VI) REPRESENTATIVE SUITS
National Agricultural and Food Corporation vs Mulbadaw Village Council and Others (1985) TLR 88, thus:-
“….Each claim is different from the other …..they were individual claims. A person may act and represent another person, but we know of no law or legal enactment which can permit a person to testify in place of another…..direct or incontestable documentary evidence is required to sustain a …..claim. (Emphasis provided).
The proceedings of Representative Suit ought to have been conducted, in our view, pursuant to the provisions of Order 1 R 8(1) of the CPC which provides:-
“Where there are numerous persons having the same interest in one suit, one or more of such persons may, with permission of the court, sue or be sued or may defend in such suit, on behalf of or for the benefit of all persons so interested……” (Emphasis provided).
K. J. Motors & 3 Others vs Reichard Kashamba and Others, Civil Appeal No. 74 of 1999 CA
1. The provisions of section 134 (now s. 139) of the Employment Ordinance do not exclude the application of Order 1 R 8(1) of the CPC to employment cases.
2. The said Rule 8(1) governs certain categories of cases and requires such cases to be brought with leave of the court.
3. The discretion or option provided under Order 1 R 8(1) is given to the parties – either to sue as individuals or to be represented by one or some of them for and on behalf of the others.
4. Before granting leave to sue in a representative capacity, the court must satisfy itself that the complainants do exist and that they have duly mandated their representative to sue on their behalf.
In the Kashamba case, the Court concluded by stating that:-
“We are firmly of the view that compliance with Order 1 R8 is a necessary requirement even in employment suits…. (Emphasis provided).
The Court of Appeal in the land mark case in as representative suit are concerned DIRECTOR, RAJANI INDUSTRIES LTD VERSUS ALLY KANUWA & 26 OTHERS CIVIL APPEAL NO. 98 OF 2009 subscribe to the foregoing views in Kashamba case and proceed to hold that
“the same are authoritative and binding to the High Court. Failure to comply with that fundamental requirement that is, non compliance with Order 1 Rule 8(1), is fatal”
At the end of the course students are expected to be able to;
a) Draft pleadings for a wide range of persons including minors, persons of unsound mind, public officers, firms and corporate bodies;
2. HEARING OF SUITS
N, B) at the end of the course students are expected to be able to;
b) Handle hearing of civil cases in courts of law and record proceedings;
[1975] LRT n. 17
Fredrick Selenge v. Agness Masele [1983] T.L.R. 99
The suit called on for hearing has reference to hearing of suit and not mere preliminary hearing
- Who has a right to begin?
r. 1 O. XVIII, Cap. 33 R.E. 2002 – it is the plaintiff.
r. 2(2) O. XVIII, Cap. 33 R.E. 2002, -the defendant follows immediately after the
plaintiff.
plaintiff.
-Taking evidence- narrative form-
r. 5 O. XVIII, Cap. 33 R.E. 2002
The evidence of each witness shall be taken down in writing, in
the language of the court, by or in the presence and under the personal
direction and superintendence of the judge or magistrate, not ordinarily in
the form of question and answer, but in that of a narrative and the judge or
magistrate shall sign the same. Questions objected to and allowed by court
the language of the court, by or in the presence and under the personal
direction and superintendence of the judge or magistrate, not ordinarily in
the form of question and answer, but in that of a narrative and the judge or
magistrate shall sign the same. Questions objected to and allowed by court
-Exception to the general rule (r.5 above)
r. 6, O. XVIII, Cap. 33 R.E. 2002 –question and answer could be recorded.
Where any question put to a witness is objected to by a party or
his advocate, and the court allows the same to be put, the judge or
magistrate shall take down the question, the answer, the objection and the
name of the person making it, together with the decision of the court
thereon.
his advocate, and the court allows the same to be put, the judge or
magistrate shall take down the question, the answer, the objection and the
name of the person making it, together with the decision of the court
thereon.
NBC Ltd v. B & E Investment Limited & Dorein Francis Kanemile, Commercial Case No. 14/2002, HCT Commercial Division, at DSM Registry (unreported)
Read Appendix iii to the Book: Binamungu and Ngwilimi (2006) Regulation of Banking Business in Tanzania, Mzumbe Book Project, Mzumbe.
-Common symbols used in recording proceedings
XX;
XXD;
RXD;
ROFC
-Recalling witnesses
r. 12, O. XVIII, Cap 33 R.E. 2002
-Adjournments
O. IX CPC, Cap. 33 R.E. 2002
-Appearance and consequences of non- appearance--- O. IX Cap. 33 R.E. 2002
If the plaintiff appeared but the defendant with no justified cause fail to appear the court can proceed exparte
If the plaintiff fail to appear but the defendant appeared the court may dismiss the suit unless the defendant admit wholly or partly of the plaintiff claim of which the court proceed to enter judgement for the part agreed and dismiss the rest
Apply to set aside dismissal order- don’t appeal against it (dismissal order).
Said Abdallah Kinyanyite v. Fatuma Hassan & Jibrea Auction Mart, Civil Appeal No. 87/2003, HCT DSM Registry (unreported), Shangwa, J.
-Effect of dismissal of a suit and possible remedies
-No case to answer
Mwalimu John Paul Muhozya v. AG [1996] T.L.R. 229
DAIKIN AIR CONDITIONING (E.A.) LTD v HARVARD UNIVERSITY 1996 TLR 1 (HC) Judge Samatta J
THEOBALD MAZOBA t/a BAOBAB BEACH BUNGALOW commercial case No 67 of 2008 Dar es Salaam (HC) Per Mruma J
A submission of no case to answer is rarely preferred in civil suits as the court has discretion after refusing a no case to answer plea to proceed to consider the suit on the strength of the evidence adduced by the plaintiff only. This is so because the court may be of the view that by making a plea of no case to answer, on the evidence adduced by the plaintiff the defendant feels that he has nothing to offer in defence.
Condition for the grant of submission of No case to Answer in civil cases to warrant this court to call upon the defendant to give its defence
-THEOBALD MAZOBA t/a BAOBAB BEACH BUNGALOW commercial case No 67 of 2008 Dar es Salaam (HC) Per Mruma J The arguments are pegged on the following grounds:-
(i) That there is no cause of action against the defendant ie the plaintiff is not privy to the contract, or does not have power of attorney neither a registered owner nor a shareholder or a person claiming under the said Baobab Beach Bungalow, therefore he has no right to sue.
(ii) That the plaintiff is not a proper party to this suit and
(iii) That the evidence adduced by the plaintiff has not established a prima facie case against the defendant.
Refer
Mwalimu Paul John Muhozya versus Attorney General (No.2U1996] TLR 229,
National Bank of Commerce Ltd versus Ubungo Petrol Station Ltd and another, Commercial Case no. 141 of 2001(unreported),
John Byombalilwa versus Agency Maritime International CD Ltd (1983) TLR,
Kayanja versus New India Assurance Co. Ltd (1968 Twiddle Versus Atkson
Eminent authors including Mulla on Civil Procedure Code)
Ex-parte judgements
Meaning
Ex-parte judgements, this is the judgement reached in absence of the defendant
Ground for the grant of Ex-parte Judgement/Reason/Justification
-No filing of WSD and non-appearance by the defendant.
Moshi Textile Mills v. B.J. De Voest [1975] LRT no. 17, Makame, J.
Mbeya Cement Co Ltd & Director Mbeya Cement Co Ltd v. Omari haji Mwambe & Ramadhani Kasimu, Civil Appeal No. 181/2007, HCT at DSM (unreported), Mihayo, J.
Setting aside ex-parte judgement- where to file and what to consider?
i. -uncertainty of service of summons is sufficient reason as per
T.M. Sanga v. Sadrudin, G. Alibhai & Two others [1977] LRT n. 51
ii. Sickness of the defendant or serious issues out of his natural control ie death of defendant issues or close relative
iii. Attendance in the higher court in a different matter
iv.
Whether Negligence is the good ground to set aside the exparte Judgment
1st Adili Bancorp Ltd v. Mrs Dorah B. Mwenda & Dunhil Motors Ltd, Civil case No. 394 of 2000, HCT at DSM (unreported) Mihayo, J.
- improper recording of date for the court sessions leading to non attendance is pure negligence- not good ground for setting aside a dismissal order; delay to file an application unjustified.
Where to file the application to set aside the ex-parte judgement
Soza Plastic Industries v. Scolastica Chawala & 185 Others, Revision No 73/2012, HCT Labour Division, DSM Registry (unreported)- Rweyemamu,J.
to set aside exp-judgment file the matter in the court where the judgment was entered.
Whether revision can be preferred before setting aside ex –parte Judgment
Omary Abdallah Kaguna v. John Albino Baruti & others, PC Civil Appeal No. 14/2003, HCT at DSM (unreported)- Mwarija, J. Judgment 2007-
An ex –parted judgment must be set aside first before revision is preferred.
3. JUDGMENTS; DECREES; DRAWN ORDERS AND SETTLEMENT ORDERS
N, B)At the end of the course students are expected to be able to;
c) Identify judgements, rulings, drawn orders, decrees and settlement orders;
a) JUDGEMENT
Meaning
S.3 Cap 33 R.E. 2002
Osborn’s Concise Law Dictionary, 8thEd, p.187
‘The decision or sentence of a court in a legal proceeding. Also the reasoning of the judge which leads him to his decision, which may be reported and cited as an authority, if the matter is of importance, or can be treated as a precedent’.
Black’s Law Dictionary, 8thEd p. 846
‘A court’s final determination of the rights and obligations of the parties in a case’. The term judgement includes a decree and any order from which an appeal lies.
Types of judgement
Consent judgement; deferred judgement; final judgement; foreign judgement; Ex-parte judgement; judgement in persona mans in rem judgement
Form and substance
r. 4 O. XX Cap. 33 R.E. 2002
A judgement shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision
Nkungu v. Mohamed [1984] T.L.R. 46
WHAT SHOULD BE REFLECTED IN THE JUDGEMENT
According to Chipeta, the following should be reflected in a valid judgement:
-reasoned account and analysis of the evidence, findings of fact thereon;
-exposition of the principles of law applicable to such facts;
-the decision as to the rights and liabilities of the parties to the suit.
r. 3 O. XX Cap 33 R.E. 2002- judgement must be signed on the date delivered.
N.B No rule of thumb as to the exact form a judgement should follow.
Rectification of errors in judgements and decrees-
r. 3 O. XX Cap. 33 R.E. 2002 and s.96 of Cap. 33 R.E. 2002
Peter Temba v. DSM City Council & Hassan Ibrahim Sobo, Civil Appeal No. 162/2002, HCT at DSM (unreported), Oriyo,J. Rectification of a decree-
How sought?
ss. 95 and 96 of the Civil Procedure Code, Cap. 33 R.E. 2002. File,
Chamber summons supported by an affidavit
Slip rule
b) DECREE
-Meaning
‘formal statement, extracted from a judgement which declares the rights of the
parties’
parties’
Osborn Law Dictionary, 8thEd, p. 109
‘ An order of a court pronounced on the hearing of a suit’
-Content
r.6(1) O. XX, Cap. XX R.E. 2002.
The decree shall agree with the judgement; it shall contain the no of the suit;
The names and descriptions of the parties;
Particulars of the claim;
Specify reliefs granted or other determination of the suit.
Date of the decree shall be the date of the judgement when it was delivered (r.7);
Legal effect of variance between judgement and decree
- Decree is rendered invalid
See
- Ibrahim Kassamali & 3 Others v. Theodica Mselle, Civil Appeal No. 101/2007, HCT at DSM Registry (unreported)- dates on judgement and decree differed.
- Pius A. Macha v. National Lotteries Board, Civil Appeal No. 169/2004, HCT at DSM (unreported), difference in dates between the date on the judgement and that of the decree
- Abdallah Rashidi Abdallah v. Sulubu Kidogo Amour & Said Issa Said, Civil Appeal No. 94/2006, CAT at Zanzibar (unreported)
- –variance between the judgement date and that of a decree
- Premier dairy Ltd v. Sagoo & another [2010] 1 EA 334 (CAK) –appeal struck out with costs. It is not enough to argue that it is a court which prepared such a record.
Remedy
- Apply for rectification under ss.95 and 96 of the CPC, Cap 33 R.E. 2002.
- Peter Temba v. DSM City Council & Hassan Ibrahim Sobo, Civil Appeal No. 162/2002, HCT at DSM (unreported), Oriyo,J. Rectification of a decree-
( c ) Drawn Order
It is drawn from a ruling. It is just like a decree. Rulings in applications for
injunctions result into drawn orders.
injunctions result into drawn orders.
(d) Settlement orders/Decrees
These result from mediation proceedings.
APPEALS
MILIMO MASILIKALE VS. LEMENGA MASSA CIVIL APPEAL NO. 38 OF 1989 – DODOMA HC RUHUMBIKA, J.
The unsuccessful party is informed of his rights of appeal to the Court of Appeal but subject to:
(1) Leave to appeal.
(2) For cases originated from PC Certification of a point of law.
(3) Limitation period.
Appeals from Decrees
Appeal from original decree S.70.-(1)
An appeal shall lie to the High Court from every decree passed by a court of a resident magistrate or a district court exercising original jurisdiction.
An appeal may lie from an original decree passed ex parte.
No appeal shall lie from a decree passed by the court with the consent of the parties.
Appeals from final decree where no appeal from the preliminary decree S.71
Where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
Decision where appeal heard by two or more judges S.72.-(1)
Where an appeal is heard by a Bench of two or more judges, the appeal shall be decided in accordance with the opinion of such judges or of the majority (if any) of such judges. Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:
Provided that where the bench hearing the appeal is composed of two judges and the judges composing the bench differ in opinion on a point of law, they may state the point of law upon which they differ, and the appeal shall then be heard upon that point only by one or more of the other judges, and such point shall be decided according to the opinion of the majority (if any) of the judges who have heard the appeal including those who first heard it.
No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction S73.
No decree shall be reversed or substantially varied, nor shall any case be remanded, on appeal, on account of
any misjoinder of parties
or causes of action
or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the court.
Appeal from Orders
Orders from which appeals lie S74.-(1)
Act No. 12 of 2004 Sch.
An appeal shall lie to the High court from the following orders of the District Courts, Resident Magistrate’s Courts and any other tribunal, the decisions of which are appealable to the High Court,
(a) an order superseding an arbitration where the award has not been completed within the period allowed by the court;
(b) an order on an award stated in the form of a special case;
(c) an order modifying or correcting an award;
(d) an order filing or refusing to file an agreement to refer to arbitration;
(e) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;
(f) an order filing or refusing to file an award in an arbitration without the intervention of the court;
(g) an order under section 69;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention as a civil prisoner of any person except where such arrest or detention is in execution of a decree; or
(i) any order made under rules from which an appeal is expressly allowed by rules.
Act No. 12 of 2004 Sch.
No appeal shall lie against or be made in respect of any preliminary or interlocutory decision or order of the District Court, Resident Magistrate’s Court or any other tribunal, unless such decision or order has effect of finally determining the suit.
Other orders
No appeal shall lie from any order made by a court; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. S.75
General Provisions relating to Appeals Powers of the High Court on appeal S76.-
The High Court in the exercise of its appellate jurisdiction shall have power-
(a) to determine a case finally;
(b) to remit a case for re-trial;
(c) to frame issues and refer them for trial; or
(d) to take additional evidence or to require such evidence to be taken.
TOPIC 4. TAXATION OF COSTS IN SUBORDINATE COURTS AND TRIBUNALS
N, B) at the end of the course students are expected to be able to;
d) Draft and file applications for taxation of costs;
a) Meaning of:-
Taxation: the process of taxing or imposing a tax
Msoffe, J.H. (2009) ‘A Seminar on Principles and Practices of Taxation of Costs, 17th-18th September 2009’, A Paper presented to Judiciaries of EAC Member States, A paper presented at Arusha (unpublished), p.1.
Costs
Black’s Law Dictionary (8thEd) p. 349- amount paid or charged for something; price or expenditure.
Arbogast Fundi v. Masud Zaid (1980) T.L.R. 125 at p.127.
Wasted costs
Taxing master
r. 3 GN. 515 of 1991, Registrar, District Registrar or Deputy Registrar of the High Court or such officer of the court as the Chief Justice may appoint
b) Purpose of taxation
c) When does the taxation take place?
d) Who should or shouldn’t pay costs is a matter for the court to say and not the taxing master.
-Dr. Masumbuko R.M. Lamwai v. Venance Francis Ngula & the Att.General, Civil Appeal No. 56/1997, CAT (unreported).
e) Types of costs
Party to party
Advocate client cost
Costs as a sanction e.g. wasted costs
e) Rules applicable
-Costs are discretionary
s.30 (1) Civil Procedure Code, Cap 33 R.E. 2002
r.11(1) GN. 515/1991
Sarkhar’s Law of Civil Procedure (8thEd), p.
f) Proper Taxing Master
-the court where the case terminates
Maximillian Rwabulala v. Emilian Kalugala & Another [1987] T.L.R. 2
g) Limitation Period
-60 days from the date of delivering the judgement.
M/S Sopa Management Limited v. M/S Tanzania Revenue Authority, Civil Appeal No 25 of 2010, CAT at Arusha, (unreported).
Tanzania Breweries Limited v. Augustino Suluo Ghobert T/A Sangoma Grocery, Commercial Case No. 2/2006, HCT, Commercial Division, at DSM (unreported).
h) Contents of a Bill of Costs
-Instruction fees
George Mbuguzi and Another v. A.S. Maskini [1980] T.L.R. 53 at p.56
-Factors considered in computing instruction fees:-
-Amount of claim involved
-time occupied in hearing
-amount of research-modest, deep, shallow
Haider Bin Mohamed v. Khadija Binti Ali Bin Salem (1956) 23 E.A.C.A. 313.
-Disbursements
Wambura Chacha v. Samson Chorwa (1973) L.R.T. no. 4
Transport costs
Communication/consultation expenses-teleconferencing, emails, Faxes
Boots v. Mohawk Council of Akwasasne [2000] F.C. J. No. 312 (T.D.) quicklaw disbursements were allowed on the basis that the research was necessary and the costs were reasonable.
Julius Ishengoma Francis Ndyanabo v. The Att.General, Civil Appeal No. 64 of 2001, CAT –
Peter Mburu Echaria v. Priscilla Njeri Echaria [2007] eKLR 1.
Service of documents
Production of documents
Court fees
Perusal fees
i)Objection to taxation
How?
r.5(2) GN. No. 515/1991, The Advocates’ Remuneration and Taxation of Costs Rules, 1991. File a reference case by way of Chamber Application supported by an affidavit-
Who is to handle the matter?
Taxing officers at the District/RM Level- the matter goes to the single judge.
Limitation period 21days from the date of the ruling
r. 5(2) GN. No. 515/1991.
Approach of courts in reviewing decisions of Taxing Officers:-
(i) where there is an error of principle.
Thomas James Arthur v. Nyeri Electricity [1961] EA 492, Gould, JA.
Ali Nyamgunda v. Emilian Kihwili (1967) HCD no. 177
(ii) Where the Taxing Master’s award is manifestly excessive or low so as to appear unconscionable.
MGS International (T) Ltd v. Halais Pro- Chemie Industries Ltd, Commercial Case no. 3/2003, HCT at DSM (unreported), Kalegeya,J.
M.C. Pardhan v. Ali Mohamed Osman (1968) HCD no. 502
(iii) ignoring the scale
Premchand Raichand & Another v. Quarry Services of E.A Ltd & others [1972] E.A.162.
Steel Construction Petroleum Enginnering (EA) Limited v. Uganda Sugar Factory [1970] E.A. 141.
Mutamwega Bhatt Mugywa v. Charles Muguta Kajege, Taxation Reference No. 5 of 2010, CAT (unreported), p.14.
TOPIC 5. EXECUTION OF DECREES/DRAWN ORDERS AND SETTLEMENT
ORDERS
ORDERS
N, B) at the end of the course students are expected to be able to;
e) Draft and file pleadings for execution of decrees;
a) Meaning, manner of applying for them, Taking action
a. Meaning of Execution
b. Meaning of Decree
c. Meaning of Drawn Order
d. Meaning of settlement order
e.
b) What is drawn from the following
a. From a judgement a decree is drawn
b. From a ruling is a drawn order
c. From mediation is a settlement order
c) Modalities of execution
a. Attachment and sale of property
i. procedure and effect of breach
b. Committing a person to civil prison-conditions and limitations
i. Procedure and condition to commit a person to a civil prison
d) Objections to execution
a. What to object
b. Where (the proper court to file objection)
c. Whether objection to execution is appealable
d.
MILIMO MASILIKALE VS. LEMENGA MASSA CIVIL APPEAL NO. 38 OF 1989 – DODOMA HC RUHUMBIKA, J.
In this case the appellant married the objector/respondent daughter and paid bride price. The marriage proved futile and the divorce was granted up by the Court. The Appellant claimed the return of the bride price which was granted by the primary Court. In the execution of the Primary Court order the appellant/decree holder attached the cattle of the objector/the respondent who was also the further of the former wife
The objector/the respondent objected the attachment on the ground that he was not the judgment debtor rather her daughter
The Learned Judge in the HC held that
i. The attachment of the respondent cattle to execute his decree was improper as he was not the judgment debtor
ii. The appellant has the right to execute his decree against the property of the judgment-debtor, who has to bear his own cross.
e) Execution brief summary
TOPIC 4 EXECUTION
INTRODUCTION
• C.K. Takwani, Civil Procedure, (2007)5th Ed pp. 415-497
• Solil Paul et al, Mulla The Code of Civil Procedure (16th Ed) Vol. III PP2457-3000
• CPC Ss. 31-55 and Order XXI and O. XXXIX R. 1-8
• Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 Reg. 23-32
Reference
• S. 194A and 109Bof Act No. 13/2006 (Written Laws Miscellaneous Amendment Act)
• S. 16(3) and 33(3), The Courts (Land Disputes Settlements) Act, (Act No. 2 of 2002)
• S. 89(1) of the Employment and Labour Relations Act (No. 6 of 2004)
• Section 16 and 17 of the Government Proceedings Act (Cap 5 R.E. 2002)
CASES FOR REFERENCE
• DOWANS HOLDING SA COSTARICA and DOWANS TANZANIA LIMITED vs. TANZANIA ELECTICITY COMPANY LTD TANZANIA
• IMKE HELLA CAMPBELL-SMITH V. DOUGLAS WILLIAM CAMPBEL-SMITH (2000) TLR 355- HCZ
• Thomas Joseph Kimaro vrs. Apaisaria Martin Carl Mkumbo and Oscar Carl Mushi (2002) TLR 369
• KWIGA MASA v SAMWELI MTUBATWA 1989 TLR 103 (HC):
• Trans Africa Assurance Co v National Social Security Fund [1999] 1 EA 352 (SCU)
• Mrs. Nuru Mbaraka v. Awadhi Abeid Hiyala and Bahati Abeid Hiyala (2002) TLR 188
• OMOKE OLOO v WEREMA MAGIRA 1983 TLR 144 (HC):
• Nyanza Distributors Co. v. Geita General Stores (1977) LRT No. 2
• Objection to the Court which passed the decree: KANGAULU MUSSA v MPUNGHATI MCHODO 1984 TLR 348 (HC)
• Said Mnimbo and others versus. State Travel Services Ltd, Tourism Services Tanzania and Parastatal ector Reform Commission as Objectors (1999) TLR 233
• Mrs. Nuru Mbaraka vrs. Awadh Abeid Hiyala and Bahati Abeid Hiyala (2002) TLR 188
• Read: Diversey Lever East Africa Ltd v Mohanson Food Distributors Ltd and another
• [2004] 1 EA 43
• Loswaki Village Council and another v. Shibesh Abebe (2000) TLR 204
• Blue Star Service Station v. Jackson Musseti Enterprises (1999) TLR 80
• Laemthong Rice Company Limited vrs. Principle Secretary, Ministry of Finance (2002) TLR 389
• El- Nasr Export and import Company v. Nahdi Trading Company (2001) TLR 75
• Wankira Bethuel Maise and National Housing Corporation versus Kaiku Foya (1999) TLR 348
• Cf: East African Development Bank vrs. Blue Line Enterprises Ltd and ATH Mwakyusa (2005) TLR 203
• WILLOW INVESTMENT v MBOMBO NTUMBA AND TWO OTHERS 1997 TLR 93 (CA)
• E R Mutaganywa v. Ahmed J. Aladin and others 1996 TLR 285 (HC)
• Tanzania Electric Supply Company (TANESCO) vrs. Independent Power Tanzania Limited (IPTL) and others (2000) TLR 324
• Mathias Bucyana vrs. Registrar of Buildings (1998) TLR 117
• Tanzania Cotton Marketing Board v. Cogecot Cotton Co SA 1997 TLR 63 (CA)
• Nicholas Nere Lekule v. Independent Power (T) Ltd and another 1997 TLR 58 (CA)
• AERO HELICOPTER (T) LTD v F.N. JANSEN 1990 TLR 142 (CA)
• Dar es Salaam City Council vrs. The Registered Trustees of Catholic Church- Ukonga, HCT at Dsm, Misc. Civil Case No. 288 of 2003
• Also: Muniu v Giovanni [1995–1998] 1 EA 218
• Athanas Albert and 4 others vrs. Tumaini University College, Iringa (2001) TLR 63
• Utegi Technical Enterprises (T) Ltd and another v NBC Ltd [2004] 2 EA 344 (HCT)
• Jandu v Kirpal and another [1975] 1 EA 225 (HCK)
• Exclusive Estates Ltd v Kenya Posts and Telecommunications Corporation and another [2005] 1 EA 53 (CAK)
• East Africa Development Bank vrs. Blue Line Enterprises (Civil Application No. 57 of 2004)
EXECUTION-
INTRODUCTION
• Meaning
• CPC has not defined
• Re Overseas Aviation Engineering (G.B) Ltd (1962) 3 ALL ER 12
“The process of enforcing or giving effect to the judgment of the Court”
Presupposes the existence of a “judgment”
S. 3 (CPC) –the statement given by the judge or a magistrate of the grounds for a decree or order
S. 28-Pronouncement of judgment to be followed by the decree
WHAT’S CAPABLE OF BEING EXECUTED?
• S. 31 CPC- Decree or Order
• Decree (S. 3)- Formal expression of an adjudication which conclusively determines rights of the parties with regard to the controversy between the parties (e.g. rejection of a plaint(Read O. VII Rule 11, 12 and 13), issues relating to discharge or satisfaction of a decree)
• Does not include any order for dismissal for default
• Order: (s. 3 of the CPC)- Formal expression of any decision of a civil Court which is not a decree
• East Africa Development Bank vrs. Blue Line Enterprises (Civil Application No. 57 of 2004)
•
• CAT: A decision capable of being executed should be one that has given rights to the party seeking to execute
• Read also: Shyam and others v New Palace Hotel Ltd (No 2)[1972] 1 EA 199
• Exclusive Estates Ltd v Kenya Posts and Telecommunications Corporation and another [2005] 1 EA 53 (CAK)
• The order which dismissed the suit was a negative order which is not capable of execution.
COMPETENT COURTS
• S. 33- (a)Court which passed the decree
(b) Court to which decree sent for execution
• “Court which passed the Decree” includes:
– S. 34(a) The Court which actually passed the decree
– S. 32- Decree passed in exercise of Appellate jurisdiction- Court of first instance
– Where Court of first instance cease to exist or to have jurisdiction- the Court that would have jurisdiction at the time of making the Application
• Courts to which a decree is sent for execution
– A court which passed the decree is primarily the Court to execute it
– S. 34 CPC-Decree may be transferred to other courts for execution
• 34(1)Should there be an application by the decree holder. Form of Application- O. XLII R. (2)
• S. 34(2)-Court may transfer of its own motion- to a “subordinate court” of competent jurisdiction
• Read with O.XXI R. 4 READ WITH O. XXI Rule 7: RMS send to “any other court” other than the High Court. May execute or transfer for execution to other subordinate Court
• In any other Case to the RMs Court with jurisdiction
• Order XXI Rule 8 decree sent to High Court for execution, High Court to execute
TRANSFER PROCEDURE
• O. XXI R. 5: Transferring Court to send a copy of the decree, a certificate stating the extent of the execution to be carried out and a copy of an order for the execution of the decree, or if no such order, then a certificate to that effect
• O. XXI R. 6: To be filed by the executing the decree
• S. 36 CPC-Powers of executing Court similar to those of Court passing the decree
• S. 34 – Results of execution to be certified to the Court which passed the decree
TO WHICH COURT?
• S. 34: In whose local limits of the jurisdiction the judgment debtor actually resides or carries on business
• In whose local limits the property situate
• Courts passing the decree may decide to transfer
– Note: Territorial jurisdiction of the executing court is a condition precedent
– Executing Court must take the decree as it stands and execute according to its terms
Effects of transfer
• Take away the jurisdiction of Courts of first instance?
– CPC silent
– C.K. Takwani, Civil Procedure, pg. 420 “Once a Court which has passed the decree transfers it to another Competent Court, it would cease to have jurisdiction and can not execute the decree”
– This is in respect of only the extent of transfer and not other matters
APPLICATION FOR EXECUTION
• Order XXI Rule 9, 10(1), & 10(2)
• Application in Writing (O.XXI R. 10(2) except for decree for payment of money which may be made orally under O. XXI R. 10(1) provided that the judgment debtor is within the Courts precincts (Read also O. XXI R. 10(1A) regarding payments ordered under the LMA
• Application be made by: decree holder, transferee of a decree (S.40) and Order XXI R. 14, joint decree holders (O. XXI R. 13)
• Application by transferee be made by the Court which passed the decree (O. XXI R. 14) also applications against legal personal representative of the judgment debtor (S. 41 CPC)
• The decree may have been transferred by an assignment in writing or by operation of law
• No where stated that the legal personal representative of the decree holder may execute the decree
Where decree Assigned/transferred
• If it is by assignment:
– Notice of Application be given to the transferor and judgment debtor (Purpose: to determine once and for all and in the presence of parties concerned the validity or otherwise of the assignment/transfer
– Decree not to be executed until objections have been heard and determined
AGAINST WHOM CAN AN APPLICATION BE MADE?
• O. XXI R. 10- judgment debtor
• S. 41 legal personal representative of the judgment debtor.
• S. 38(2) whether or not one is a representative of the party is question to be determined by the court executing the decree
• Test for determining whether one is a representative of a party:
• Jandu v Kirpal and another [1975] 1 EA 225 (HCK)
• First whether any portion of the interest of the decree-holder or of the judgment-debtor, which was originally vested in one of the parties to the suit, has, by act of parties or by operation of law, vested in the person who is sought to be treated as representative, and,
• secondly, if there has been any devolution of interest, whether, so far as such interest is concerned, that person is bound by the decree.”
• Under Section 38 the question must be determined must be related to “the execution, discharge or satisfaction of the decree”
• Jandu v Kirpal and another (supra): The defendants’ interest arose after the decree and out of the execution of it, but the plaintiff challenges the decree itself saying that he had become the owner by adverse possession before the decree was passed. His claim has, therefore, nothing to do with “the execution, discharge or satisfaction of the decree”.
• Read also: Shyam and others v New Palace Hotel Ltd (No 2)[1972] 1 EA 199
FORM APPLICATION FOR EXECUTION
• Be signed and verified at the foot by the applicant or a person acquainted with the facts of the case
• Contents: as outlined under O. XXI R. 10(2)(a) through to 10(2)(j)
– Be accompanied by the copy of the decree (not mandatory)
– Different forms in land matters - DHLT
PROCEDURE AFTER APPLICATION
• O. XXI R. 15
• Court need to ascertain whether the Application complies with the provisions of O. XXI R. 10 to O. XXI R. 12
• Where complied admit and register
• If any defect is noted the same be amended.
• Court to reject application if not amended as directed
• Amendment be signed or initialed by the judge or magistrate
HEARING OF THE APPLICATION
• O. . XXI R. 15(4) upon being admitted thereto enter on the register the date when the same was made and order execution except
• O. XXI R. 20 If application made after one year after the date of the decree or made against legal representative of the deceased- notice is to be given to show cause
• No provision for hearing but in practice- notice to show cause has been issued in respect of all applications
• Limitation period for execution is 12 (twelve month) except for decree granting an injunction
NOTICE REQUIREMENT UNDER O. XXI R. 20
• Utegi Technical Enterprises (T) Ltd and another v NBC Ltd [2004] 2 EA 344 (HCT)
– The Court can dispense with the notice.
– Reasons for departing from rule should be recorded.
– O. XXI R.20(2)
STAY OF EXECUTION
• Relevant provisions: O. XXI R. 24-27 and O. XXXIX R. 5,6,7, and 8
• Stay be made only when there is a court order granting a right or commanding or directing the respondent to do something:
• Athanas Albert and 4 others vrs. Tumaini University College, Iringa (2001) TLR 63
• Application for stay be made:
– To the Court which passed the decree
– The Court to which decree is sent for execution
– The Court having Appellate jurisdiction over the decree
Order XXI R. 24: The Court to which a decree is sent for execution can stay execution for a “reasonable time” to allow the applicant to apply to the Court which passed the decree or the Appellate Court for stay of execution
-Does not Apply where execution is sought pending Appeal
• Dar es Salaam City Council vrs. The Registered Trustees of Catholic Church- Ukonga, HCT at Dsm, Misc. Civil Case No. 288 of 2003
• Also: Muniu v Giovanni [1995–1998] 1 EA 218
• Once appeal proceedings have been commenced by filing notice of appeal to the Court of Appeal of Tanzania, only the CAT can stay execution
• AERO HELICOPTER (T) LTD v F.N. JANSEN 1990 TLR 142 (CA)
• Section 95 of the Civil Procedure Code can not confer jurisdiction on the High Court to order a stay of execution pending appeal to this court
• Stay pending appeal - irreparable loss would result which could not be adequately compensated by damages.
• Nicholas Nere Lekule v. Independent Power (T) Ltd and another 1997 TLR 58 (CA)
• Applicant required to give details and particulars of loss it would suffer:
• Tanzania Cotton Marketing Board v. Cogecot Cotton Co SA 1997 TLR 63 (CA)
• Prospects of the Appeal taking off
• Mathias Bucyana vrs. Registrar of Buildings (1998) TLR 117
• Principles to take into acount:
• Arusha International Conference Center vrs. Edwin William Shetto (2002) TLR 265
• If the applicant will suffer irreparable loss
• Prima facie likelihood of success
• Balance of Convenience
• Tanzania Electric Supply Company (TANESCO) vrs. Independent Power Tanzania Limited (IPTL) and others (2000) TLR 324
STAY PENDING APPEAL
• The Appeal must have been filed and the same must be properly before the Court
• WILLOW INVESTMENT v MBOMBO NTUMBA AND TWO OTHERS 1997 TLR 93 (CA)
• E R Mutaganywa v. Ahmed J. Aladin and others 1996 TLR 285 (HC)
• Where leave is a pre requisite, if not obtained stay can not be granted???????
• Wankira Bethuel Maise and National Housing Corporation versus Kaiku Foya (1999) TLR 348
• Cf: East African Development Bank vrs. Blue Line Enterprises Ltd and ATH Mwakyusa (2005) TLR 203
• Where notice is not lodged in the CAT
• El- Nasr Export and import Company v. Nahdi Trading Company (2001) TLR 75
•
• O. XXI R. 27:When suit is pending in any Court
• Object:
• To enable the judgment debtor and decree holder to adjust their claims against each other
• To prevent multiplicity of execution Applications
• There must be:
• Execution proceedings pending
• A pending suit by the judgment debtor
• Pending suit must be against the decree holder
• The provisions are not mandatory- uses the word “may”
• Parties liberty to adjust claims does not mean to renegotiate the decree
• Parties not allowed to renegotiate the decree
• Laemthong Rice Company Limited vrs. Principle Secretary, Ministry of Finance (2002) TLR 389
• Consider whether the judgment debtor has a substantial claim against the decree holder
• Note be taken of the underlying principle that a successful party is entitled to enjoy the entitlements under the judgment unless there are good and cogent reasons
• Where granted, be granted subject to security or other terms
• The discretion under this Rule must be exercised with great care and only in special cases
• A suit must be pending before the same court
• Time within which such Application may be brought: 60 days from the date of the judgment
• Blue Star Service Station v. Jackson Musseti Enterprises (1999) TLR 80
• Where application for stay s dismissed filing of a similar application an abuse of the process
• Where dismissed not on the merits, a fresh application may be brought
• Time within which Application may be made
• CAT: Reasonable time being one to two months:
• Loswaki Village Council and another v. Shibesh Abebe (2000) TLR 204
MODES OF EXECUTION
• O. 21 R. 28-34
• Several depending on the type or nature of the particular decree
• Applicant chooses the mode but the Court’s must satisfy itself that the mode chosen and the Application are in accordance with the law
• O. 21 R. 28: Decree for the payment of money
• by attachment and sale of the judgment debtor’s property,
• detention of the judgment debtor s a civil prisoner
• or by both
• Arrest and detention regulated by O. 21 r. 35-39
PROCEDURE FOR ARREST AND DETENTION
• An application to the Court
• Courts issue a notice to the JD to appear before the Court and shoe cause why he should not be committed to prison
• If the JD fails to appear arrest warrant may be issued (Form)
• The responsibility of the DH pay subsistence allowance before arrest and imprisonment of the JD
MODES OF EXECUTION
• O. 21 r. 29:Decree for a specific movable property
• by seizure, if practicable, of such movable property and delivering it to the decree holder, or a person appointed by the DH
• detention of the judgment debtor as a civil prisoner,
• attachment of the judgment debtor’s property,
• or by all such above means
ATTACHMENT OF PROPERTIES
• Properties
– O. 21 r. 42: General: Seizure and keep in custody by the officer seizing except for properties
– O. 21 r. 43: Agricultural produce
– O. 45:Debt share and other property not in possession of JD- By a prohibitory order
– O. 21 R. 46: Share in Movables-By prohibition order prohibiting transfer
– O. 21 r. 47 Salary-(Notice of the order on the amount to be withheld to be served on the employer or paying authority to with hold and remit to Court) Rf S. 48(h)
– O. 21 r. 48 and 49: Attachment of partnership property
– O.21 r. 50:Negotiable instruments
– R. 51:Property in custody of Court
– R. 52:Decrees
• S. 48: Properties not capable of being attached (proviso)
• “Who has priority over the goods of a judgment debtor? The debenture holder, or the execution creditor (the decree holder?)”
• Read: Diversey Lever East Africa Ltd v Mohanson Food Distributors Ltd and another
[2004] 1 EA 43
• Law may exclude certain properties
• Attached properties must belong to the judgment debtor
– Said Mnimbo and others versus. State Travel Services Ltd, Tourism Services Tanzania and Parastatal ector Reform Commission as Objectors (1999) TLR 233
– Mrs. Nuru Mbaraka vrs. Awadh Abeid Hiyala and Bahati Abeid Hiyala (2002) TLR 188
• O. 21 R. 30: Decree for specific performance of a contract or for an injunction
• Judgment debtor has had time to comply but failed then may be executed:
– by detention as civil prisoner,
– attachment of the judgment debtors property, o
– by detention and attachment of properties
– By directing that which ought to be done to be done at the expenses of the JD
• O. 21 r. 33: Decree for delivery of immovable property e.g. a house may be executed:
– by delivery of such property to the decree holder,
– where need be by evicting any person bound by the decree who is in occupation of the property)
OBJECTION TO ATTACHMENT
• Order 21 r. 57-62
• Third party objects to attachment on ground that such property is not liable to attachment on account that on the date of attachment he had some interest on the property
• If such happen the Court is to investigate the claim by hearing both parties
• Nyanza Distributors Co. v. Geita General Stores (1977) LRT No. 2
• Objection to the Court which passed the decree: KANGAULU MUSSA v MPUNGHATI MCHODO 1984 TLR 348 (HC)
• OMOKE OLOO v WEREMA MAGIRA 1983 TLR 144 (HC):
• a party can decide to bypass objection proceedings and resort to a suit to recover his wrongly seized property.
• Desirable that the same Magistrate who heard the case be assigned to determined objection proceedings:
• Mrs. Nuru Mbaraka v. Awadhi Abeid Hiyala and Bahati Abeid Hiyala (2002) TLR 188
STANDARD OF PROOF
• Trans Africa Assurance Co v National Social Security Fund [1999] 1 EA 352 (SCU)
• An objection application is an interlocutory application and that the standard of proof was on a “balance of probabilities”
KWIGA MASA v SAMWELI MTUBATWA 1989 TLR 103 (HC):
the duty of objector to adduce evidence to show that at the date of attachment he had some interest in the property attached
OBJECTION PROCEEDINGS
• O. 21 R. 62, and O. XXI R. 101: Orders in objection proceedings not appealable
– Thomas Joseph Kimaro vrs. Apaisaria Martin Carl Mkumbo and Oscar Carl Mushi (2002) TLR 369
– Objection proceedings are instituted by way of an application (Chamber summons and affidavit)
• A final order
• where application is successful is to release the property y or part thereof as the case may be from attachment
• Where unsuccessful the Court will disallow the claim
• A party aggrieved by the final order may institute a suit
• Upon being determined the decision final and conclusive
DISSPOSESSION OF IMMOVABLE PROPERTY
• O. XXI R. 98-101
• A third party complaining of dispossession of his immovable property by the DH or complains that the property has been sold in execution of a decree
• Complains to Court which passed the decree against such dispossession by filing an ordinary application
• The procedure after a complaint is instituted is the same as it is for objection proceedings
• The final order may be
• An order directing the applicant be put into possession
• The rules do not apply where the applicant gained possession after the suit is instituted
• A party aggrieved by the final order to institute a suit- decision final and conclussive
RESISTANCE TO DELIVERY OF POSSESSION
• S. 55, O. 21 rr. 95,96, 97: A third party has made no objection as per 0.21 R. 57, O.21 R. 98 hut resist possession or delivery to the decree holder, purchaser or obstruct him
• Procedure:
• An application by an aggrieved party (JD/purchaser)
• Summoning of the said third party
• Court make orders after hearing both parties
• Orders may be:
• Directing the applicant to be put in possession of the property
• If there is still resistance or obstruction the Court may make orders directing that the person resisting or obstructing be detained as a civil prisoner
EXCEUTION OF FOREIGN JUDGMENT
• S. 3 CPC -foreign judgment" - the judgment of a foreign court
• S. 3-"foreign court“- a court situated beyond the limits of Tanzania which has no authority in Tanzania;
• S. 12- Presumption of foreign judgments
• IMKE HELLA CAMPBELL-SMITH V. DOUGLAS WILLIAM CAMPBEL-SMITH (2000) TLR 355- HCZ
• The Reciprocal enforcement of foreign Judgments Act (Cap 8 RE. 2002)
• The Reciprocal enforcement of foreign Judgments Act (Extension of Part II) Order: itemise countries and Courts
• The Reciprocal Enforcement of Foreign Judgments Rules- registration procedures
• Framework designed to facilitate the direct enforcement of certain foreign judgments in Tanzania
• Preamble: An Act to make provision for the reciprocal enforcement of judgments as between Mainland Tanzania and foreign countries and for other related matters
• In its original terms s 3(1) provided that if the President is satisfied that substantial reciprocity of treatment would be accorded by a foreign country in respect of recognition and enforcement of judgments given in the superior courts of Tanzania, he may by order direct that the said part be extended to that country.
• DH has to make an application to the HCT for registration of the judgment
• Once a foreign judgment is registered it will have it will have same force and effect as if it had been given by the HCT: DOWANS HOLDING SA COSTARICA and DOWANS TANZANIA LIMITED vs. TANZANIA ELECTICITY COMPANY LTD TANZANIA
• Judgment will be registered if it is final
• IMKE HELLA CAMPBELL-SMITH V. DOUGLAS WILLIAM CAMPBEL-SMITH (2000) TLR 355- HCZ
• Although a decision of HCZ on S. 9 of the CPC Decree is relevant as similar to S. 12 of the CPC
Upon production of any document purporting to be a certified copy of a foreign judgment the Court is to presume that such judgment was pronounced by a court of competent jurisdiction unless the contrary appears on the records
• WILLOW INVESTMENT v MBOMBA NTUMBA AND ANOTHER 1996 TLR 377 (HC): A judgment creditor who sought to enforce a foreign judgment at common law could not do so by direct execution of the judgment: enforcement had to be sought by bringing an action on the debt. The proceedings instituted in the present matter were bad as they did not comply with this requirement.
TOPIC 6. SUPPLEMENTAL PROCEEDINGS:
(a) Temporary Injunction
-Law applicable
O. XXXVII Cap 33 R.E. 2002
Trasgem Trust v. Tanzania Zoisite Corp Ltd (1968) H.C.D. no. 501
Attilio v. Mbowe [1969] HCD no. 289
Giella v. Cassman Brown [1973] EA 358(EA)
American Cyanamid Co v. Ethicon Ltd [1975] 1 ALL ER 504
Chavda v. The Director of Immigration Services & Others [1995] T.L.R. 125
Registered Trustees of Social Action Trust Fund & another v. Happy Suasages Ltd and Others [2004] T.L.R. 264
General Tyre East Africa Ltd v. HSBC Bank PLC [2006] T.L.R. 60
-Procedure for applying for temporary orders
-Key principles
Notice requirement
Tanzania Knitwear Ltd v. Shamshu Esamail [1989] T.L.R. 48
i. The combination of two application in one is not bad in law since court of law abhor multiplicity of proceedings
ii. The law of limitation Act 1971 does not apply to an application for discharge of temporary injunction
iii. The requirement of giving notice to the other party per Order 37 r.3 of CPC is mandatory
iv. Where the requirement to serve the notice will defeat the object of the injunction the same can be dispensed
v. Where all share holders are offered purchase of the new shares on the prorate basis, the applicant cannot be heard to complain that the resolution was oppressive to him
Whether temporary injunction can be granted against the stranger to the suit
National Bank of Commerce v. Dar es Salaam Education and office Stationary T.L.R 272
i. Where a mortgagee is exercising its power of sale under the mortgage deed the court cannot interfere unless there was corruption or collusion with the purchaser in the sale of the property
ii. Order 37 Rule 1 was inapplicable in the circumstances of the case because there was no court decree in execution of which the house was sold.
iii. Order 37 Rule 1 was inapplicable on the account that it could be sold in execution of the mortgage without resort to the court decree
iv. A temporary injunction cannot be issued strangers to the suit
Dominic Daniel and Agness Dominic Daniel versus Crdb Bank Plc Ltd and Alex Mwita Msama [Commercial Division] Case No. 39 of 2011 Hc Dar
Any supplementary affidavit filed without the leave of the court must be impugned under G.N. no.508 of 1991, an order for temporary injunction has to last for a period of 6 months only, but, such an interim order is subject to renewal or further orders of the court upon sufficient reasons. In Misc. Civil application no.53 of 2003 between Peter Lucas versus Pilli Hussein and Sud Said Masoud (H.C) Shangwa, J.), (unreported), where it was held that an application for temporary injunction pending the hearing and determination of the main suit is not legally maintainable. Also Civil Revision no.5 of 1996, between A.I.CC versus Charles Wambura (H.C) (unreported). if the temporary injunction is not dissolved during pendency of the suit or renewed that is the end of the matter.
Being aware that Judges of the same court should not give conflicting decisions over similar issues, unless it is absolutely necessary.
(See J.S.Mutungi versus University of Dar es salaam (2001) T.LR.261 (C.A) and Ali Linus and 11 others versus Tanzania Habours Authority and Labour Conciliation Board of Temeke (1998) T.L.R.5 (C.A).
Nyangarika J in Dominic Daniel and Agness Dominic Daniel Versus Crdb Bank Plc Ltd and Alex Mwita Msama reluctantly hold a different view, that,
“It is not correct to say that the period of six months set forth in the Government Notice Number 508 of 1991, must be necessarily stated in the application for interlocutory injunction. I say so because granting a temporary injunction order is purely on the discretion of the court, and shall always be exercised judiciously on the facts and circumstances of each particular case”.
The Nyangarika J holds further that
“Whether the specific period as provided for under G.N.NO.508 of 1991 is stated in the application or not, or whether the period stated is "pending final determination of the main suit" is immaterial.
Second respondent as bona fide purchaser at a public auction is protected by the law. Making further reference to section 135(2) (c), (3) and (4) of the Land Act, cap. 113 R.E. as amended by Act no.2 of 2004, he surmised that if at all the applicant has been prejudiced, he can be remedied through damages, and further that the legal protection to a bona fide purchase is offered by Act no.17 of 2008 vide the Mortgage finance Special Provision Act, under part II which amends the section 16 of the Land Act, cap.113 which introduces new sub section (5). He went on to submit that the title has already passed to the second respondent who has already taken possession of the same and therefore the application has been overtaken by the events. There is no prima facie case as the second respondent is a bona fide purchaser protected by the law and that the applicant had notice before sale. There cannot be irreparable loss because the property can be valued in money terms. Additionally, he contended that the applicants knew the consequences of default and therefore they cannot have both money and the property
On the test of the balance of convenience, he submitted that it was in favour of the second respondent because he had paid the purchase price and had obtained a title deed but still cannot utilize the property due to standing orders of this Court to preserve the status quo. He said that if injunction order is granted, the property will remain in the hands of the applicants and as such, great injustice to the second respondent will ensue.
Lord Diplock once remarkably observed the following in that regard and I quote him here under;
"The Object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in action if the uncertainty were resolved in his favor at the trial, but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights"(See also American Cyanamid Co. versus Ethicon [1975] 1 All E.R 504)~
And when implementing such object, the conditions or factors upon which the
Court must take into consideration had already been spelt out in the cases of Atilio versus Mbowe (supra) and Giella versus Casma Brown & Co. Ltd ,[1973] EACA
358, _namely that
- There must be triable issues between the parties with a probability that it may be decided in the applicant's favour. However, that requirement of the probability of applicant's success in the main suit cannot be interpreted to mean that the facts at hand should declare the applicant a winner, but rather the applicant should show that though evidence has not been given, the allegations so far made by him, prima facie portray him as having been aggrieved by the respondent entitling him to the reliefs being sought in the main suit.[See Commercial Case No.5 of 1999, Tanzania Tea Packers Ltd versus The Commissioner of Income Tax and Another)
- The circumstances should be such that if the Court does not issue the order, then the applicant would suffer irreparable loss even if subsequently he succeeds in the actions(main case) and
- On the balance of convenience, the applicant stands to suffer more if the injunction is not granted than what Respondent would suffer if granted.
Kalegeya J (as he then was) in the case of Millo Construction Company Limited versus NBC Ltd and Saddoti Dotto Magai, Commercial Case no.105 of 2003 which is yet to be reported,
“It is a trite law that all the three conditions underlined in Atilio case must be fulfilled”.
The other sees the principles as having two distinct criteria (i) "prima facie case" and (ii) "probability of success"., The former is construed to the first school of thought, while the latter refers to the relative strength of the case. But the controversy was settled by the court of appeal in the case of C.P.C International Inc. versus Zainabu Grain Millers Limited, civil appeal no 49 of 1995 (C.A) (unreported) where it was held that
“in dealing with the proceeding for interlocutory injunction, a judge should not decide issues which will be resolved and determined in the main suit, but should only consider whether on the facts as disclosed from the affidavits and pleadings, a prima facie case has been shown”.
N. B. It does not follow however that whenever a prima facie case is made out showing a fair question for trial, an injunction must issue. The question of irreparable injury and balance of convenience must also be considered.
If the loss thereof, if any, can be adequately monetarily compensated since the suit premise is a commercial one. Additionally to this argument, that land is not life and can be quantified to monetary value.
It is now a settled law that while passing an interim order of injunction, the court is required to consider three basic Principles, namely
a) The applicant has a prima facie case to go to trial with probability of success
b) The mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise from granting it
c) That protection is necessary from that species of injury known as “irreparable" before his legal right can be established
In addition to the above mentioned three basic principles, a court, while granting temporary injunction must also take into consideration the conduct of the parties. The mere institution of a suit does not entitle the applicant to relief.
Further, it is an established law that the court should not interfere only because the property is very valuable one. Grant and refusal of temporary injunction has serious consequences depending upon the nature and circumstances of each particulars case. In dealing with such matter, the court must make all endeavors to protect the interest of all parties.
In the case of National Bank of Commerce versus Oar es Salaam Education and Office Stationery [1995] T.L.R 272(C.A), it was held, interalia, as follows:
(i) Where a mortgagee is exercising its powers of sale under a mortgage deed, the court cannot interfere unless there was corruption or collusion with the purchaser in the sale of the property.
(ii) Since the order setting aside the sale of the house was a nullifying act, it could not be obtained in an application for temporary injunction under Order 37 rule 1.
The object of temporary injunction is preventive, the whole purpose is to prevent or restrain so as to preserve the subject matter of the suit in status quo for the time being. The word "status quo" is defined in the case of Garden Cottage Food Limited versus Milk Market Board as follows: "Is the state of affairs existing immediately before the filling of the application"
The object of grant of temporary injunction should be to maintain the existing status before determination of the suit and any order which has the effect of changing or disturbing or altering the status quo is not covered by Order 37 rule 1 ( see Chitley and Rao, volume iii 6th Edition, page 3966).
The learned author, Sarkar, on page 1419 of his book, Sarkars , The Law of Civil Procedure Volume 1, 8th Edition, went on to say;
"If a court is called upon to grant any relief on any interlocutory application which when granted would mean granting substantially the relief claimed in the suit, the court will be very slow and circumspect in the matter of granting such a prayer".
(See India Cable Company versus Sumitra Chakraberty, A, 1985, C 248).
Therefore in absence of fraud and the like, the mortgagee will not be restrained from exercising his statutory powers under a mortgage deed only because the mortgagor object to the manner in which the said mortgage powers under the deed are carried out.
In assessing the balance of convenience, the courts will consider the following factors:
(i) The significant of the detriment,
(ii) Whether damages are an adequate remedy,
(iii) Whether as a result of the injunctive relief sought, the preservation of the status quo is equivalent to the final relief.
7. REMEDIES WHERE A PARTY IS DISSATISFIED BY COURT DECISIONS.
N,B)At the end of the course students are expected to be able to;
Draft memorandum of appeals, revisions, pleadings seeking for review and reference.
a) Appeals
Khalfan Bushiri Kikuyu v. Tanzania Investment Ban, Misc. Civil Application No. 108/2008, HCT at DSM (unreported) Mruke,J. Extension of time within which to appeal
N.B For other condition and principle for appeal refer topic 3 supra
b) Review
USANGU LOGISTICS (T) LTD APPLICANT v. TANZANIA NATIONAL ROADS AGENCY, MINISTRY OF INFRASTRUCTURE, DEVELOPMENT THE HON. ATTORNEY GENERAL
An application for review of order and decree, it falls within the ambit of section 78 of the Civil Procedure Code, which is the substantive provision for entertaining a review application and Order XLII Rule l(l)(a) and (b) which lays down the preconditions for accepting the prayer of review of a judgment. For better appreciation of the case, section 78 and relevant provisions of Order XLII of CPCare extracted below for ready reference:
"78. Subject to any conditions and limitations prescribed under section
77, any person considering himself aggrieved-
(a) by decree or order from which an appeal is aI/owed by this Code but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is aI/owed by this
Code/ may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit "
Order XLII
"1. (1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed, and who, from the
discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review. " (the emphasis is of this Court).
Precisely, a judgment can be reviewed on: (i) discovery of fresh evidence, which after the exercise of due diligence, was not within the knowledge of the applicant and could not be produced by him at the time when the decree was passed or order made or (H) on account of some mistake or error apparent on the face of the record, or (Hi) for any other sufficient reason. In the case of CHHAJJU RAM V5. NEKI AND OTHERS
(AIR 1922 P.C.112), the Honourable Privy Council had the occasion to examine contours of the words "sufficient reason' incorporated under Order XLVII Rule 1 of the Indian Code of Civil Procedure, which is pari materia with our Order XUI Rule 1. After delineating the differences of review powers prescribed under the Code of Civil Procedure, 1877 and 1908 (India), their Lordships in that case have held that the court cannot travel beyond the parameters laid down in Rule 1 under the garb of "any other sufficient reason."
As regards the existence of a Notice of Appeal and review, I am alive to the observation by Hon. E.M.E. Mushi in the case of VENANCE
MWINGIRA V. HARLINDA MWINGIRA, Civil Appeal No. 81 of 1997,
(High Court of Tanzania)(Dar es Salaam),(unreported) where His Lordship
stated that:
"In an application for a revie~ two vital facts should be considered, namely:-
"(a) Firstly, in a case where the party is not appealing/ he may nevertheless apply for a review of the judgment decree or order even if an appeal by some other party is pending. (The emphasis is of this Court);
(b) Second, an application for a review can be based on any of the three conditions or a combination of them. "
c) Revision
d) Reference
e) Supervision
f) Objection proceedings
Thomas Mbando v. LART and Liquidation Mwatex, Civil Appeal No. 30/2001, CAT (unreported)- it is the court which made a decision which has powers to handle objection proceedings; the period of limitation to set aside a sale in execution of a decree of a court exercising civil jurisdiction, is two years.
(a) A.D Mashoto vs A.H Kaunga [1986] TLR 67. HC at Tabora (Chipeta, J). Since the agreement was with a consideration and possession of both the property and the title deed passed
as long as consent has not been refused the objector has an interest in the property which interest a court of law ought not to disregard with abandon. Objection succeeds.
(b) Commercial Case No. 50/00 – CRDB Bank Ltd vs Mamba Enterprises Ltd and Charles Mulokozi. HC (Commercial Division) at Dar (Nsekela, J). -Order XXI rules 57 (1); 58; 59 and 60 are central to this ruling and are the ones relied upon by the objector. -When the court is dealing with an objection under Order XI Rules 57, 58, 59 and 60 of the CPC, the court should concentrate on the question of possession of the property the subject of the attachment and then decide whether the judgment –debtor is in possession of the property on his own behalf or on account of or in trust for some other person. If the property is in the actual possession of some other person other than the judgment-debtor, then the court has to decide whether the possession is in trust for or on behalf of the judgment –debtor.
The court should not be concerned with the question of title unless necessary for its decision on the question of possession. - It is I hope clear by now that the scope of the investigation under
Order XXI Rules 57, 58, 59 and 60 is confined to the question of possession and not title or fraud for that matter. The investigation should be directed as to who is in possession of the mortgaged property. -Order XXI Rule 60 provides as to when the claim to property attached should be disallowed and this happens when the court is satisfied that the property at the time of the attachment was in the possession of the judgment-debtor as his own property and not on account of any other person or was in the possession of some other person who was holding the property in trust for the judgment-debtor or that the property was in physical possession of a tenant or other person who was paying rent to the judgment-debtor.
It is evident that what has to be investigated and decided is who, as between the judgment-debtor or the objector, was in possession on the date of the attachment of the property. -Since the property was in possession of the objector, I proceed to find out whether that possession of the objector was on his own account for himself or as trustee or on account of the judgment-debtor. -To conclude, for reasons stated above, as the mortgaged property was in the possession of the objector in trust for the judgment-debtor, that is, the third respondent, Charles Mulokozi. I do hereby disallow with costs the objection by Calvin Mafuru.
(c) Commercial Case No. 67/00 – Joyce Mpinda vs CRDB Bank Ltd and others. HC (Commercial Division) at Dar (Dr. Bwana, J). -Objection to attachment by a wife-matrimonial property- Caveat must be registered -S. 48(1) of the CPC, 1966 not relevant in the situation. -Section 59(1) of the Law of Marriage Act, 1971 interpreted.
(d) Civil Revision No. 123/00 – Donald Nkwao vs Elite Sisters Academy and Another. HC at Dar (Kyando, J). -A person who objects to attachment does not have to be a party to the suit in which the order of attachment was made. All he needs to have is some interest in the attached property which he then protects by objecting to attachment (See Order XXVI rr. 57-58 of the CPC,
1966). -Objection has to be heard by the court which made the order for attachment.
(e) Civil Application No. 15/02 – BOT vs D.P. Valambhia. CAT at Dar. It is abundantly clears to me that there is no right of appeal to this Court once an objection to an attachment has been adjudicated upon. The remedy open to the objector is to file a suit to establish the objector’s right to the claim of the property in dispute.
(f) Thomas Mbando v. LART and Liquidation Mwatex, Civil Appeal No. 30/2001, CAT (unreported)-
It is the court which made a decision which has powers to handle objection proceedings; the period
of limitation to set aside a sale in execution of a decree of a court exercising civil jurisdiction, is two years.
8. SPECIAL PROCEEDINGS
N,B)At the end of the course students are expected to be able to;
a) draft application for certiorari and Mandamus
Procedure for seeking certiorari & mandamus
Certiorari
Mandamus
Misc. Civil Cause No. 144/93 – Workers of Tanganyika Textile Industries Ltd vs
Registrar of The Industrial Court of Tanzania and others. HC at Dar (Kalegeya, J). -
Application for leave to file an application for orders of certiorari and mandamus – “I should out rightly point that seeking leave to file an application for prerogative orders requires the applicant to merely raise arguable points. He is not required to prove the alleged errors for, that proof would only be required, during hearing of the main application if leave is granted. Regard being had to the statement and the attached supporting document”.
Misc. Civil Application No. 68/94 – Sylvester Cyprian and 210 others vs DSM University. HC at Dar (Kyando, J). “Certiorari is used to bring up into the High Court a decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed i.e. it is declared completely invalid, so that no one need respect it. As for mandamus it is a command issued from the High Court ordering the performance of a public legal duty. Both certiorari and mandamus are discretionary remedies and courts assume a free discretion to grant them in suitable cases and withhold them in others.”
Alfred Lakaru vs Town Director [1980] TLR 326 HC at Arusha (Maganga) –
The jurisdiction of the High Court to make orders of mandamus or any other prerogative writs is given by S. 2 (2) of the JALO, Cap. 453. The order of mandamus is defined in
Halsbury’s Laws of England (Third Edition Vol. 2) at page 84 as follows: -
“the order of mandamus is an order of most extensive remedial nature, and is in form, a command issuing from the High Court of justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his nature of a public duty. Its purpose is to supply defects of justice…”
Affidavit in support of the application must disclose the conditions precedent for the issue of an order of mandamus, namely:-
i. legal right must exist
ii. duties must be public
iii. right must be in the applicant application
iv. must be made in good faith
v. demand of performance must precede the application
vi. there must exist the possibility of enforcement
vii. there must be no other legal remedy
Republic Ex-parte Peter Shirima vs Kamati ya Ulinzi na Usalama, Wilaya ya Singida, The Area Commissioner and the AG.[1983] TLR 375 HC at Dodoma (Lugakingira, J). –
The practice of seeking leave to apply for prerogative orders has become part of our procedural law by reason of long user. –
The existence of the right to appeal and even the existence of an appeal itself, is not necessarily a bar to the issuance of prerogative orders, the matter is one of judicial discretion to be exercised by the court in the light of the circumstances of each particular case. - Where an appeal has proved ineffective and the requisite ground s exist, the aggrieved party may seek for, and the court would be entitled to grant, relief by way of prerogative orders”
Sanai Murumbe and other vs Muhere Chacha [1990] TLR 54 CAT at Mwanza. –An order of certiorari is one issued by the High Court to quash the proceedings of and decisions of a subordinate court or tribunal or public authority where, among others, there is no right of appeal. - The High Court is entitled to investigate the proceedings of a lower court or tribunal or public authority on any of the following grounds apparent on the record:-
(1) Taking into account matters which ought not to have taken into account
(2) Not taking into account matters which it ought to have taken into account
(3) Lack or excess of jurisdiction
(4) Conclusion arrived at is so unreasonable that no reasonable authority could ever come to it?
(5) Rules of natural justice have been violated
(6) Illegality of procedure or decision.
Jana Yusuph vs Minister for Home Affairs [19990] TLR 80 HC at Dar (Kyando, J). –
If an administrative authority is acting within its jurisdiction or intra vires, and no appeal from it is provided by statute, then it is immune from control by a court of law. But if it exceeds its power, or abuses them so as to exceed them, a court of law can quash its decision and declare it to be legally invalid.
Misc. Civil Cause No. 42/04- Sugar Board of Tanzania vs. Minister for Land and others HC at Dar (Massati, J.)
There is no dispute that the High Court has jurisdiction to issue an order of certiorari to quash the proceedings of and decisions of a subordinate court or tribunal or public authority where, on the face of the record it:-
(a) Has taken into account matters which it ought not to have taken into account.
(b) Had not taken into account matters which it ought to have into account.
(c) Lacks jurisdiction, or has acted in excess of jurisdiction.
(d) Has arrived at a conclusion so unreasonable that no reasonable authority could ever come to it.
(e) Has violated rules of natural justice and if
(f) The decision is illegal a contrary to procedure.
- These requirements were set down by the Court of Appeal in SINAI MURUMBE AND ANOTHER VS MUHERE CHACHA (1990) TLR 54;
“The remedy of certiorari has to bring up to the High Court and quash something which is a determination or a decision”.
(m) Miscellaneous Civil Cause No. 42/04 - Sugar Board of Tanzania vs Minister For Labour HC at Dar (Massati, J)
- First and foremost I must commend all counsel for their industry and able legal arguments in this application.
- From the submissions of the parties, there is, I think, no dispute that the High Court has jurisdiction to issue an order of certiorari to quash the proceedings of and decisions of a subordinate court or tribunal or public authority whee, on the face of the record it:-
(a) has taken into account matters which it ought no to have taken into account.
(b) Had not taken into account matters which it ought to have taken into account.
(c) Lacks jurisdiction, or has acted in excess for jurisdiction.
(d) Has arrived at a conclusion so unreasonable that no reasonable authority could ever come to it.
(e) Has violated rules of natural justice and if
(f) The decision is illegal a contrary to procedure.
There requirements were set down by the Court of Appeal in SINAI MURUMBE AND ANOTHER VS MUHERE CHACHA (1990) TLR 54;
No comments:
Post a Comment