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 LIMITED3RD 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.

IN THE HIGH COURT OF TANZANIA (COMMERICLA DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 11 OF 2010 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 defendants 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.

IN THE HIGH COURT OF TANZANIA (COMMERICLA DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 29 OF 2010 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 defendants/ respondents 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 RulesProceedings 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 courts notice requiring the respondent to show cause why the reliefs sought should not be granted. Where service /notice of a petition is effected without Courts 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 damages together 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.

IN THE HIGH COURT OF TANZANIA (COMMERICLA DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 7 OF 2010 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.

IN THE HIGH COURT OF TANZANIA (COMMERICLA DIVISION) 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 pendency of 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.

IN THE HIGH COURT OF TANZANIA (COMMERICLA DIVISION) 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 No.34/2003(DSM) (Unreported) CONSTRUCTION CO.LTD Civil Appeal

IN THE HIGH COURT OF TANZANIA (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 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. 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.