 2012 |
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Plaintiff failed to prove outstanding indebtedness; inconsistent accounts and release of securities defeated the bank's claim.
Civil procedure – burden of proof in debt claims; failure to prove quantum of indebtedness; inconsistent pleadings and evidence; effect of unconditional release of securities and written-off accounts on recovery.
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21 November 2012 |
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Extension of time to appeal will be refused absent sufficient explanation and particularised allegations of illegality.
* Appellate procedure – extension of time under s.11(1) Appellate Jurisdiction Act – discretion to extend time must be exercised judicially and requires sufficient cause. * Sufficiency of reasons – delay must be explained; mere allegations of illegality or concealment require particulars. * Counsel’s error/non-attendance – not automatically privileged or sufficient ground for extension.
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21 November 2012 |
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Ex parte decrees may be appealed on merits; no cross‑examination if no written defence; specific damages require pleading and proof.
Civil procedure – ex parte decrees – appealability of ex parte original decrees under s.70(2) of the Civil Procedure Code – right to cross‑examine at ex parte proof where no written statement of defence filed – pleadings and proof of specific (special) damages – requirement that special damages be particularized and strictly proved.
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20 November 2012 |
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Applicant entitled to refund and interest after respondent breached sale contract by delivering a defective, stolen vehicle.
Sale of goods – acceptance and rejection of goods – buyer not deemed to have accepted until reasonable opportunity to examine; delivery of defective and stolen vehicle – breach of contract; remedies – refund of purchase price and interest; general damages require evidential basis.
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19 November 2012 |
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Buyer entitled to refund and interest where seller delivered a defective, stolen vehicle and failed to replace or refund.
Sale of Goods – buyer's right to reject goods not previously examined; acceptance and transfer of property; seller's risk. Contract breach – failure to replace or refund within agreed period. Remedies – repayment of purchase price, commercial interest from date of agreement, post-judgment interest and costs. Insufficient evidence – refusal to award general damages.
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19 November 2012 |
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A seller validly rescinded a land sale after the purchaser failed to pay the balance and obtain required consent, awarding general damages.
Contract — sale of land — option to purchase — time of the essence — purchaser's failure to pay balance and obtain Commissioner for Lands' consent — seller's lawful rescission — assessment of damages; counter-claim for return of earnest money and incidental costs dismissed when non-completion caused by purchaser's breach; special damages must be pleaded and proved; punitive damages require bad faith.
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8 November 2012 |
| October 2012 |
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Supplier entitled to unpaid principal and interest for delivered goods; general and punitive damages denied.
* Contract law – formation by invoice, local purchase order and delivery notes – existence of binding contract.
* Breach – failure to pay for goods delivered – financial difficulty not a legal excuse for non-payment.
* Remedies – plaintiff entitled only to payment for goods delivered; general and punitive damages denied for lack of proof.
* Interest – commercial pre-judgment interest must be contractual or proved; court may exercise discretion to award reasonable pre-judgment rate; post-judgment interest limited by Order XX Rule 21 (7–12%).
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30 October 2012 |
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Applicant failed to cite the Limitation Act; application struck out for not properly moving the court.
* Civil procedure – preliminary objections – applicability of Section 19 (place of suing) to objections against Taxing Master's decisions.
* Advocates Remuneration and Taxation of Costs Rules – Rule 5(1) (referral of objection) and Rule 6(1) (extension of time).
* Limitation law – necessity to cite Law of Limitation (Schedule Part III, s.21) when seeking extension of time to file objection.
* Functus officio – striking out of prior application as procedural does not render court functus officio.
* Procedural compliance – court must be properly moved; failure to cite enabling statute is fatal.
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30 October 2012 |
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Petition for letters of administration dismissed where matter was sub judice and petitioner concealed prior proceedings.
Probate and administration — entitlement to letters of administration — effect of prior proceedings and appeal order directing rehearing (sub judice) — petitioner’s concealment/false statements as ground for dismissal — Primary Court exclusive jurisdiction for customary/Islamic estate matters absent High Court direction.
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19 October 2012 |
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Claim dismissed where applicant failed to prove a contract or agency relationship between it and the respondent.
* Contract formation – whether a contract existed between buyer and named foreign supplier where proforma invoice issued by intermediary.
* Agency – whether naming a party as "beneficiary" on a proforma invoice establishes agency; burden of proof lies on claimant.
* Evidence – proforma invoice and testimony insufficient to prove agency or direct contractual relationship.
* Remedy – absence of contractual relationship precludes claim for breach and associated damages.
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19 October 2012 |
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A miscellaneous application against an urban authority is a "suit" requiring a 30‑day notice; non‑compliance is fatal.
Local Government (Urban Authorities) Act s106(1) – mandatory one-month written notice to urban authority before commencing suit; "Suit" defined broadly to include chamber summons/miscellaneous applications; competency of proceedings; Civil Procedure Code (modes of instituting suits).
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3 October 2012 |
| September 2012 |
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Plaintiff failed to prove an oral loan; dishonoured cheque alone insufficient, claim dismissed with no costs.
Civil procedure – ex parte proof; Contract law – oral loan agreement; Evidence – burden and corroboration; Dishonoured cheque insufficiency to prove contract; Bills of Exchange Act – demand notice without proof of service.
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28 September 2012 |
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Plaintiff failed to prove alleged dishonoured telegraphic transfers; goods were delivered but claim dismissed for lack of proof.
* Commercial law – sale of goods – delivery – proof of delivery by invoices and delivery orders.* Evidence – proof of payment – distinction between telegraphic transfer and cheque; need for bank endorsements/pay‑in slips to prove presentation and dishonour.* Civil procedure – pleading – counterclaim/set‑off must be pleaded; unpleaded set‑off cannot succeed.* Evidence – burden of proof on party claiming payment was not made for commercial transactions.* Assessors – court considered assessor's opinion in evaluating documentary evidence.
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7 September 2012 |
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A petition to set aside an arbitral award is incompetent if the arbitrator has not filed the award in court and given notice.
Arbitration — procedure to challenge arbitral award — mandatory requirement that arbitrator files award in court and notifies parties (Arbitration Act s.12(2); Arbitration Rules r.4) — petition filed before filing/notice is incompetent — limitation/commencement tied to filing/notice.
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7 September 2012 |
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A Rule 88 application to set aside a sale for fraud or material irregularity need not comply with Rule 87 deposit requirements.
Civil procedure – Order XXI Rule 88(1) – Setting aside sale for material irregularity or fraud – Whether Rule 87(1)(a)&(b) deposit requirements apply – Rule 87(2) bars concurrent proceedings – Rules 87 and 88 construed in isolation to protect different interests.
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5 September 2012 |
| August 2012 |
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Court allowed late third‑party impleader and departed from scheduling order; oath/affirmation irregularity not fatal.
Civil procedure — Third party notice — Order I r14 and r17 — Power to grant leave discretionary — Order VIIIA r4 — Departure from scheduling order allowed if necessary in interests of justice — Oaths and Statutory Declarations Act s9 — Substitution of oath/affirmation not fatal — Failure to annex document affects weight, not validity.
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17 August 2012 |
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Plaintiff's loan claim dismissed where the critical written loan agreement was not produced, so burden of proof was unmet.
Civil procedure – burden of proof on balance of probabilities; ex parte proceedings – claimant must still prove case; contract evidence – requirement to produce critical written agreement to establish existence and terms; loan agreements – failure to tender agreement defeats claim for breach and remedies.
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17 August 2012 |
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Judgment debtors given four months to pay decretal sum or face civil imprisonment for failure to comply.
Order XXI Rule 35 — Execution by committal — prerequisites for arrest and detention of judgment debtor; requirement to show debtor’s means to pay or risk of absconding; notice to show cause; discretion to grant time for repayment.
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16 August 2012 |
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A witness may refresh memory from a dynamic electronic bank statement under s168(2) despite not being its original maker.
* Evidence — refreshing memory — sections 168(1) and 168(2) Evidence Act — "himself" refers to a natural person (witness) not a legal entity. * Electronic evidence — bank statements as dynamic computer-generated records — admissibility for memory-refreshing under s168(2) despite earlier preparation. * Judicial powers — section 176 confers broad questioning powers and limits parties' objections to court questions.
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9 August 2012 |
| July 2012 |
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High Court may hear stay of execution where notice of appeal lodged; cited CPC provisions were inapplicable, application struck out with costs.
Commercial procedure – stay of execution – concurrent jurisdiction of High Court and Court of Appeal under Court of Appeal Rules (Rule 11(2)(b), Rule 83) – Order XXI Rule 24(1) inapplicable where decree not sent for execution – Order XXI Rule 27 requires a pending suit against decree-holder – s.95 CPC not available where specific rules exist.
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31 July 2012 |
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A party who files a defence or otherwise takes steps in proceedings waives the right to stay the suit in favour of arbitration.
Arbitration law — Arbitration Act s.6 — Stay of proceedings where matter agreed to be referred — Requirement to apply after appearance and before filing defence; waiver by taking steps in proceedings; procedural requirements under Arbitration Rules GN. 427/1957; preliminary objection inappropriate vehicle to obtain stay.
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24 July 2012 |
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An arbitral award is unenforceable where the applicant never consented to the arbitration agreement.
Arbitration — enforcement of foreign award — jurisdiction depends on consensual arbitration agreement; acceptance must be communicated; silence is not acceptance; Arbitration Act s30(1) and New York Convention (Article V) conditions for recognition; award unenforceable if not made pursuant to a valid arbitration agreement; public policy and error on face of award considerations.
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11 July 2012 |
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A plaint based on a company board resolution and annexures disclosed a cause of action under the indoor management rule.
Civil procedure – Order VII r.1(e) – cause of action; Companies law – board resolution; Indoor management (Turquand rule) – section 37 Companies Act; Preliminary objection – factual disputes reserved for trial; Security – company property (title deed) relied upon as collateral.
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10 July 2012 |
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Failure to plead when the cause of action accrued prevented assessment of limitation and warranted striking out the contract claim.
* Limitation — contract claims — six‑year period under Limitation Act — necessity to plead when cause of action accrued.
* Pleading — cause of action must be disclosed with dates and essential particulars; court determines limitation from plaint alone.
* Defective plaint — inconsistent dates, missing contract terms and earlier ruling — failure to plead dates justifies striking out.
* Preliminary objection (time bar) upheld; misjoinder point withdrawn.
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2 July 2012 |
| June 2012 |
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Applicant failed to prove surveyed plots were subject to attachment; objection dismissed as misdirected and moot.
* Civil Procedure – Order XXI Rules 57–59 CPC – objection to attachment – claimant must show interest or possession at time of attachment. * Execution proceedings – identification of property in warrant/proclamation – misidentification or different plot numbers defeats objection. * Mootness – sale and issuance of certificate of sale may overtake relief to lift attachment.
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27 June 2012 |
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Late production of a pay-in slip refused: no sufficient "good cause" and admission would prejudice respondent.
Civil Procedure – Order XIII Rules 1 and 2 – Late production of documentary evidence – "Good cause" required for non-production at first hearing – Court discretion; prejudice to adverse party; uncertified copy and alternatives (bank copy/statement) relevant to assessing good cause.
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21 June 2012 |
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Court extended expired scheduling order 12 months, ruling speed-track runs from filing and permitting departure in interest of justice.
Civil procedure — Scheduling orders/speed-track (Order VIII A) — expiry and consequences; Rule 4 Order VIII A — departure only in interest of justice; commencement of suit for speed-track — filing of plaint; incorrect citation of procedural provisions — can be ignored if substance allows; section 95 CPC — court’s remedial power to extend time/regularize proceedings; party conduct and blame for delay — relevant to relief.
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20 June 2012 |
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Application to stay proceedings for arbitration dismissed due to procedural defects and waiver by the applicant's litigation conduct.
Arbitration — stay of proceedings under s.6 Arbitration Act; proper procedural form (petition) under Arbitration Rules; timing requirement — apply after appearance but before taking steps; waiver by litigation conduct and admissions; separability of arbitration clause (survival after contract expiry).
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20 June 2012 |
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A mortgage procured by fraud is void against the owner; lender may recover from borrower who affirmed the contract.
Contract law – mortgage – alleged forgery/fraud in execution of mortgage deed; evidence and forensic handwriting comparison; burden of proof in civil fraud (s.110 Evidence Act); effect of fraud on consent (ss.17,19 Law of Contract Act) – voidable contracts and timely repudiation; lender’s remedy against borrowing party who affirmed the contract; reliefs and interest awarded.
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14 June 2012 |
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Failure to file pleadings with original signatures and proper verification is fatal; non‑compliance led to striking out the suit with costs.
Commercial procedure — pleading formalities — scanned signatures versus original signatures; verification clause must state place and date; court fees for annexures are payable but deficiency may be cured; documents filed without leave can be expunged; duplication of applications may amount to abuse of process; unproven allegations of tampering require specific evidence.
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11 June 2012 |
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Court held defendants jointly liable for proved debts (Tshs.67,275,000) with contractual and post-judgment interest and costs.
Commercial law – unpaid supplies and dishonoured cheques; corporate identity and estoppel; directors’ connection to company obligations; proof of indebtedness; agreed contractual interest and post-judgment interest; relief limited to pleaded and proved sums.
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11 June 2012 |
| May 2012 |
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A collecting bank liable for negligence when failing to properly endorse and safeguard a deposited cheque, causing loss.
Banking law – collecting bank duty of care; endorsement and endorsement guarantee; representation of cheque clearance; loss of cheque in bank custody; negligence and damages; entitlement to interest and costs.
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31 May 2012 |
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Court taxed the bill of costs, allowing instruction fees without a demand letter and disallowing separate pre‑suit and VAT claims.
Costs – Bill of costs taxation – exchange‑rate computation; instruction fees – demand letter not prerequisite; pre‑suit consultation subsumed into instruction fees; plaint preparation limited to stationery reimbursements; attendances taxed as transport costs; VAT disallowed without evidence; disbursements allowed as presented.
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31 May 2012 |
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Review dismissed: subcontractors not parties, container-number dispute factual, security deposit valid.
Civil procedure — Review under Section 78(b) & Order XLII(1)(b) CPC — new evidence vs. documents already in party's possession; Contract formation — subcontractors not parties to principal oral contract; Contested facts — number of containers requires trial evidence; Security for costs — court’s discretionary deposit order valid.
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29 May 2012 |
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Review dismissed: no new evidence and no error apparent; deposit as security for costs upheld.
* Civil procedure — Review (Order XLII(1)(b), Sec.78 CPC) — grounds: discovery of new evidence; error apparent on face of record. * Contract — subcontractors v contracting party — subcontractors not parties to principal oral contract cannot claim direct contractual rights. * Evidence — document in party’s possession not ‘newly discovered’ for review. * Interim relief — court’s discretion to order deposit/security for costs (Order 25). * Disputed factual matters (number of containers) require trial evidence, not review remedy.
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29 May 2012 |
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Post-decree variation to pay an arbitration award by installments requires the decree holder's consent; application dismissed.
* Civil Procedure — Order XX Rule 11(1) & (2) — Court may order payment by installments at time of passing decree; post-decree variation requires decree holder's consent.
* Arbitration — Award registration — unopposed award registered as decree.
* Execution — Burden on judgment debtor to show sufficient reason for postponement or installments; failure to prosecute petition and lack of consent defeats post-decree application.
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24 May 2012 |
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High Court cannot stay execution pending an application for extension of time to lodge a notice of appeal; application dismissed.
Civil Procedure – Order XXXIX Rule 5 – Stay of execution pending appeal – No power to stay execution where no notice of appeal filed – Extension of time application does not trigger stay – Mandatory conditions for stay (substantial loss, no unreasonable delay, security) – "wishful thinking" appeal doctrine.
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18 May 2012 |