Case Not 2010 Decisions

8/3/2019 Case Not 2010 Decisions

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IN THE HIGH COURT OF TANZANIA

(COMMERICLA DIVISION)

AT DAR ES SALAAM

COMMERCIAL CASE NO. 5 OF 2010

JUMA OMARY MGAZA………………………………………………………….PLAINTIFF

VERSUS

NBC LIMITED………………………………………………………………..1ST DEFENDANT

IMMA ADVOCATES………………………...…………………………….2ND DEFENDANTS

MAJEMBE AUCTION MART LIMITED…………………………………3RD DEFENDANTS

RULING BY Hon. Makaramba J.

The ruling was delivered on 9/08/2010.

Law of Civil Procedure: Cause of action- for a plaintiff to be entitled to a relief against

the defendant he/she must show facts attributable to the defendant which have caused

some injury to the plaintiff.

Law of Civil Procedure- Where a plaint does not disclose a cause of action it must be

rejected.

Briefly:

The plaintiff had failed to service his overdraft advanced to him by the 1st defendant. He

brought the suit against the defendant, inter-alia praying for a decree and order that he

was entitled to a Government support under its economic rescue plan, waiver o f the

interest since 2008 and order plaintiffs to pay only600, 000 as an overdraft facility.





AT DAR ES SALAAM


MASUMIN PRINTWAYS AND STATIONERS LTD…………………………….PLAINTIFF

VERSUS

THE SAVINGS AND CREDIT COOPERATIVE UNION

LEAGUE OF TANZANIA (1992) LTD………………………………………....DEFENDANT

Judgment by Hon Makaramba J, Delivered on 19/8/2010

Cases Referred:

Davis v. Mohanlal Karamshi Shah (1957) E.A. 352 Angela Mpanduji vs. Ancilla Kilinda (1985) T.L.R 16 (HC)Rugarabamu Archad Mwombeki vs. Charles Kizigha and Three Others (1984) T.L.R.350(HC)The Cooper Motor Corporation Ltd. vs. Moshi/Arusha Occupational Health Services (1990) T.L.R 96 (CA)Eastern Radio Service vs. R.J Patel (1962) E.A. 818 YF Gulan Hussein vs. French Somaliland Shipping Co. LTD (1959) E.A. 25 Dembenictis & Others vs. Central Africa Co. Ltd & another (1967) E.A 310.

Law of Civil Procedure; Order VIII Rule 14(2) (b) of the CPC Cap 33 R.E. 2002;

Where a defendant fails to file a written statement of defense and fails to satisfy the

Court for such failure, the court can not extend time, instead it may, on application by

one part order Ex-parte proof.

Law of Contract: The determination of an award of punitive damages involves a careful

examination of the defendant’s conduct and state of mind at the time of misconduct as

they are used to punish the party at fault in bad faith.

Law of Contract: Assessment of damages cannot be based on unsubstantiated figure.

Law of Contract: where a successful party was deprived of the use of goods or money

by reason of wrongful act on the part of the defendant, the party who has been so

deprived of the use of goods or money to which he is entitled should be compensated

for such deprivation by the award of interest.





AT DAR ES SALAAM


SUPER CONSTRUCTION CO. LTD…………………………..………………….PLAINTIFF

VERSUS

BLUE FLOWER INVESTMENTS LIMITED

t/a BLUE FLOWER LIMITED LIMITED……………………………………….DEFENDANT

Ruling on an application for stay of proceedings by Hon.Mruma J,

The Law of Civil Procedure: The court will not grant an ex-parte order where the

defendant’s/ respondent’s address is within the courts’ locality; instead it will order a

notice to issue to that defendant.

The arbitration Act, Cap.15 R.E. 2002; Section 6 and Rule 5 of the Arbitration Rules-

Proceedings must be stayed where there is a submission.

The Arbitration Rules; rule 10: Notice to the person likely to be affected by a petition

is mandatory, and reply to a petition is not automatic but subject to a court’s notice

requiring the respondent to show cause why the reliefs sought should not be granted.

Where service /notice of a petition is effected without Court’s Order to that effect, the

respondent cannot be quizzed by the court to explain his delays to file a reply to the

petition within 21 days of service.

The Law of Civil Procedure: The 21 days rule for filing an answer to the claim does

not apply to the proceedings under the Arbitration Act.

The law of civil procedure: The Court cannot act on a defective application or

document.

Briefly: Basically there was a claim of breach of contract and prayers for damagestogether with moneys payable under a construction work agreement. The Defendant

applied for a stay of proceedings pending arbitration and while pending the application,

the plaintiff brought an application for injunction against the defendant. The court

ordered stay of the application for injunction and issued an order of maintaining the

status quo, whereby it dealt with the petition for stay. The petition for stay was found

incompetent and defective on procedural grounds and hence struck out.





AT DAR ES SALAAM


THE ATTORNEY GENERAL…………………………………..………………….PLAINTIFF

VERSUS

M/S DENGARD SYSTEM (T) LTD…………………………………………….DEFENDANT

Ex-parte Judgment by Hon. Makaramba, J.

Law of Contract: A claim for general damages must be substantiated by concrete

evidence.

Briefly:

The Ministry of infrastructure Development (formerly the ministry of works) entered into

a contract with the defendant for installation of ticket vending and validating machines at

the Magogoni/Kigamboni Ferry in Dar es Salaam. But the defendant delayed in

completion of the obligations as stipulated in the contract hence the suit, and ultimately

the ex-parte judgment since, despite attempts to serve the defendants and eventually

substituted services were futile.





AT DAR ES SALAAM

COMMERCIAL CASE NO.20 OF 2010

AFRICAN BANKING CORPORATION TANZANIA LIMITED.……………….PLAINTIFF

VERSUS

M/NASSOR AND COMPANY LIMITED……………………………………….DEFENDANT

Ex-parte Judgment by Hon. Mruma, J.

The law of Civil procedure: An application for setting aside an order for ex-parte proof

cannot be granted where it has already been overtaken by events(i.e. at the pendencyof judgment),since ,if granted it would amount to arresting the pending judgment.

Briefly;

The parties had entered not a lease facility secured by both floating and fixed charges.

The Defendant defaulted to service the facility and hence this suit to recover the

amount. The defendant could defend the suit against it due to failure to file his written

statement of defense and his application for setting aside an to ex-parte proof was

rejected for it having been overtaken by events.





AT DAR ES SALAAM

MISCELLANEOUS CIVIL CASE NO.5 OF 2010

IN THE MATER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF

CERTIORARI, MANDAMUS AND PROHIBITION

AND

IN THE MATTER OF THE DECISION OF THE COMMISSIONER GENERAL

TANZANIA REVENUE AUTHORITY AND COMMISSIONER FOR CUSTOMS AND

EXCISE DATED 16TH FEBRUARY,2005 AND 23RD FEBRUARY 2005

BETWEEN

ISLAM SALEHE NAHDI LIMITED………………………..……………………..APPLICANT

AND

THE COMMISSIONER GENERAL

TANZANIA REVENUE AUTHORITY……………………..…..………..…1ST DEFENDANT

THE COMMISSIONER FOR CUTOMS AND EXCISE…………….……2ND DEFENDANT

THE ATTORNEY GENERAL……………………………………………...3RD DEFENDNAT

Ruling delivered by Makaramba, J.

A ruling on reserved reasons on the Preliminary objection against an application for

leave to apply for prerogative orders out of time.

Cases referred:

NBC LIMITED VS. PARTNERS CONSTRUCTION CO.LTD Civil Appeal

No.34/2003(DSM) (Unreported)




(COMMERCIAL DIVISION)

AT DAR ES SALAAM

COMMERCIAL CASE NO.11 OF 2010

MASUMIN PRINTWAYS & STATIONERS LTD…………….…..……….... PLAINTIFF

VERSUS

THE SAVINGS AND CREDIT COOPERATIVE UNION

LEAGUE OF TANZANIA (1992) LTD……………………………………..…DEFENDANT

Judgment delivered by Makaramba J.

Cases referred:

Eastern Radio Service V. R.J Patel (1962) E.A 818

Y.F Gulan Hussein Vs. French Somaliland Shipping Co Ltd [1959] E.A 25

The Cooper Motor Corporation Ltd. Vs. Moshi/Arusha Occupational Health Services

[1990] T.L.R. 96 (CA).

Law of Contract: where a successful party was deprived of the use of goods or money

by reason of wrongful act on the part of the defendant, the party who has been sodeprived of the use of goods or money to which he is entitled should be compensated

for such deprivation by the award of interest.

Law of Contract: Assessment of damages cannot be based on unsubstantiated

figures.

Law of contract: General damages need not be specifically pleaded and may be asked

for by a mere statement or prayer of claim.

Briefly.

The Defendant, ordered from the Plaintiff and was supplied with goods worth

Tshs.43,613,072/= and that the Defendant paid only Tshs.13,316,152/=. Defendant has

not paid the remaining balance of Tshs. 30,297,920/= despite being reminded by the

Plaintiff to pay the said balance.

Case Not 2010 Decisions

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