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Citation
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Judgment date
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| June 2023 |
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Default judgment granted for unpaid repair invoice after valid service, dishonoured cheques, and no defence; publication conditions imposed.
Commercial law – breach of contract for unpaid motor repair invoice; dishonoured cheques. Civil procedure – default judgment under Rule 22(1) of the High Court (Commercial Division) Procedure Rules; sufficiency of affidavit and annexures (Form No.1)
Service – re-service by court process server and consequences of failure to file defence
Execution – condition precedent to execution under Rule 22(2)(a) and (b): publication in two newspapers and delay before execution
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30 June 2023 |
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30 June 2023 |
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The applicant's failure to join the Attorney General does not render the application incompetent; objections dismissed.
Government proceedings — necessity of Attorney General as party — s6A(1) Cap.5 R.E.2019; Intervention by Attorney General — right to be joined or to take over proceedings instituted by/against local government authorities; Preliminary objections — objection based on mixed law and fact not suitable at preliminary stage (Mukisa principle); Appeal specification — whether appeal is against order or final decree is factual and to be determined on merits.
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30 June 2023 |
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Court records mediated settlement as consent judgment ordering plaintiff to pay TZS 17bn under specified schedule and costs to be borne by each party.
Commercial law – Settlement by mediation – Consent judgment recorded as court decree; agreed repayment schedule and interest rate enforceable as judgment. Debt repayment – Structured payment plan – initial lump sum followed by five annual installments at 5% interest
Costs – parties to bear their own costs under consent judgment
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30 June 2023 |
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Failure to comply with a court discovery order warranted dismissal of the plaintiff's suit under Order XI Rule 18 CPC.
Civil procedure – discovery orders – duty to comply with court orders – custodianship of records (BRELA, TRA) and police loss report relevance Civil procedure – dismissal for want of prosecution – Order XI Rule 18 CPC – effect of plaintiff's non-compliance with discovery order Overriding objective – cannot be used to circumvent mandatory procedural requirements that go to the root of the matter Sanctions for non-compliance – dismissal and potential adverse inference
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30 June 2023 |
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Applicant entitled to unpaid transport fees; respondent breached MoUs and must pay with interest; counterclaim dismissed.
Contract law – Memoranda of Understanding – obligation to pay within 30 days upon provision of original invoice and PODs – breach by withholding payment
Evidence – production of PODs and invoices; effect of third‑party stamping and failure to cross‑examine. Insurance law – Goods in Transit (GIT) – scope of required cover; hijacking risk not contractually imposed on transporter; party with insurable interest to initiate claim
Remedies – decretal sum, commercial and post-judgment interest, costs; dismissal of counterclaim for lost cargo
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30 June 2023 |
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Applicant proved respondent’s breach of loan agreements; court awarded outstanding sums, reduced interest to 10%, and authorised mortgage sale.
Commercial law – mortgage and personal loan defaults; evidence and computation of outstanding loan balances; bank accounting 'write off' does not discharge debtor; contractual interest rates and court's discretion to award fair pre- and post-judgment interest; enforcement via auction of mortgaged property.
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30 June 2023 |
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30 June 2023 |
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An affidavit containing legal arguments renders the supporting application incompetent and it was struck out with costs.
Affidavit law – Affidavits must not contain legal arguments, prayers or conclusions – Offending paragraphs may be expunged where inconsequential – Where expungement leaves no substantive affidavit, the supporting application is incompetent and liable to be struck out – Costs awarded.
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30 June 2023 |
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Applicant failed to prove interest or possession in property attached in execution; application dismissed with costs.
Civil Procedure — Order XXI — Attachment in execution — Applicant seeking to lift attachment must prove interest or possession at time of attachment; land search and surveyor's identification can establish correct identification of attached property; failure to rebut search/survey evidence results in dismissal.
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27 June 2023 |
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Applicant shown prima facie defence on whether installation formed part of consideration; leave to defend under summary procedure granted.
Civil procedure — Summary procedure — Leave to appear and defend under Order XXV/XXXV Rule 3(1) CPC — Requirement to disclose facts showing holder must prove consideration and existence of a prima facie defence. Commercial law — Promissory notes — Defence arising from alleged non-performance of contractual installation obligations. Triable issue — Whether installation formed part of contractual consideration requiring plenary hearing
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23 June 2023 |
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Court recorded parties' deed of settlement as consent judgment after finding it met Order XXIII Rule 3 requirements.
Civil Procedure — Consent judgment — Deed of Settlement — Order XXIII Rule 3 Civil Procedure Code — Recording settlement as judgment — Suit marked compromised.
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23 June 2023 |
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Preliminary objections on cause of action and locus standi overruled; court may examine pleadings and annexures.
Civil procedure – preliminary objections – cause of action and locus standi; court may inspect plaint and annexures when ruling on preliminary objections; where pleadings disclose mixed or disputed factual nexus, further evidence may be required to determine contractual privity.
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23 June 2023 |
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Company contractor found liable for breach of construction contracts; individual employees/directors not personally liable.
Commercial law – Construction contracts – Breach by contractor – Evidence: contracts, receipts and bank transfers; corporate personality – company distinct from directors/employees; default judgment following strike-out of defence; damages, interest and costs.
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23 June 2023 |
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Court lifted corporate veil and ordered directors’ committal after judgment debtor defaulted despite declaring means to pay.
Execution – Lifting corporate veil – Order XXI Rules 9, 35 and Rule 39(2)(d) – Directors’ committal as civil prisoners for judgment debtor’s default. Burden of proof – Adequacy satisfied by debtor’s own commitment (deed of compromise) indicating means to pay. Concealment/transfer of assets not strictly required where Rule 39(2) circumstances are proved
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21 June 2023 |
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Leave to appeal refused because the supporting affidavit failed to disclose substantive grounds for appeal.
Civil procedure — Leave to appeal — Applicant must show good reasons, arguable case or novel point of law for Court of Appeal consideration; grounds for appeal must be disclosed in supporting affidavit — Submissions cannot substitute for affidavit. Civil Procedure Code, Order XXIII Rule 1(2)(a) — requirements when seeking withdrawal of suit with leave to refile
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19 June 2023 |
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Plaintiff proved breach of a vehicle sale agreement and was awarded unpaid balance, interest, damages and costs.
Contract law – sale and purchase – breach for non-payment – entitlement to unpaid purchase price; Evidence – HCCD Rule 56 – striking out absent witness statements and weight of unsworn testimony; Remedies – contractual and court-ordered interest, general damages and costs.
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16 June 2023 |
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Utilisation and discounting of an LC before shipment on non‑compliant documents breached the LC and UCP 600.
Banking law – Letters of Credit – compliance with documentary requirements under LC fields 46A and 47A(8) and UCP 600; premature utilisation before arrival/maturity breaches LC. Reimbursement authorisations – revocability where presentation is non‑compliant
Remedies – declaration of breach, cancellation of reimbursement authorisation, repayment of charges, damages and interest
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16 June 2023 |
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Extension of time refused where alleged illegality and incapacity at settlement were unproven and delay unexplained.
Application for extension of time – consent judgment – alleged illegality in execution of settlement deed – incapacity due to illness – requirement that illegality be apparent on the face of the record (Valambia; Lyamuya). Proof required to vitiate consent – unsoundness of mind, duress, undue influence, forgery – must be supported by evidence
Delay – need to account for each day of delay when seeking extension of time
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14 June 2023 |
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14 June 2023 |
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12 June 2023 |
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An undertaking may secure a stay, but the respondent must furnish an enforceable bank guarantee from a reputable bank as security.
Civil procedure – Stay of execution – Condition to furnish security for due performance of decree – Distinction between an undertaking and enforceable security; bank guarantee from reputable bank ordered
Security – Form and enforceability – Undertakings may secure a stay but actual security (e.g., bank guarantee) required to protect decree-holder
Precedents – Reliance on authorities on firm undertakings and requirement for third-party bank guarantees
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12 June 2023 |
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Applicants failed to satisfy Atilio requirements for a temporary injunction; application dismissed with costs.
Civil procedure – temporary injunction – Atilio v Mbowe test: prima facie case, irreparable harm, balance of convenience. Banking law – secured loans and mortgages – bank’s right to recover on default and enforce securities. Irreparable injury – monetary compensation may be adequate remedy where loss is compensable by damages. Balance of convenience – protection of bank’s interest in loan recovery where customer default is undisputed
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9 June 2023 |
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Extension of time granted where defective certificate of delay by court officer and applicant acted diligently.
Civil procedure – Extension of time – Sufficient cause – Defective certificate of delay issued by court officer – Applicant’s diligence – Withdrawal of appeal – Accounting for delay.
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9 June 2023 |
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Court upheld instruction fee award but struck out improperly claimed TZS1,000,000 for attending taxation; each party to bear own costs.
Advocates Remuneration Order – taxation of bill of costs – award of instruction fees – discretionary evaluation by taxing officer; requirement of receipts/vouchers – production within taxing officer’s discretion; Order 55(3) – fees for attending taxation to be left blank and not claimed in body of bill – unlawful separate award struck out.
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9 June 2023 |
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Arbitration clause in shareholders/JVA ousts court jurisdiction; application struck out and respondents awarded costs.
Commercial law – arbitration clause – jurisdiction – dispute resolution clause in Joint Venture/Shareholders' Agreement requiring ICC arbitration in Paris – sanctity of contract – preliminary objection sustained – suit struck out for want of jurisdiction.
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9 June 2023 |
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Default judgment entered for plaintiff for breach of transport contract; damages awarded and publication condition imposed before execution.
Commercial law – Contract – Transportation agreement – breach by failure to deliver consignments and failure to refund advanced payments. Civil procedure – Default judgment – substituted service by publication – Rule 22(1) High Court (Commercial Division) Procedure Rules 2012 (as amended)
Remedies – Damages and costs; publication requirement before execution under Rule 22(2)
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9 June 2023 |
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6 June 2023 |
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5 June 2023 |
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Default judgment granted after valid substituted service and proof of loan, guarantees, and defendants’ failure to defend.
Commercial law – Loan facilities and security – Default judgment under Rule 22(1) – Substituted service by publication – Proof by affidavit and annexures – Entitlement to principal, contractual and decretal interest, general damages and costs.
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2 June 2023 |
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Application to restrain leasing and seek committal over attached property dismissed for wrong forum under section 38 CPC.
Civil Procedure – Execution – Section 38(1) CPC – Questions relating to execution, discharge or satisfaction of a decree to be determined by the executing court and not by a separate suit. Execution law – Attached property – A purchaser/lessee of attached property is the judgment-debtor’s representative and bound by the decree as to the interest transferred. Contempt of court – High threshold for committal; conduct consisting only of intention or call for expressions of interest may be insufficient
Procedure – Separation of execution remedies from separate civil or criminal proceedings; proper forum required
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2 June 2023 |
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Court lifted the corporate veil and held company directors liable for unpaid instalments under a consent decree.
Civil procedure – lifting/piercing corporate veil – requirements to show sham, fraud or concealment of assets to hold directors liable
Execution – enforcement of consent judgment/settlement where instalments unpaid
Evidence – affidavit as evidence and balance of probabilities standard in civil claims
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2 June 2023 |
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Plaintiff proved breach of dealership agreement; defendant ordered to pay outstanding price with interest and costs.
Commercial contract – dealership agreement – breach by non-payment – invoices and dishonoured cheques as proof – signatures and document comparison – admissibility/weight of unwitnessed statement under Rule 56(3) – specific (loss of profit) damages require strict proof – interest awarded (commercial and court rates) and costs.
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2 June 2023 |