UNREPORTED_CASE_LAWS-54528387[1].docx

UNREPORTED CASE LAWS
NOTE: THIS PAGE IS UNDER CONSTRUCTION THOUGH YOU CAN ACCESS SOME MATERIALS
TANZANIAN UNREPORTED CIVIL –CASES.
1. ADOPTION
2. ADULTARY
3. AFFIDAVIT
4. AFFILIATION
5. AMENDMENT
6. ARBITRATION
7. CHAMBER APPLICATION
8. CERTIORARY & MANDAMUS
9. CIVIL PRISONER
10. COMPANY
11. COUNSEL AS A WITNESS
12. DAMAGES
13. DEBENTURE
14. DECLARATION
15. DEFAMATION & FALSE IMPRISONMENT and MALICIOUS PRO
16. DIVORCE & DIVISION OF MATRIMONIAL ASSETS
17. DISQUALIFICATION OF A JUDGE/MAGISTRATE
18. DMS’/RMS’ JURISDICTION 19. EX – PARTE JUDGMENT
20. EXTENSION OF TIME/LIMITATION
21. INHERENT POWER OF THE COURT
22. INJUNCTION
23. INTEREST & COSTS
24. GANISHEE ORDER
25. JUDGMENT NOT SIGNED BY ASSESSORS.
26. JURISDICTION/ PRELIMINARY OBJECTION
27. LABOUR
28.LAND DISPUTES
29. LEAVE TO APPEAL TO THE CAT
30. LEAVE TO DEFEND
31. LOCUS STANDI

32. MALICIOUS PROSECUTION (See defamation)
33. MORTGAGE/ LOAN
34. MOTOR ACCIDENTS
35. NATURAL JUSTICE
36. OBJECTION PROCEEDINGS
37.PAYMENTS /RELIEFS – IN FOREX
38. PETITION AGAINST CITY
39. POWER OF ATTORNEY
40. PLACE OF SUING
41. PRESUMPTION OF MARRIAGE
42. PRIVITY OF CONTRACT
43. PROBATE & ADMINSTRATION
44. PROCEDURE
45. REFERENCE
46. REPRESENTATIVE SUIT
47. RES JUDICATA/SUB JUDICE
48. REVIEW
49. REVISION
50. RULING/ORDER
51. SALE OF MATRIMONIAL HOME
52. SECURITY FOR COSTS
53. SPECIFIC PERFORMANCE
54. STAMP DUTY
55. STAY OF EXECUTION
56. SPECIFIED PUBLIC CORPORATION
57.SUMMONSTOAPPEAR
58. TAXATION
59. TRIBUNAL
60. VALUATION REPORT
61. VERIFICATION
62. VICARIOUS LIABILITY
63. WANT OF PROSECUTION
64. WILLS
65. WINDING UP – COMPANIES
66. WITHDRAWAL OF SUIT.

AFFIDAVITS.
(a) Civil Case No. 8/96 – Inspector Sadiki and others vs Gerald Nkya. CAT at Dar.

“The proper way to contradict the contents of the counter- affidavit of the respondent
was not by making statements from the bar but was by filing a reply to the counter –
affidavit”. See also Civil Application No. 95/03.
(b) Misc. Civil Application No. 15/97 – OTTU vs AG and others. HC at Dar.(Katiti, J).
“ The expression, “affidavit” , unfortunately despite its being a lawyers everyday tool, is not defined by any statute, I could lay my hands on. But the lexicon
meaning of the expression “affidavit” is that it is a sworn statement in writing, made especially under oath , or affirmation before an authorized Magistrate or
Officer.”
(c) Civil Appeal No. 38/97 – Faizen Enterprises Ltd vs Africarries Ltd. CAT at Dar. -Ex- parte proof cannot be made by an affidavit. It has to be oral.
(d) Civil Application No. 8/99 – SGS Societe General de Survillace SA vs TRA. HC at Dar. - See five principles of affidavits - Quotes several cases on this
subject
(e) Civil Application No. 39/99 – Dar Education and Office Stationery vs NBC Holding Corporation and others. CAT at Dar. - Objection that the affidavit
contains arguments instead of facts and also contain prayers (Quotes Uganda vs Commissioner of Prisons Ex- parte Matovu [1966] EA 516
“ If that is the case, could it in the name of justice, be said that advancing arguments in an affidavit is so offensive as to cause an application to be struck out
and thereby deny this final Court of justice an opportunity to determine the matter on merits? Forms and procedures are handmaids of justice and should not be
used to defeat justice(per Biron J in General Marketing Co Ltd vs A.A Sharrif[1980]TLR 61 at 65. -I hold the same view with respect to prayers contained in
the affidavit. Prayers have to made in court at the hearing otherwise there is no point of making the application. So making them prematurely in an affidavit
should not be a reason for avoiding determination of the application. -Sworn and affirmed – does not make difference.
(f) Tanzania Breweries Ltd vs Robert Chacha (Number not seen), (No. 10/99?) HC at Dar (Katiti, J). - Jurat attestation undated contrary to section 8 of the
Notaries Public and Commissioners for Oaths, Cap. 12. See also Civil Case No. 208/00. - Drawer never endorsed his name on the document he drew – contrary
to section 44 of the Advocates Ordinance, Cap. 341. - Such document is not an affidavit at all, not even approximately in law.
(g) Land Case No. 7/2004 – Teekay Ltd vs NHC. HC (Land Division) at Dar (Longway,J). -Affidavit – the jurat does not state the person who identified the
deponent to the Commissioner for Oaths and whether the Commissioner for Oaths had personal knowledge of the identifier. I see however that the flow is not
fatal and I agree with the respondent’s counsel that the same is rectifiable. Accordingly I agree that the objection is valid and that the application is struck out
with leave to file it within 14 days.
(g) Civil Application No. 76/99 – The University of Dar vs Mwenge Gas and Luboil Ltd, CAT at Dar. - Followed Salima Vuai Foum vs Registrar of
Cooperative Societies and others (1995) TLR 75.
(h) Civil Application No.40/98 – Mustapha Raphael vs East African Gold Mines Ltd, CAT at Dar. “ An affidavit is not a kind of superior evidence. It is simply
a written statement on oath. It has to be factual and free from extraneous matter such as hearsay, legal arguments, objections, prayers and conclusions. See the
case of Uganda vs Commissioner of Prisons, ex-parte Matovu [1966]EA 514” Quotes Order XIX Rule 3(1) of the CPC, 1966.

(h) Civil Case No. 208/00 – Zanzibar Hotel Ltd vs Costa Bujara. HC at Dar. Jurat must show/state what place and on what date the oath or affidavit is taken –
S. 8 Cap. 12- Notaries Public and Commissioner for Oaths Ordinance. See also Tanzania Breweries Case, No (f) above.
Rubber Stamp cannot salvage this situation Affidavit should not contain prayers - see Order XIX Rule 3(I) of the CPC, 1966.
(j) Civil Application No. 31/00 – Benedict Kimwaga vs Principal Secretary, Ministry of Health. CA at Dar. “ If an affidavit mentions another person, then that
other person has to swear an affidavit. However, I would add that that is so where the information of that other person is material evidence because without the
other affidavit it would be hearsay. Where the information is unnecessary, as is the case here, or where it can be expunged, then there is no need to have the
other affidavit or affidavits.” See also Civil Application No. 13/02.
(k) Civil Application No. 8/01 – DDL E. International ltd vs THA and others. CAT at Dar.
“ The applicant’s affidavit is defective because of the errors in the verification clause. The question is whether such defect was fatal thereby warranting the
dismissal of the application or whether the court has discretion to grant leave sought to amend the affidavit and thus cure the defect. (After quoting Salima
Vuai’, The University of Dar vs Mwenge Luboil Ltd ) ……If the court has such discretion in relation to an affidavit which is in law incompetent for lacking a
verification clause, a fortiori it has discretion in relation to an affidavit which, as in the present case, contains a verification clause but is defective merely
because of errors in the said verification clause.”
(l) Civil application No. 21/01 – Ignazio Messina vs Willow Investments SPRL. CAT at Dar.
-An affidavit which is tainted with untruth is no affidavit at all and cannot be relied upon to support an application. - “ The rules governing the form of
affidavits cannot be deliberately flouted in the hope that the court can always pick the seed from the chaff, but that would be abuse of the court process. The
only assistance the Court can give in such a situation is to strike out the affidavit.”
(m) Civil Application No. 141/01 – D.T.Dobie (T) Ltd vs Phatom Modern Transport (1985) Ltd. CAT at Dar. “ As stated in Matovu’s case, an affidavit should
state facts, and facts in my view, do not include controverted evidence in a suit.” The Court has power to order amendments to an affidavit and it will always do
so if no injustice would be occasioned to the other party. I propose to order so in this case.”
(n) Civil Application No.13/02 – NBC Ltd vs Superdoll Trailer Manufacturing Co. Ltd. CAT at Dar. -Affidavit which mentions another person is hearsay
unless that other person swears as well. See also Civil Application No.31/00. - One Mr. Mkongwa, advocate, asserted that he commenced and prosecuted this
suit on the instructions of Dr. Nkini who in turn had been authorized or instructed by NBC (1997) Ltd to commenced the proceedings……Dr. Nkini however,
did not file an affidavit in reply to confirm the averment by Mr. Mkongwa. Therefore, Mr. Mkongwa’s averment was clearly hearsay, and it could not be relied
on as proof of the assertion that the proceedings and this judgment was given, with the knowledge of the applicant Bank”.
(o) Civil Application No.95/03 – Tanzania Breweries Ltd vs Edson Dhobe and 18 others. CAT at Dar. “ The proper way to contradict the contents of the
counter- affidavit ….was by filing a reply to the counter- affidavit”. See also Civil Application No. 8/96.
(p) Misc.Civil Case No.14/04 – Ultimate security Ltd vs The Minister for Labour. HC
at Dar (Mihayo, J). - Ex- parte Matovu’s case is binding upon our courts - “Courts in this country have not departed from the respect they have on East African

Court of Appeal decisions. These decisions are binding on our courts unless our Court of Appeal of Tanzania has categorically departed from such a o the East
African Court of Appeal and declared it bad law.”
(q)Kubach & Saybook Ltd vs Hasham Kassam & Sons Ltd[1972]HCD 228 HC at Dar. “A court will not act upon an affidavit which does not distinguish
between matters stated on information and belief and matters deposed to from the deponent’s own knowledge or as regards the former which does not set out
the deponent’s means of knowledge of his grounds or belief.”
(r) Standard Goods Corp. Ltd vs Harackchand Nathar& Co.(1950)EACA 99 “ It is well settled that where an affidavit is made on information, it should not be
acted upon by the court unless the sources of information are specified”.
(s) Uganda vs Commissioner of Prisons, Ex-parte Matovu [1966] EA514 at 520 “….The Affidavit sworn to by the counsel is also defective. It is clearly bad in
law. Again as a rule of practice and procedure, an affidavit for use in court, being a substitute for oral evidence, should only contain elements of facts and
circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true. Such an affidavit must not
contain an extraneous matter by way of objection or prayer or legal arguments or conclusion. The Affidavit………... should have been struck out.”
(t) Salima Vuai Foum vs Registrar of Cooperative Societies and Three Others [1995]
TLR 75 CAT. - Where an affidavit is made on information, it should not be acted upon by any court unless the sources of information are specified. - As
nowhere in the affidavit, either as a whole or in any particular paragraph, is stated that the facts deposed or any of them, and if which ones, are true to the
deponents own knowledge, or as advised by his advocate, or are true to his information and belief, the affidavit was defective and incompetent, and was
properly rejected by the Chief Justice.
(u) Civil Application No. 50 /03 – Sinani Umba vs. National Insurance Corporation
and Another CAT at Dar.( Nsekela, JA). It is now settled law that whenever the High court refuses an application for leave to appeal to this Court, the decision
of the High Court refusing leave must be attached to an application under Rule 46 (3) (see: Edward Marealle Vs. Marealle Clan and Akilei Marealle (1992)
TLR 275; Civil Application No. 8 of 2001 DDL Invest international Ltd. V. Tanzania Harbours Authority and Two others (unreported). I do read anything in
Rule 46 (3) which demands a notice of appeal and a letter applying for copies of proceedings, judgment, decree and other records to be attached to an
application for leave to appeal to this Court. What is required is a copy of the decision against which it is desired to appeal and nothing else. In the court
occasion to see. I am therefore satisfied that the application was accompanied by the Ruling of the High Court refusing leave to appeal. This objection,
therefore fails. As regards paragraph 6 of the affidavit in support, it is the contention of Mr. Nsemwa that the source of information on the contents of paragraph
4 has not been sufficiently disclosed. It will be recalled paragraph 6 reads in part as under –
“ and the contents of paragraph 4 deposed on advice from my advocates which said advice I verily believe to be true. There is considerable merit in this
complaint. It is true that the affidavit in question was drawn and filed by Kashumbugu, Sekirasa & Co. Advocates. And in his oral submissions Mr.
Kashumbugu elaborated that the information was from his firm of advocates.
The question is was this sufficient disclosure of the source of the deponents’ information? I do not think so. A blanket reference to “my advocates” is, in my
considered view, insufficient disclosure. The deponent should have specifically mentioned the name of the advocate who was the source of the information /
advice in paragraph 4. It is trite law that an affidavit must depose to facts either within the deponent’s personal knowledge or obtained an information the
source of which are set out therein. There is no paragraph in the who affidavit, which discloses the source of information in paragraph 6 - the verification

clause. Having said that, what are the consequences? Without paragraph 4, the remaining paragraphs cannot stand on their own, should the applicant be allowed
to amend the affidavit? There is no hindrance in principle to such a course of action being taken (See: Civil Application No 8. of 2001 DDL Invest International
Limited and Tanzania Harbours Authority and Two others (unreported). The snag herein however is that Mr. Kashumbugu was insistent that the verification
clause was not defective and consequently did not advance any circumstance to move the Court to exercise its judicial discretion. In the result, I am constrained
to uphold the preliminary objection and strike out the application with costs.
(v) Civil Application No. 56 /04 – Unyangala Enterprises Ltd 75 Others Vs Stanbic Bank (T) Ltd CAT at Dar (Ramadhani, JA). Mr. Lugano JU. Mwandambo,
learned adovate for the respondent, filed a counter affidavit. He had two main attacks: One, Mr Mwandambo pointed out that the affidavit in support of the
application was largely hearsay. The learned advocate elaborated that three people have been named in the affidavit but they have not filed any affidavit and
that this is contrary to Kighoma Ali Malima vs. Abas Yusuf Mwingamo, Civil Application No. 5 of 1987 (unreported) and John Chuwa Vs. Anthony Ciza
[1992] T.L.R.233. The second matter is that the South Law Chambers has other advocates besides Mr. Kasikila and Mr. Mwandambo wondered why those
others could not attend. Mr Kasikila gave some explanation as to the effect that the absence of the advocates in their chambers but that should not detain me
here. As for the affidavits of the three people, Mr. Kasikila admitted that he was not aware of those decisions. It is a matter of great pity that Mr. Kasikila did
not know of the requirement of filing affidavits of all persons whose evidence is material to the matter in dispute. His affidavit contains a lot of hearsay
evidence and, so it cannot be relied upon. But even if I were to accept as Gospel trust what Mr. Kasikila said about the unavailability of other partners in their
Chambers , one wonders why their clerk did not come to give the explanation to the Court instead of relying on the applicant himself. For the above reasons I
find that the application is devoid of any merit and I dismiss it with costs.
(w) Civil Revision No. 90/03 – Omari Ally Omary vs. Idd Mohamed and others. HC
at Dar (Massati J)- From the authorities contained in the decision of the court of appeal in Lalago Cotton Ginnery and Oil mills Company Limited Vs. LART
(Civil Application No. 8 of 2003) Phantom Modern Transport (1985) LTD. V.D.T. Dobie (TANZANIA) LTD. Civil Reference No. 15 2001 and 3 of 2002, and
MANORLAL AGGARWAL Vs. TANGANYIKA LAND AGENCY LTD. & OTHERS Civil Reference No. 11 of 1999 the position of the law can safely be
summarized as follows:
As a general rule a defective affidavit should not be acted upon by a court of law, but in appropriate cases, where the defects are minor, the courts can order an
amendment by way of filing fresh affidavit or by striking out the affidavit. But if the defects are of a substantial or substantive nature, no amendement should
be allowed as they are a nullity, and there can be no amendment to a nothing.
I have no doubt in my mind that those paragraphs contain legal arguments, conclusions and prayers. Mrs. Muruke learned Counsel has submitted that those
paragraphs were curable. It was held in the MATOVU case and approved by the Tanzania Court of Appeal in LALAGO COTTON GINNERY AND OIL
MILLS COMPANY LTD. Case and PHANTOM MODERN TRANSPORT (1985) LTD. Case, both cited by learned counsel that affidavits containing extraous
matters by way of objections or prayers or legal arguments or conclusions were incurably defective. On the premises I find and hold that the counter affidavit
filed by the Respondents are incurably devective and are accordingly struck out. Like what the court of appeal of Tanzania did in the LALAGO case I will give
time to the Respondents to file proper counter affidavits before I proceed to consider the application for revision on merit. However, the Application shall have
his costs on the preliminary objection. The respondents are to file proper counter affidavits within two weeks from the date of this ruling.

(x) Commercial Case No. 297 /2002 - M/S Rubya Saw Mill Timber Vs. M/s Consolidated Holding Corporation – HC at Dar. (Kimaro, J).
- The jurat and contents of the affidavit filed in support of the Chamber Application is being challenged. The challenge has been brought by way of a
preliminary objection by Mr. Mwandamo, Learned Advocate for the respondent in this case. The Chamber Application is asking for orders for setting aside a
dismissal order, made by this court on 9th July, 2003. It has been filed under Order IX rule 9 (1) and (2) as well of section 95 of the Civil Procedure Code,
1966. Mr. Maira is the Learned Advocate who filed the application for the applicant.
- The plaintiff’s suit was dismissed because of lack of prosecution. On the date it was called for trial, no witness turned up. The trial of the case was fixed two
months earlier and Mr. Maira is on record that he would have brought three witnesses. On the date of the trial Mr. Maira was present without presence of any of
the three witnesses. The suit was then dismissed. The affidavit was sworn by Mr. Ladislaus Kulwa Msilanga who says he is the Chief Executive Officer of the
applicant. The preliminary objection raised by Mr. Mwambambo is that the application is incompetent as it is supported by an affidavit which is incurably
defective.
- I said earlier the challenge is focused on the jurat of attestation and the content of the affidavit of Ladislaus.
- What is wrong with the jurat of the attestation? Mr. Mwandambo said it contravenes Section 8 of the Notaries Public and Commissioner for Oaths Ordinance,
Cap. 12. Mr. Mwandambo’s observation is that it does not meet the requirement as presented in the above quoted provision.
Whereas the attestation clause displays 11th June, 2003 as the date when the affidavit was sworn at Mwanza, the facts deposed in the affidavit relate to a court
order issued on 9th July, 2003 Mr. Mwandamo said the above discrepancy is clear evidence that the affidavit does not truly state the date on which it was made,
hence offending the mandatory requirements of the law. The concluding remarks are that the affidavit as it is, is not an affidavit at all in law, and cannot be used
in any manner whatsoever in these proceedings.
- Mr. Maira’s simple reply is that the affidavit was made on 11th July, 2003 but it was inadvertently typed 11th June 2003. Mr Maira’s opinion is that this is a
mistake which is curable.
- The attestation clause whose jurat is being challenged reads as follows:-
“ Solemnly sworn by the said Ladislaus Kulwa Msilanga at Mwanza this 11th day of June, 2003. Before me Signature Commissioner for Oaths.”
- Besides the signature for Commissioner for Oaths, there is a stamp of W.K.Butambala, Advocates before whom the affidavit was sworn.
- It is also important for me to explain what is a jurat. The definition given by The Backs Law Dictionary and reproduced in the case of Wananchi Marine
Products (T) Ltd Vs Owners of Motor Vessels High Court Civil Case No. 123/96 DSM Registry) (Unreported), (the decision of Kalegeya, J) is as follows:
“ Certificate of Officer or person before whom writing was sworn to. In common use term is employed to designate certificate of competent administering
officer that the writing was sworn to by a person who signed it. The clause written at the foot of an affidavit stating when, where, and before whom such
affidavit was sworn”.
Let us look at the contents of section 8 of the Notaries Public and Commissioner for Oaths Ordinance, Cap. 12:
“ Every Notary Public and Commissioner for Oaths before whom any Oath or affidavit is taken or made under this Ordinance shall state truly in the jurat of
attestion at which place and on what date the oath or affidavit is taken or made”

The provisions of Section 8 of Cap 12 have been verified; The attestation clause has also been displayed. The arguments of the Counsel have also been
exposed. Now what is the position of this court? Mr. Mwandambo’s argument is correct. The jurat of attestation in Mr. Ladiuslaus Kulwa Msilanga’s affidavit
is defective. The date given in the attestation clause does not rhyme with the date of the order which is sought to be set aside. I am not impressed by Mr.
Maira’s explanation that the date in the attestation clause was inadvertently typed. There is no evidence at all to support the explanation given by Mr. Maira.
Mr. W.K. Butambala was the only person who could have told this court when the affidavit was sworn before him. There is nothing from him. Under the
circumstances, giving such an explanation after the mistake has been pointed out by someone else does not assit Mr. Maira. The records remain as presented in
court. The provisions of Section 8 of Cap. 12 requires the affidavit to state truly in the jurat of attestation the place and the date when the affidavit was sworn.
The date displayed in the affidavit as the date when the affidavit was sworn, can not be true because in the body of the affidavit there is reference to matters
which took after the date of the swearing of the affidavit . This is a contravention of Section 8 of Cap12. It is a defect which is incurable.
In the case of D.P. Shapriya & Co. Ltd Vs. Bish International - Civil Application No. 53 of 2002 (CAT) (DSM) (unreported). Hon. Justice Ramadhani J.A
said:-
“ The section categorically provides that the place at which an oath is taken has to be shown in the jurat. The requirement is mandatory; Notary Public and
Commissioners for Oaths shall state truly in the jurat of attestation at what place and on what date the oath or affirmation is taken or made”
- The second issue raised by Mr. Mwandambo is on the contents of the affidavit. The contention by Mr Mwandambo is that paragraph 6 of the affidavit
contains prayers and this is contrary to the requirements of Order XIX Rule 3 of the Civil Procedure Code, 1966. The response from Mr. Maira is that what is
contained in the affidavit is only a direction to the court to take into consideration the prayers requested for in the Chamber Application.
“ That I have worked tirelessly in prosecuting my case and that I have not in anyway negligent or indolent. Thus in interest of justice I pray that the court may
be pleased to raise the dismissal order and allow the action to proceed to finalization on merit”.
- With greatest respect to Mr. Maira, I do not agree with his explanation on the contents of paragraph 6 of the affidavit.
Order XIX R3 (1) of the Civil Procedure Code 1966 reads and I quote:
“Affidavit shall be confined to such facts the deponent is able of his own knowledge to prove, except in interlocutory application, on which statements of his
belief may be admitted”.
-I join Mr. Mwandambo’s submission that para 6 of the affidavit includes a prayer which is not a face which the deponent can prove or explain about his belief
on the matter. It is true that inclusion of a prayer in an affidavit has been held to be improper and renders the affidavit defective. Ther are a lot of supporting
authorities on the matter. Among then is the famours Case of Uganda Vs Commissioner of Prisons Ex – parte Matovu [1966] EA 514 which has been followed
by the Court of Appeal in several cases. One of such cases being Phantom Modern Transport (1985) Limited Vs. D.T. Dobie & Company (T) Ltd Civil
Reference No. 15 of 2001 and 3 of 2002 (unreported).
Given the defects noted in the affidavit, the affidavit offends the Law. Consequently, it cannot be acted upon by this court. It is struck out.

- The application before this court is by way of Chamber summons. Order XLII Rule 2 of the Civil Procedure Code 1966 requires any Chamber Summons to be
supported by an affidavit. Since the affidavit was struck out it means that the Chamber Summons is not supported by any affidavit as required by the law. It is
struck out with costs.
(y) Civil Revision No. 7/05 - Loans and Advances Realization Trust vs Patrick K. Mungaya & 46 Others. HC.
. He called on this court to hold that the said signature was a forged one and if it is held so, then it amounts to fraud and therefore, fraud vitiates everything. He
sought authority of this court, Mihayo J. in Tanzania Breweries Ltd. vs Alloyee Muyai Civil Revision No. 9/04 (unreported - Dar es Salaam Registry) where his
lordship said in his ruling that “comparing of signatures is a duty of the court”. He held it as settled law. The learned counsel further called upon this court to
compare the signature appearing in the counter affidavit to those in the documents filed in Employment Cause No. 20/02 by Patrick Mungaya.
- The learned counsel ended his submissions by saying that in view of the defferences in the signatures, which lead to forgery, whose consequence is to vitiate
everything, then all the proceedings in the lower court be declared a nullity so that the decree and the garnishee order for the tune of shs. 208,723,360/= be
declared illegal, nullity and void.
(z) Civil Case No. 18/01 - Hilmary Protas Mpangalla vs Global Securities Finance & Insurance Corporation Ltd.
- A preliminary objection has been raised by Mr. E.D Kisusi learned Advocate for Global Securities Finance and Insurance Corporation Ltd the first
respondent/defendant in Civil Case No. 18 of 2001 to the effect that the affidavit of Hilmary Protas Mpangala is incurably defective. The defect is on the jurat
of attestation which did not state truly at what place the affidavit was made contrary to the mandatory provisions of Section 8 of the Notaries Public and
Commissioners for Oath Ordinance Cap. 12. Mr. Msafiri learned Advocate for the applicant/ plaintiff has conceded to the defect but argues that it is within the
Court’s discretion to allow an amendment and has cited a number of authorities in support.
- In my humble view, adopting the decision of the Court of Appeal of Tanznania in the Case of D.B. Shapriya & Co. Ltd. V. Bish Innternation B.C. Civil
Application No. 53 of 2002 (Ramadhani, J.A.) the requirement to state the place at which an oath is taken is a mandatory one. The omission makes an affidavit
incurably defective. Accordingly I uhold the objection raised and I will struck out the application for not being supported by a proper affidavit. Costs to be costs
in the cause.
(aa) Civil Revision No. 29/97 - NIEMCO LIMITED VS MILO CONSTRUCTION COMPANY LTD HC at Dar (Mackanja, J).
Mr Chandoo, learned counsel for the applicant, contends that the respondent cannot be heard to challenge the affidavit by statements from bar as no counter
affidavit was filed. Well, I think both Mr. Mchora and Mr. Chandoo are in error in respect of what they argue. Mr. Mchora repeatedly refers to the affidavit
evidence as being pleadings. Those not pleadings; an affidavit contains evidence. So its contents must be countered by evidence in a counter affidavit, by cross
– examining the deponent or by the adduction of oral evidence or by taking all the three courses of action simurilaneously. Mr Chandoo, on the other hand, is
not correct in contending that Mr. Mchora is not entitled to attach the counter affidavit from the bar. Learned counsel has a right to examine evidence and to
comment on its veracity. This is all that Mr. Mchora has done. This he can do although in saying so I do not mean that Mr. Mchora’s submissions in this regard
stand in for evidence.

(bb) 0
AFFILIATION
(a) Civil Appeal No. 181/04 - Dafroza Mangosongo vs Aron Mwalatungila HC (Mlay, J.)
- The appellant made an application under section 3 and 5 of the Affiliation Ordinance in the District Court of Temeke, seeking orders declaration that the
respondent is the putative father of her child and for the maintenance of the child. The District Court duly issued summons to the respondent and after hearing
evidence from both parties, the District Court declined to grant the orders prayed for. Being aggrieved by that decision the appellant has appealed to this court
on the following grounds:
- The matter which is the subject of this appeal, is governed by the provisions of the Affiliation Ordinance Cap 278. Section 3 of the Ordinance provide as
follows:-
“ 3 Any unmarried woman who may be with child or who may be delivered of a child may –
(a) before the birth of child, or
(b) at any time intern twelve months from the birth of the child, or
(c) at anytime after the birth of a child upon proof that the man alleged to be the father of the child has within twelve months next after the birth of the child
paid money for its maintenance; or
(d) at any time within twelve month next after the return to Mailand Tanzania of the man alleged to be the father of the child.
- Make application, by complaint on oat to a magistrate, with jurisdiction in the place in which she resides, for a summons to be served on the man alleged by
her to be the father of the child, and if such application be made before the birth of the child the woman shall make a deposition upon oath stating who the
father of the chilld is, and subject tto the provisions of section, 4 such magistrate shall there upon issue summons to the person alleged to be the father of the
child to appear before a magistrate on some day to be named in the summons.”
- In the applicnt’s affidavit in support of the application in the District Court, the appellant and alleged that she developed a relationship with the respondent in
1998 and that the said relationship was blessed with one child born on 23/1/2003. The application was filed on 9/9/2003, some nine months after the said child
was born. On the basis of the affidavit, the application was therefore brought within twelve months from the birth of the child, therefore bringing brining the
application within the privisions of Section 3 (b) of the Affiliation Ordinance.
- After the amn alleged to be the father of the child has been summoned in accordance witth section 4 of the Ordinance, section 5 provides for the measures to
be taken before on order of maintenance can be made against the alleged father of the child. The relavant part of the provisions of section 5 are as follows:-
- (1) After the birth of a child, on the appearance of the person summoned under this Ordinance, on proof that the summons was duly served on that person

…… a magistrate shall hear the evidence of the mother of the child and any other evidence which she may produce, and shall also hear any evidence tendered,
by or on behalf of the person alleged to be the father.
(2) if the evidence of the mother is corroborated by other evidence to the satisfaction of the Magistrate, he may adjudge the person summoned to be the
summoned father of the child.
(3) ………………………………………………………………………………..
……………………………………………………………………………….
(10) ………………………………………………………………………………..
- In terms of section 5 of the Affiliation Ordinance, the magistrate is required to hear evidence from the mother of the child and any other evidence which the
mother of the child may produce and also, to hear evidence from the person alleged to be the father. Before the Magistrate can adjudge the person to be the
putative father of the child, sub – section (2) of section 5 requires that the evidence of the mother be corroborated by other of evidence, to the satisfaction of the
Magistrate.
- According to The Oxford Dictionary of Law “Corroboration” has been defined as evidence that confirms the accurancy of the that evidence “in a material
particular”.
- In the appellant’s case the magistrate who heard the application found her evidence to be weak and the evidence of the two witnesses she called, the
magistrate found that PW1 who was the “husband” of the appellant did not state that the respondent had sexual relationship with the appellant. As for the
second witness who was the Welfare Officer, the magistrate found that the testimony did not prove that the respondent and the appellant had sexual
relationship. Although the trial magistrate did not state so categocally, in effect, the magistrate did not find any corroborative evidence in the evidence of the
two witnesses’ clled by the appellant.
- Revisting the testimony of the appellant in the District Court, she stated that she started a love affair with the respondent in 1998 and at the end of April her
husband found them away from their home and severely beat up the appellant and from that time they separated. The appellant alleged that she then started life
with the respondent and after a short time she became pregnant. She alleged that she told the respondent above the pregnancy but the respondenet expressed
doubt as their rlating had been for as short time.
- In short the appellant gave evidence that after nine months she delivered a baby by operation and her mother came to take her to Kilwa where she stayed for
there years. After she had recovered she then came back to Dar es Salaam to seek maintenance from the respondent but found that the respondent had already
shifted to same other place. She testified that trace the respondent through his aunt but when the respondent showed up she denied that the pregnancy was his. It
was at this juncture that the appellant decided to go the Welfare Officer and subsequently to the District court. The applicant’s evidence in court, differs
materially from her evidence in her affidavit.
- On the appellant’s evidence in the District Court, it appears that she had a love affair with the respondent in 1998 and conceived soon thereafter and after
giving birth, she went to Kilwa where she stayed fro three years before she came back to pursue maintenance from the respondent. It follows from that evidence
that the application the District Court was filed after three years after the child was born. The bing the case, the application was filed will beyond the period
prescribed by Section 3 of the Affiliation Ordinance. In the circumstances of the appellant, she was required to file the application either “ before the birth of
the child” or ‘at anytime within twelve months from the birth of the child” in terms of …….. paragraph (a) and (b) of Section 3 paragraphs (c) and (d) of the

section did not apply as there was no evidence that the respondent had paid any money for the maintenance of the child or gone outside Mailand Tanzania and
returned. The application have been filed three years after the birth of the child contrary to the provisions of section 3 of the Affiliation Ordinance, the
application was incompetent and should have struck out.
- Coming back to the appellant evidence, it was not corroborated by the evidence of her ex – paramour PETER THOBIAS. Peter Thobias testified that the
applicant was her concubine and that when they were living together, they got a doughter Agness Peter. The Witness testified that he lived together with the
respondent from 1994 to 1997 when they separated. He said he did not know of any relationship between the appellant and the respondent. This evidence did
not support the appellants evidence that she separated from her ex – paramour in 1998 after he had found out her love affair with the respondent. The witness
did however support the appellants evidence that at the material time they were tenants in the same house with the respondent.
- At the hearin of this appeal the appellant has argued that the fact that they were tenants in the same house as the respondent should have been taken into
account as circumstantial evidence. The respondent did not deny the fact that he was a tenant in the same house in which the appellant and her paramour were
living. He however testified that he was also long with his wife. It was also not alleged that the appellant and the respondent mere the only tenants in the house.
In the circumstances the mere fact that the Appellant was living in the same house as the respondent with his wife, does not confirm the appellants evidence that
the respondent is the father of the child. In the absence of evidence that the respondent was the only male tenant in the house, it does not even prove that he was
the only person who had the opportunity to make the appellant pregnant.
- There was the evidence of the Welfare Officer BEATRICE NGUNULWA who narrated the complaint made to her by them appellant. She stated that the
respondent first denied to have met the appellant but later admitted to have had sexual relationship with here but denied to have made the appellant gregnant.
The Welfare Officer testified further that they called for the child and satisfied themselves that the child looks like the respondent but as there was no agreement
between the parties the matter was forwarded to court. Can this evidence be considered as corroboration of the appellant’s evidence? As the respondent denied
to have admitted before the Welfare Officer that he had a sexual relationship with the respondent. The Welfare Officer’s evidence also needs to be corroborated
with some other evidence, which is lacking. Evidence which needs to be corroborate cnnot be used to corroborate some other evidence. The appellant has
complained that the District Court should have ordered blood tests to be taken. However section 5 of the Affiliation Ordinance requires the magistrate only to “
hear the evidence of the mother of the child and any other evidence which she may produce” The law requires that the mother of the child should give and
produce the evidence. It is not for the court to look for evidence which will support the mother’s evidence.
- In the circumstances and for the reasons given above, this appeal has not merit. There was no evidence upon which the District Cour t could have adjudged the
respondent tobe the putative father of the child, Since the application was filed some three years after the birth of the child the application was filed contrary to
the law and was therefore incompetent. As the application was incompetent the proceedings in the District Court are a nullity and are so declared and for that
reason, the appeal is dismissed.

4. AMENDMENTS
(a) Dhanji Ramji vs Malde Timber Co. [1970] EA 422 While the amended pleading is conclusive as to the issues for determination, the original pleading may
be looked at if it contains matter relevant to the issues. The amendment does not in my view replace the pleading for all purposes.
(b) Eastern Radio Service vs R.J. Patel [1962] EA 818 “ Logic and common sense requires that an amendment should not automatically be treated as if it, and
nothing else, had ever existed.” (c ) Civil Application No. 5/99 – Damas Ndaweka vs Ally said Mtera. CAT at Arusha. -“A party cannot be permitted to defeat a
preliminary objection notice of which has already been lodged. There are decisions of this Court to that effect, including Mtale vs Karmali [1983] TLR 50
where it was held that a notice of motion seeking extension of time to file a supplementary record of appeal is no answer to an objection regarding the
competence of the appeal.” “The position is that once the notice of appeal is lodged, the time to remedy the deficiency complained of lapses and Rule 92(3)
cannot be called in aid.” (d) Civil Appeal No. 58/97 – Kanjibhai M. Patel vs Dahyabhai F. Mistry. CAT at Mwanza. “The Court has held on a number of
occasions that once an objection is taken to the competence of an appeal, it would be contrary to the law to entertain a prayer the effect of which is to defeat the
objection. If such prayers were entertained, rule 100 which permits preliminary objection would be negated.” (e) Civil Application No. 76/99 – The University
of Dar vs Mwenge and Luboil Ltd. CAT at Dar. -An unverified affidavit is no affidavit in law and is therefore incapable of being amended. -[ After quoting
Salima Vuai’s case] I take it that by using the word “amended” this Court meant that the deponent can, if circumstances justify it, grant leave to the deponent to
file an affidavit having a verification clause. I hold this view because I take to be an undisputed proposition of law that something which is null and void is
incapable of being amended. You cannot amend nothing.” (f) Civil Case No. 252/00 – Rhino Security Guards Services Co Ltd vs NIC (T) Ltd. HC at Dar
(Ihema, J). -“ It is my considered view that the chamber application under reference forms part of the pleadings and would ipso facto come under the purview
of Order VI Rule 17 of the CPC, thus amenable to be amended as argued by the applicant’s counsel. As to the question of the notice of preliminary objection, I
think that in the normal order of procedure a notice of p.o. takes precedent and would be heard at the earliest opportunity during trial……” (g) Civil Application
No. 8/01 – DDL E. International Ltd vs THA and others. CAT at Dar. The Court has power to order amendment of an affidavit without a verification clause. (h)
Civil Appeal No. 43/01 – James Kabalo Mapalala vs British Broadcasting Corporation. CAT at Dodoma. “The legal position in our country is that amendment
to the pleadings is not allowed after delivery of judgment”. The expression “at any stage of the proceedings” should not be extended to cover the time after
delivery of judgment. (i) Civil Appeal No. 61/01 – Edward Masanja Ng’ahwani vs AG and another. CAT at Dar. “ An amendment duly made, with or without
leave, takes effect not from the date when the amendment is made, but from the date of the original document which it amends…..Thus when an amendment is
made to the writ, the amendment dates back to the date of the original issue of the writ and the action continues as though the amendment had been inserted
from the beginning, the writ as amended becomes the origin of the action……..” In the context of the present case the amendment dates back to the date of the
original petition. Since the second respondent had dully replied to the original petition, the if he opts, as he has done, not to reply to the amended petition, his
reply to the original petition becomes equally a reply to the amended petition which takes effect on the same date as the original petition, more so as it is
conceded that there is no specific provision of the law requiring the respondent to file a reply to the amended petition.”
(j) Civil Application No. 141/01 – D.T Dobie (T) Ltd vs Phantom Modern Transport (1985) Ltd. CAT at Dar. The Court has power to order amendments to an
affidavit and it will always do so if no injustice would be occasioned to the other party. I propose to order so in this case. (k) Margovind Swai vs Juthalal
Velji[1969] HCD 278, Said J. -“ The application of the defendants to amend their affidavit should be granted subject to the payment of costs of the other side
up to date. If a party can amend his pleadings by leave of the court so as to be able to correct errors by omission or commission, there is no reason why he
should not be allowed to amend his affidavit by correction of errors or by supplementing what has been omitted in it.” Leave to amend granted. (l) Nimrod
E.Mkono vs State Travel Services Ltd and Masoo Saktay [1992] TLR 24 CAT. “Coming to the amendment of the WSD without leave of the court we agree
that this offended the clear provisions of Order VIII Rule 13 of the CPC but it is also our considered view that that this lapse on the part of the respondents did

not prejudice the appellant/plaintiff, this is especially so when taking into account that the plaintiff had been given leave to amend his plaint. We would like to
mention, if only in passing, that justice should always be done without undue regard to technicalities.” (m) George Shambwe vs AG and Another[1996]TLR
334, CAT. “The principles upon which amendments to pleadings should be made needed to be re-affirmed. Amendments sought before the hearing should be
freely allowed if they could be made without injustice to the other side and there was no injustice if the other side could be compensated by costs. Pg 340 “ We
need also to reaffirm the principles upon which amendments to pleadings should be made. These were stated by the Court of Appeal for Eastern Africa in the
case of Eastern Bakery vs Castelino [1958] EA 461. That Court stated at page 462:- “It will be sufficient for the purpose of the present case, to say that
amendment to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and there is no injustice if
the other side can be compensated by costs”. (n) Agrovert and Construction Ltd vs Salum Said Kleb [1995] TLR 168 (HC), Mwaikasu, J. “In determining this
application, the first reference point is the provision under Order 6 rule 17 of the CPC. It is there provided as follows and I quote :- “The Court may at any stage
of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made
as may be necessary for the purpose of determining the real question in controversy between the parties”. As I take it, the important of the provision under rule
17 of Order 6, CPC above quoted is that though a court has been vested with a discretion to grant an amendment as applied for by either party, such discretion
may only be exercised where the amendment appears to the court to be necessary for the purpose of determining the real question in controversy between the
parties. To the same effect was the decision of their Lordships in the case of Australian Steam Navigation Co. Ltd vs Smith and Sons [1889] 14 AC 316 at 319,
where they had this to say:- “Their Lordships are strong advocates for amendment where it can be done without injustice to the other side, and even where they
have been put to certain expenses and delay, yet if they can be compensated for that in anyway, it seems to their Lordships that an amendment ought to be
allowed for purpose of raising the real question between the parties. That however is in the discretion of the court.”.
5. ARBITRATION. (a) The City Council of Dar vs Taj Mohamed [1968] HCD 247, Georges, J. -“The High Court may order a stay of proceedings to permit
arbitration only if application is made “at any time after appearance and before filing a written statement, or taking any other steps in the proceedings”.
[Quoting Arbitration Ordinance, Cap. 15 S. 6; citing New Zealand Insurance Co. Ltd vs Andrew Spyron [1962] EA 74]The procedure set forth in section 18 of
the Second Schedule of the Civil Procedure Code does not apply to the High Court. [ Citing Civil Procedure Code, S. 64]. The court doubted whether the latter
procedure would permit a stay if it were applicable. (b) Motokov vsAuto Garage Ltd and others[1970] EA 249 Georges, J. [After quoting S. 6 of the Arbitration
Ordinance, Cap. 15] The tem “step in the proceedings” is not easy to define. I would hold that any application to a court for an order in respect of the
proceedings can be described as a step in the proceedings. In Chapell vs North[1891]Q.B.252 the respondent in argument argued that steps must mean steps
which advance the proceedings and suggested that a mere summons for particulars would not be such a step. In that case there had been a summons for
particulars of a counter-claim. WILLS,J. was of the view that:- “ the summons for particulars of the counter- claim was a step taken in those proceedings, and
that consequently, had nothing else supervened the summons would have been sufficient to take away the jurisdiction of the court.” With this view. I agree. ©
Civil case No. 106/98 – Covel Mathews Partnership vs TRC. HC at Dar.( Katiti, J) -“It follows in my view that where there is an arbitration agreement in the
contract the arbitration process is a condition precedent to a right to sue….Under the circumstances, the court may stay proceedings until an arbitrator has first
heard the case.”. -“It seems to be the law therefore that where the plaintiff who is a party to an arbitration clause by-passes such agreement and commences
proceedings in the High Court and where similarly the defendant enters appearance each cannot subsequently apply for stay under Rule 18 as they have already
breached the agreement and contravened the said rule.” -“The legal position seems to be that where parties have subsequently expressed their desire to have the
matter resolved through arbitration other than through court action the court may use its inherent jurisdiction to give a chance to arbitral process first and
therefore may order a stay and such stay of the High court proceedings and such order being an agreement of the parties to submit de novo to arbitration till the
arbitration process has come to an end.” (d) Civil Application No. 70/99 – Shinyanga Region Cooperative Union(1984) Ltd vs Pan African Corporation Ltd.
CAT at Dar. Appeal in a matter where the High Court has remitted the matter to the arbitrator for reconsideration, needs leave of the court.
(e) Construction Engineers and Builders Ltd vs Development Corporation [1983]TLR 13 CAT – Mwakasendo, JA. -On being served with a copy of the plaint,

the respondent immediately made an appearance before the High Court and applied for the stay of the action in terms of section 6 of the Arbitration Ordinance.
The application was granted. On appeal against the Order of stay, the appellant argued that the learned High Court Judge wrongly exercised his discretion to
order a stay because the difference between the parties were not within the scope of the arbitration clause and that the dispute raised question of law only which
were not within the competence of the arbitrator. Held:- Where proceedings are instituted by one of the parties to a contract containing arbitration clause and
the other party, acting pursuant to the arbitration clause, applies for a stay of proceedings, the court has to decide the precise nature of the dispute and whether
the dispute falls within the terms of the arbitration clause. Where it is clear that the parties to a contract have agreed to submit all their disputes or differences
arising “under” the contract to an arbitrator, the dispute must go to arbitration unless there is good reason to justify the court to override the agreement of the
parties. On Question of law. -I therefore do not think that it can be enough to say as a question of law of a serious kind will arise here the court ought not in the
exercise if its discretion to interfere. This is not a case in which questions of law can be kept apart from the facts of the case. If, for instance, it been merely a
question of law arising upon the construction of certain words in a lease or contract of sale or what not, I can quite conceive that the court might say - as the
court done in one or two cases – that there is only one question of law here, and that it is idle to refer that ot arbitration, because the first thing the arbitrator
would undoubtly do would be to refer that to the court for the decision of the court as to the question of law. -Quoting Heyman vs Darwins Ltd [1942] A.C.356
(House of Lords). An arbitration clause is a written submission, agreed to by the parties to the contract and, like other written submissios to arbitration, must be
construed to its language and in the light of the circumstances in which it is made. If the dispute is whether the contract which contains the clause has ever been
entered into at all, that issue can not go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that
he was ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of
such contract is illegal), the arbitration clause cannot operate, for on this view the clause itself also is void. But in situations where the parties are at one in
assessing that they entered into a binding contract, but a difference has arisen between them whether there has been a breach by one side or the other, or
whether circumstances have arisen which have discharged one or both parties from further performance, such difference should be regarded as difference which
have arisen “in respect of” or “with regard to” or “under” the contract, and an arbitration clause which uses those or similar expressions should be construed
accordingly. -If it appears that the dispute is whether there has been a binding contract between the parties, such a dispute cannot be covered by an arbitration
clause in the challenged contract. If there has never been a contract at all, there has never been as part of it an agreement to arbitrate. The greater includes the
latter. Further, a claim to set aside a contract on such grounds as fraud, duress or essential error cannot be a subject matter of a reference under the arbitration
clause in the contract sought to be set aside. Again, an admittedly binding contract containing a general arbitration clause may stipulate that in certain events the
contract shall come to an end. If a question arises whether a contract has for any such reasons come to an end I can see no reason why the arbitrator should not
decide that question. (f) Civil Case No. 198/95 – Vocational Education vs Ghana Building Contractors, Varsan Dewji Ramji and Company HC at Dar (Kyando,
J).
- This is an application for stay of proceedings pending arbitration. The application is by Chamber Summons supported by an affidavit of Morgan Manyange,
the Acting Director General of the applicant, first defendant. The first respondent/plaintiff which opposes the applicant, has filed a counter – affidavit sworn by
Asobenye Kasotobela Malakaruka the Managing Director of the first defendant both parties are represented by council Mr H. Mbuya Learned Advocate
represents the Applicant and Mr Kayange represents the Respondent. Councels have failed written submissions.
- Mr. Mbuya then proceeds to submit that the essence of any arbitration clause of is that the parties have chosen their own tribunal, He refers to Denney
Bellarny 91938) 2 LL E.R. 262 in relation to this. He then says that the Court of Appeal of Tanzania had the opportunity to interpret an arbitration clauses “
identical to that quoted above” he says that was in the case of CEB V. SUDECO C.A) Civil Appeal No. 23 of 1993 (unreported). He reproduces the following
passage from the judgement of the Court of Appeal in that cases:-
“The employer and contractor in this case by their agreement which follows closely the standard R.I.B.A. form contract, have chosen to submit their disputes or
differences as to the construction of the contracts as to any matter or anything of whatever nature arising thereunder or in connection therewith to arbitration.

On the authorities reviewed above, it seems to us that the operation of the arbitration clause in the contract to which this case relates does not depend on the
question whether the dispute that has arisen includes both fact and law or is merely limited to either fact or law. If it is clear from the submission, as it is clear in
this case, that the parties have agreed to submit all their disputes or differences arising under the contract to an arbitration, then the dispute must go to
arbitration unless there is some good reason to justify the Court to override the arrangement of the parties”.
Mr. Mbuya submits that the principle in the two cases above is that the parties should be bound by their own agreement and not to try to get out of it. He
submits that the affidavit of Manyanga read together with the plaint disclose materials sufficient for the court to stay the proceedings pending reference to
arbitration. He says even the counter asffidavit acknowledges that the architect has withheld a certificate “which the plaintiff claims to be entitled “. He submits
that withholding of a certificate is a matter which is expressly reserved for reference to arbitration under clause 36 of the contract between the partiesd. He
concludes by stating therefore that the suit is premature and should be stayed as provided for under section 6 of the Arbitration Ordinance.
I agree, of course, that where there is an arbitration clause in a contract the parties have chosen their own tribunal. If it is clear from the submissions therefore
that the parties have agreed all their disputes or differences arising under their contract to an arbitration, then the dispute must go to arbitration, unless as the
Court of Appeal said in the CEB V. SUDECO cse (supra) there is some good reason to justify the court to override the agreement. However, existence of an
arbitration clause in a contract does not in itself lead to an automatic stay of proceedings pending arbitration. Nor do I think the existence of a conflict, leading
up to commencement of legal proceedings, between parties to a contract containing an arbitration clause automatically raise the implecation that there is a
dispute or difference between them which must be referred to arbitration. This, I think is not the law, and in regard to this we have Section 6 of the Arbitration
Ordinance itself which provides that the court can only order stay of the proceedings if it is satisfied, inter-alia, thet ther is no sufficient reason, why the matter
should not be preferred in accordance with a submission. There are also two cases discussed in CEB VSUDECO (supra) by the Court of Appeal. These are the
cases of Barnes v. Young (1898) ICh 414 and Green V. Howell (1910) I Ch 495. Though the contracts to which these cases rlated contained arbitration clauses
and conflicts arose between the parties in rlation to the contracts the courts, after examining and determining the nature of the disputes involved, decided
against staying proceedings. Then in the CEB vs SUDECO case the Cours of Appeal of Tanzania stated guidelines on what things are to be decided before
decided to stay proceedings pending arbitration. The court said:-
“Where proceedings are instituted by one of the parties to a contract containing on arbitration clause ……… and the other party acting pursuant to the
arbitration clause applies to the High Court for satay of proceedings, the first thing to be decided is the precise nature of the dispute which has arisen and the
next question is whether the dispute is one which falls within the terms of the arbitration clase”
(My underscoring)
I am bound by these guidelines and I propose to follow them in this case. Is there a dispute in the present case sufficiently brought out to warrant this court to
stay the proceedings commenced by the first respondent/ plaintiff? In the GEC Vs. SUDECO cases the court of Appeal was able to determine the point upon an
examination of the plaint. In the instant case Mr. Mbuya, as already seen, submits that the affidavit of Manyanga read together with the plaint of disclose
materials sufficient for the court to stay the proceedings pending reference to arbitration. Again as seen, Mr. Kayange contends that there is no dispute or
difference worth reference to arbitration in the case.
I have examined the plaint carefully but I am unable to discrern in it a dispute worth reference to arbitration. Mainly, as Mr. Kayange states, the suit is for
payment of money for work done. There is no issue of no works having been not done “regularly and diligently” as was the situation in the GEC Vs. SUDECO
cases, for example. I set no issue of this king in the plaint.

6. CHAMBER APPLICATION (a) Abubakar Mohamed Mlenda vs Jumanne Mfaume[1989] TLR145. HC at Dar. Omission to cite a proper provision of the
law in the chamber summons is not fatal to the application. (b) Charles Mhiso vs Grace Njau and Another [1997] TLR 107 HC at Dar(Msumi,J). It was true that
a chamber summons without a court seal was of no legal effect but it was not good law that such defect should be ground for dismissal of a suit. © Civil Case
No. 210/89 – Transport Equipment Ltd vs Devran Valambhia. HC at Dar.(Rubama, J). “I associate myself with the finding and hence holds that the combining
of several applications into one is proper.” (d) Misc. Civil Application No. 99/93 – Abdul Masumai vs Awaichi Awinia Massawe. HC at Arusha (Mushi, J).
“One application supported by one affidavit cannot support three distinct applications and by lumping the three matters in one application as is in the present
one makes the whole application incompetent as it is not possible for the court to properly determine them.” (e) Misc. Civil Cause No. 29/96 – Phil M. Kleruu
vs NHC. HC at Dar (Nsekela, J) “Again it is my considered opinion that this error of quoting a wrong subsection is not fatal to the application. What is
important in a matter of this nature is that substantial justice must be done.” (f) Civil Case No. 347/98 – The Executive Officer of the Association of Tenants
IPS Building vs Property Bureau (T) Ltd. HC at Dar Chamber application not signed by the Registrar and also not sealed with the seal of the court is defective,
[Quoted Kaur and others vs City Auction Mart[1967] EA 108 – which stated that such omission amount to non compliance with a fundamental statutory
requirement]. (g) Misc. Civil Application No. 191/01 – Director of Building, Ministry of Works vs Pius Kassuga. HC at Dar(Ihema, J). “ Equally it has been
settled by courts in this jurisdiction that a wrong citation of the law renders an application incompetent.” (h) Civil application No. 64/03 – Citibank Tanzania
Ltd vs TTCL and Four others. CAT at Dar. The applicant was required to cite the relevant provision from which the courts derives the power to hear and
determine the application. If a wrong citation of a law renders an application incompetent, I have not a flicker of doubt on my mind that non- citation of the law
is worse and equally renders an application incompetent. It hardly needs to be overemphasized that in a notice of motion, an application must state the specific
provision of the law which the applicant wants to move the court to exercise its jurisdiction. (i) Misc. Land Case No. 15/04 – Joseph Kisinane Njau Tarimo and
2 others vs Rose E. Tarimo and 4 others. HC(Land Division) – Dar (Kileo, J). Application can be filed under section 78(6) of the Land Registration Ordinance
without there being a main suit. Refer. Chrisma Ltd vs Emma Tsimon (1964) E.A 369. Mwaluko, Advocate – Section 78(6) of the Land Registration Ordinance
under which the application has been brought does not require that there be a main suit in order for an application of this kind to be made but rather that the
court is given powers to give directions as it deems fit for the advancement and interest of justice in order to enable caveats filed to continue being in force.
(Court) – The provision which .provides for the filing of caveats, does not distinguish between a legal and an equitable interest and I do not think that it was the
intention of the legislature in passing this legislation to exclude equitable interests from its application. If it had that intention, then no doubt it would have
expressly so stated. (j) Civil Case No. 159/86 - Rashid Hussein vs Boniface Nyamuhanga & Another HC at Dar ( Ihema, J).
- The record shows that the respondents did not file a counter affidavit as ordered. Mr. Kiwango learned advocate capitalizes on the respondent’s failure to file a
counter affidavit “to be take to mean that they (respondents) have conceded to the application. As such Mr. Kiwango submits that the prayers sought in the
chamber summons/application be granted. The learned advocate calls in support the authority by Chipeta, J. (retired) in the case of Frederic Selenge and
Another Vs Agness Mesele [1983] TLR 99. Mr. Luguwa has neither controverted this proposition nor alluded to it in his written submissions filed on
28/12/2004. I will therefore adopt what Mr. Justice Chipeta (retired) observed in the above case to determine the matter before me to the effect that in the
absence of “ a counter – affidavit to rebut the facts contained in the learned counsel’s affidavit, all things being equal, the lower Court, in this case the court,
ought to act on the basis of these facts deponed to, unless they were on the face of it palpably false” I have read the affidavit of Rashid Hussein the deponent
and I find the facts deponed to contain no palpable falsehood on the face of it. Accordingly I will allow the application and order. (i) extension of time is

granted to file an application to set aside the order of dismissal of the suit as well as the order for grant of leave to proceed exparte. The application to be filed
on or before 24/02/2005.
- 7. CERTIORARI & MANDAMUS -Limitation is Six months Refer- De Smith, Judicial Review of Administrative Actions. (a) 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”. (b) 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.” © Civil Appeal No. 14/95 – Mecaiana
Establishments vs The Commissioner of Income Tax and six others. CAT at Dar. -“ From the clear and unambiguous words of that sub-section,[to wit,
S.17A(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance], the requirement to summon the Attorney General as a party in
proceedings for prerogative orders is when leave for application to institute those proceedings is sought. Thus after leave has been granted to institute those
proceedings, then there is no requirement for summoning the AG as a party.” - “ It may be necessary to point out here that as the Chief Justice has not made
rules to govern theses proceedings, the High Court has been following the procedure obtained in England. A party first makes an application for leave to apply
for prerogative orders. After leave has been granted, the party then proceeds to file an application for the prerogative orders. The requirement of summoning the
AG as a party is for the first stage of seeking leave. That requirement is absent in the second stage of application for prerogative orders.” -“Government
proceedings, on the other hand, have to be instituted by or against the AG. That is the clear provision of S. 9 of the Government Proceedings Act, 1967. Since
application for prerogative orders can be proceeded against any party, not necessary the AG, as we have seen above, then they are not in the nature of the
Government Proceedings which must be against or by the AAG only.” (d) Misc. Civil Cause No. 36/96 – Ernest Gwebe Makobe vs The Director of
Immigration Sservices. HC at Dar (Katiti, J). -“The courts will not act on mere assertion that the question of National Security were involved. Evidence is
required that the decision under challenge were in fact founded on those grounds.” (e) Misc. Civil Cause No .39/97 – Josiahn Barthazar Baizi and 138 others vs
AG and others. HC at Dar ( Makanja,J). - “……Uberrima fides is required and leave will not be granted if there has been a deliberate misrepresentation or
concealment of material facts in the applicant’s affidavit….” (f) Misc Civil Cause No. 7/99 – THA vs Minister for Labour and AG. HC at Dar. “ The applicant
is only required to raise an arguable point on what could be an error or related in the decision being challenged” (g) Civil Application No. 13/99 – Hasham
Madongoand others vs The Minister for Trade and Industries and AG. CAT at Dar. -“ The Court of Appeal cannot be moved to exercise original jurisdiction to
grant leave or extension of time in which to apply for the orders of certiorari and mandamus. To do that, would in effect indirectly be involving the Court in
matters of original jurisdiction, in which it has no jurisdiction.” (h) Alfred Lakaru vs Town Director [1980] TLR 326 HC at Arusha ( Maganga,J) - “…..I have
formed a firm view that this application must be dismissed on the ground that it is incompetent and misconceived. 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 Hasbury’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…” The application was incompetent and misconceived as the
affidavit filed in support of the application did not disclose any of the conditions precedent for the issue of an order of mandamus, namely:- legal right must
exist duties must be public right must be in the applicant application must be made in good faith demand of performance must precede the application there
must exist the possibility of enforcement , and no other legal remedy. As it is mandatory to obtain leave to file the application and no leave was sought or
granted before filing the application it was incompetent. The principal in granting orders of mandamus is that, “ except where the delay is duly accounted for,
mandamus will not be granted unless applied for within a reasonable time after the demand and refusal to do the act.” (i) 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”. (j). Sanai Murumbe and another 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. (k) 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.
(l) Misc. Civil Cause No. 42/04- Sugar Board of Tanzania vs Minister for Land and others HC at Dar (Massati, J.)
- He submitted that the Commissioner for Labour did not valuate any of the tests set out in the MURUMBE case. He again referred to a decision of this Court
in JAMAL YUSUPH VS MINISTER FOR HOME AFFAIRS (1990) TLR. 80 and submitted that the Labour Commissioner acted within his powers and so is
immune from the control of the courts of law. On the premises Mr. Nzowa submitted that the application lacks merit and should be dismissed.
- 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 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; a case cited by
Mr Nzowa learned Counsel for the 4th Respondent and supported by Mr. Mpoki, learned counsel.
- In the present case the remedy of certiorari is sought to quash the decision of the Labour Commissioner dated 19/3/2004 forwarding the dispute between the
Applicant and the 4th Respondent to the Industrial Court for inguiry. It is contended by the 4th Respondent that the Labour Commissioner did not make any
decision which could be reviewed by the High Court. The Applicant contends that was a decision judicially reviewable by the High Court. That is the question
that I will have to determine first in this matter because:
“ The remedy of certiorari has to bring up to the High Court and quash something which is a determination or a decision”
HALSBURY’S LAW OF ENGLAND (eth ed.) Vol. 1 (1) p. 214 paragraph 114. HALSBURY’S gives a number of examples where certiorari has been issued
and some in which it has not. From those examples it is clar that whether a particular action is a determination or a decision for the purposes of certiorari would
depend on its effects on the rights of the parties. OSBORN’S CONCISE LAW DISCTIONARY – 7th ed. By Roger Bird and p. 116 defines the word
“determine” to mean (1) To come to an end (2) To decide an issue or appeal. The concise Oxford Dictionary defines the two term as follows:
“decision …….. a settlement (of questions etc) conclusion, formal judgment, making up one’s mind, resolve, resolution decided character”.
And the term “determination” to mean
(3) Law cessation of estate or interest
(a) Conclusion of debate judicial decision, fixing of date
And the term “determine” means
“ settle decide dispute, person’s fate, come to a conclusion give decision ……(esp. law …. Bring up or come to an end”
- In one example cited in HALSBURY’S LAWS OF ENGLAND at p. 215 (opcit) in THE KING VS POSTMASTER GENERAL exparte CARMICHAEL
(1928) 1 kb 291, a certificate of medical examination for purposes of Workman’s Compensation was quashed by way of certiorari on the ground that it was not
issued by an unauthorized person. LORD HEWART E.J. said this at p. 297.
“…..I am satisfied that when I look at the part which a certificate of this nature must play in the making of any claim for compensation by a post office whether
suffering from telegraphc cramp that the certificate of the certying surgeon is of the nature of a judicial act and is a fit subject for certiorari. Mrs Carmichael
never received or been given the opportunity of receiving a certificate from the only surgeon whoc could lawfully give a cerificat …..the certificate is a judicial
decision to which a proceeding by way of certiorari would apply” (Emphases minie).
- From the above example, it is, I think clear, to me, that for a decision or determination to qualify for review by way of certiorari, it must be of such a character
as to affect the rights of a party or parties, in a decision which is about to be made by a body of persons to whom the decision is issued, and who are charged

with a statutory duty to consider it in decision.
- Coming back to the subject at hand it is true that the 2nd Respondent issued a letter to the Chairman, of the Industrial Court of Tanzania asking the court to
conduct an inquiry as to, among others, whether the dispute was properly dealt with under S. 8 (a) of the Industrial Court Act 1967 as amended. Section 8 of the
Act requires the Court on receipt of the reference from the Labour Commissioner to.
“ inquire into the matter referred to it and make an award or advise the Labour Commissioner accordingly” (emphasis mine).
- Which means the final determination or decision of the dispute between the parties rests with the Industrial Court, and since the Labour Commissioner’s letter
does not express any opinion on any of the subjects referred to the Court it cannot be said the Industrial Court would be influenced by the Commissioner’s
reference unlike in the RE EXPARTE CARMICHAEL’S Case. So in my view the reference by the Labour Commissioner to the Industrial Court dated
19/3/2004 is not a decision the determination which is subject to judicial review by way of certiorari. It is like a preliminary inquiry whose nature is not a
determine or decide but to prepare for a trial that will lead to a decision or determination.
- It follows therefore that this application must fail and fails on this ground alone. I will proceed to dismiss it and other that the Industrial Court proceed with its
inquiry, where the Applicant has also raised the preliminary objections in that Court; as he did in the lower tribunals. The Respondents shall hve their costs in
this application.
(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; a case cited by
Mr Nzowa learned Counsel for the 4th Respondent and supported by Mr Mpoki, learned counsel.
In the present case the remedy of certiorari is sought to quash the decision of the Labour Commissioner dated 19/3/04 forwarding the dispute between the
Applicant and the 4th Respondent to the Industrial Court inquiry. It is contended by the 4th Respondent that the Labour Commissioner did not make any

decision which could be reviewed by the High Court. The Applicant contends that was a decision judicially reviewable by the High Court. That is the question
that I will have to determine first in this matter because.
“ The remedy of certiorari has to bring up to the High Court and quash something which is a determination or a decision”
HALSBURY’S LAWS OF ENGLAND (4th ed.) Vol. 1 (1) p. 214 paragraph 114. HALSBURY’S gives a number of examples where certiorari has been issued
and some in which it has not. From those examples it is clear that whether a particular action is a determination or a decision for the purposes of certiorari
would depend on its effects on the rights of the parties. OSBORN’S CONCISE LAW DISCTIONARY – 7th ed. By Roger Bird and p. 116 defines the word
“determine” to mean (1) To come to an end (2) to decide an issue or appeal. The concise Oxford Distionary defines the two term as follows:
‘decision …. A settlement (of questions etc) conclusion, formal judgment, making up one’s mind, resolve, resolution decided character”.
And the term “determination” to mean
(3) Law cessation of estate or interest
(a) Conclusion of debate judicial decision, fixing of date and the term “ determine” means “ settle decide dispute, person’s fate, come to a conclusion give
decision ….. (esp. law ….. bring up or come to an end”.
In one example cited in HALSBUY’S LAWS OF ENGLAND at p. 215 (opcit) in THE KING VS POSTMASTER GENERAL exparte CARMICHAEL (1928)
1 kb 291, a certificate of medical examination for purposes of Workman’s compensation was quashed by way of certiorari on the ground that it was not issued
by an unauthorized person. LORD HEWART E.J. said this at p. 297.
“ …….. I am satisfied that when I look at the part which a certificate of this nature must play in the making of any claim for compensation by a post office
whether suffering form telegraphic cramp that the certificate of the certifying surgeon is of the nature of a judicial act and is a fit subject for certiorari. Mrs.
Carmichael never received or been given the opportunity of receiving a certificate from the only surgeon who could lawfully give a certificate …. The
certificate is a judicial decision to which a proceeding by way of certiorari would apply” (Emphases mine).
- from the above example, it is, I think clear, to me, that for a decision or determination to qualify for review by way of certiorari, it must be of such a character
as to affect the rights of a party or parties, in a decision which is about to be made by a body of persons to whom the decision is issued, and who are charged
with a statutory duty to consider it in their decision.
- Coming back to the subject at hand it is true that the 2nd Respondent issued a letter to the Chairman, of the Industrial Court of Tanzania asking the court to
conduct an inquiry as to, among others, whether the dispute was properly dealt with under S. 8 (a) of the Industrial Court Act 1967 as amended. Section 8 of the
Act requires the Court on receipt of the reference form the Labour Commissioner to.
“inquire into the matter referred to it and make an award or advise the Labour Commissioner accordingly” (emphasis mine).

Which means the final determination or decision of the dispute between the parties rests with the Industrial Court, and since the Labour Commissioner’s letter
does not express any opinion on any of the subjects referred to the Court it cannot be said that the Industrial Court would be influenced by the Commissioner’s
reference unlike in the RE EXPARTE CARMICHAEL’S Case. So in my view the reference by the Labour Commissioner to the Industrial Court dated
19/3/2004 is not a decision the determination which is subject to judicial review by way of certiorari. It is like a preliminary inquiry whose nature is not to
determine or decide but to prepare for a trial that will lead t a decision or determination.
- It follows therefore that this application must fail and fails on this ground alone. I will proceed to dismiss it and order that the Industrial Court proceed with its
inquiry, where the Application has also raised the preliminary objections in that Court, as he did in the lower tribunals. The Respondents shall have their costs
in this application.
8. CIVIL PRISON.
(a) Civil Case No. 88/87 – Omari Mzee Mtumweni vs said Issa Magenza. HC at Dar (Mackanja, J). “ Civil prison which the applicant seeks is one of the ways
in which a money decree may be executed. It is a most draconian and repressive way of forcing a debtor to meet his civil liabilities. In my view, however, this
mode of execution should be the last resort. It should be employed if all other means have failed. Specially, if the judgment – debtor has dispatched or disposed
of property in order to defeat the execution of the decree. It is not an appropriate remedy in a situation such as this one where no prior attempt has been made to
employ other civilized ways for forcing a judgment debtor to satisfy a decree in terms of Order XXI Rule 9 to 21 of the Civil Procedure. This instant
application would fail.” (b) Civil Case No 210/ 89 – Transport Equipment Ltd vs Devram Valambhia . HC at Dar (Rubama,J). “ For the reasons detailed above,
I find Mr. Frank T. Kejo, Principal Secretary, Ministry of Defence and National Service has failed to show cause why he should not be detained as a civil
prisoner due to his refusal to comply with a lawful order of this court. However, I bear in mind the principle propounded in Re Maria Anne Davies (1888)
21Q.B.D 236, 239qouted with approval in Kasturila Laraya vs Mityana Staple Company Ltd and another (1958) , “Recourse ought not to be had to process of
contempt in aid of a civil remedy where there is any other method of doing justice. ……It seems to me that this jurisdiction of committing for contempt being
practically arbitrary and unlimited should be most jealously and carefully watched, and exercised, if I may say so, with the greatest anxiety on the part of the
judges to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject. I say that a
judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him
on accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary
though it be, it is necessary only in sense in which extreme measures are sometimes necessary to preserve men’s rights, that is, if no other pertinent remedy can
be found…” Bearing the above in mind and to very limited extent the position of Frank T. Kejo notwithstanding the observations of Mustafa, J.A in I.G Lazaro
vs Josephine Magomera, Civil Appeal No. 2/96 (unreported), “I think perhaps only the President of the Republic and judges in the performance of their official
duties are immune from court process; those provisions are specifically contained in the Constitution of the Republic” rather than commit him to civil
imprisonment, I give three weeks to Frank T. Kejo to comply with the lawful order of this court as contained in the Garnishee Order sent to him © Civil case
No 282/98 – Tata Holding (T) Ltd vs Monani Trading as Anchor Enterprises. HC at Dar (Katiti, J). -The mandate for arrest and detention of the judgment
debtor, in execution process by the court, resides in the provisions of section 44(1) of the CPC, while rules 38,39 of ORDER XXI of the Code, provide for the
legal modalities for appearance before the court before, by the judgment debtor if necessary, before the detention order, is passed. - For purposes of execution
process, where the arrest and detention of the judgment debtor becomes necessary, and a decree for payment of money is exceeding One Hundred Shillings, the
court shall not impose more than six months civil prison, nor will the aggregate of such period, where there has been a release and retention exceed six

months…….the execution court can, or may only continue the detention of the judgment debtor, for only a maximum period of six months and no more……”
(d) Commercial Case No. 40/00 – Swedish vs Suchak & Sons Ltd. HC, Commercial Division, at Dar (Nsekel,J). -“Order XXI Rule 10(2) lays down the
particulars which every application for execution of a decree must contain. Clause (j) of the rule requires that the mode in which the assistance of the court is
required should be stated. In other words, the decree-holder must state which of the five modes of execution mentioned in that clause he wishes to invoke for
the purpose of execution.” “There is no application before this court under order XXI rule 10(2)(j) (iii) which is one of the modes in which assistance of the
court can be sought to make an order for the arrest and detention of the judgment debtor in a civil prison. It is my humble opinion that the Chamber Summons
filed by the decree holder on 16/7/2000, is not a substitute for non –compliance with Order XXI rule 10 (2) (j) (iii) . Application is dismissed with costs.
9. COMPANY. (a) Civil Case No. 235/92 – Intertec (EA) Ltd vs B&S International. HC at Dar (Katiti, J). “ Since the plaintiff Company was not incorporated
in the country of origin, and since under S.32 of the Companies Ordinance, Cap.212, a foreign Company can only have a place of business in this country if it is
incorporated in the country of origin, the plaintiff’s company has no place of business is this country in law.”
(b) Civil Revision No. 7/04 - Sophia Mponda , Mohamed Stambuli vs Khamis Slim Kheri HC at Dar (Ihema J,)
- I agree that there are apparent errors in law on the decision of the learned Resident Magistrate to confirm that she acted in the exercise of her jurisdiction with
material irregularity for this court to invoke the provisions of section 79 (1) of the Civil Procedure Code 1966. First it is a settled principle of law that a
company once estamblished assumes its own legal status with powers to sue and be sued; it owns its property separate from those of its directors and or
shareholders. Equally a Director cannot be held liable for the company’s indebtedness, as such a director’s property cannot be held or attached to meet the
company’s liabilities. This position of the law universally accepted finds its original in the famous and justly celebrated case of Solomon Vs Solomon & Co.
[1897] A.C. 22 Secondly the objectors being non parties to the original prodceedings cannot have their property attached at the stage of execution. At any rate
there is nothing in the consent settlement order allowing the decree holder to attach the property in question. The house wa therefore improperly attached.
- In the event I will allow the revision proceedings, quash and set aside the decision of G.K. Mwakipesile learned Resident Magistrate ordering the execution to
proceed. I will order the lifting of the attachment on house No. 449 Block 8 Ujiji Street Mwananyamala on the reason that the said house does not belong to the
judgement debtor and that Mohamed Stambuli is not one of the judgement debtor upon whom the decree holder can proceed for excution. The decree holder is
advised to find other atternative measures to prosecute his rights against the judgment debtor on the basis of the consent settlement order dated 13.02.2003.
10. COUNSEL (a) Trade and Industries. CAT at Dar. “ It is settled principal that negligence or inaction on the part of the does not constitute sufficient reason
for extending of time”. (b) Matrimonial Cause No. 3/01 – Paola Civil Application No. 13/99 – Hashim Madongo vs The Minister of Abdullah vs Mohamed
Norman Abdullah. HC at Dar (Muro,J). “ A statement made a person not called as a witness, which is offered in evidence to proof the truth of the facts
contained in the statement is hearsay and is not admissible. Counsel should refrain from turning themselves into witnesses of facts when making submissions.”
© Civil Application No. 135/02 – Emma Kichikukea vs Anna M. Mbaga and another. CAT at Dar. -“Advocates of less than five years practice normally have
no right of audience in the Court of Appeal.” -“Mr. Lugaziya has no right of audience in this Court for the time being unless he obtains prior permission of the
Chief Justice”.
11. DAMAGES. (a) Zuberi Augustino vs Anicet Mugabe[1992] TLR 137 CAT at Dar or Civil Appeal No. 10/92 CAT. “ It is trite law, and we need not cite
any authority, that special damages must be specifically pleaded and proved.”
(b) Civil Case No. 187/93 – Frank Madege vs the A.G. HC at Dar (Bubeshi, J). - “ The underlying principal in assessment of damages has its origin in the

speech of Lord Blackburn in the case of Livingstone vs Rawyards Coal Co. (1880)5 App’ Cas. 25 where he defined the measure of damages as :- “that sum of
money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for
which he is now getting compensation or reparation.” General Damages are such as the jury may give when the judge cannot point out any measure by which
they are to be assessed except the opinion and judgment of a reasonable man.” General Damages are such as the law will presume be the direct natural or
probable consequence of the action complained of….” In an action for personal injuries, the damages are always divided into two main parts. First, there is
what is referred as Special damages, which has been to be specifically pleaded and proved. This consists of out of pocket expenses and loss of earnings incurred
down to the date of the trial, and is generally capable of substantially exact calculation. Secondly, there is General damages, which the law imputes and is not
specifically pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to continuing or permanent
disability compensation for loss of earning power in the future…..” © Civil Appeal No. 5/97 – Tanzania Saruji Corporation vs African Marble CO. Ltd. CAT at
Dar. “ The position is that general damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of. The
defendant’s wrong doing must, therefore, have been a cause, if not the sole, or particularly significant, cause of the damage.” (d) P.M. Jonathan vs Athuman
Khalfan [1980] TLR 175 at 190 HC at Dodoma, (Lugakingira, J). “The position as it therefore emerges to me is that general damages are compensatory in
character. They are intended to take care of the plaintiffs loss of reputation, as well as to act as a solatium for mental pain and suffering. Exemplary damages,
on the other hand, are a punishment to the defendant for misconduct which general and even aggravated damages cannot reach , and as a reminder that tort does
not pay. They should be recoverable from any defendant whose outrage deserves punishment . It may be anomalous to use the civil court for criminal purposes
but I do not desire to express myself on that issue. I would only add that where the defendant is a servant of the people and commits wrong under the guise of
his power, or where the defendant is motivated by expctations of gain, that would be reason for the court to take an even more serious view and to award such
exemplary damages as the occasion would require.” (e) Civil Appeal No. 45/98 – The Judge i/c High Court Arusha and A.G vs Munuo N.I.N Munuo Ng’uni.
CAT at Arusha. “ We have held in Cooper Motor Corporation Ltd vs Moshi/Arusha Occupation Health Services [1990] TLR 96 at 100 that it suffice in the case
of general damages merely to aver that such damages has been suffered……Only general damages can be asked for by a “mere statement or prayer of a claim”
and this is what has been done in this case. It is clear that this Court excluded asking specific damages by a mere statement or prayer.” Monthly income has to
be signed by the auditor. (f) Civil Case No. 377/98 – Major Bernard Mwenzetu (RTD) vs The Chief of Defence Forces and the AG. HC at Dar (Bubeshi,J). The
plaintiff asked for general damages to be assessed by the court for pain and suffering, mental and emotional anguish and disability –Tshs 40million. Special
damages have to be specifically pleaded and proved. As to general damages this is the domain of the court. (g) Civil Case No. 205/99 – Nyakato Soap
Industries Ltd vs NBC Holding Corporation. HC at Dar ( bubeshi, J). -“As a rule, general damages are by nature within the discretion of the court.” (h)
(Employment)Civil Case No.481/99 – Hilal Hamad Rashid and 4 others vs The Permanent Secretary and AG. HC at Dar (Kyando, J). “ …In Valentine Eyakuze
vs The Editor of Sunday News and Two others [1974] TLR 49 in which the plaintiff, kin an action for libel, demanded shs. 200,000/= as general damages,
Mfalila, J (as he then was) remarked:- “…..The plaintiff should close his statement of claim ( in the plaint) simply with the words “And the plaintiff claims
damages against the defendants a and each of them”. The plaintiff is not bound to specify the amount which he claims as damages, nor should he do so, for if he
claims a small sum he is exposed to the trial to the suggestion that he does not value his character highly, while if he claims a large sum, there is room for the
taunt that he is after money’. Non statement of the amounts of general damages is a proper approach not only in libel or slander actions but in all cases in which
general damages are claimed. It should in such cases, be left to the court to determine the quantum of damages to be recovered. Interest on general damages is
only due after the delivery of judgment because then the amount is known. (i) Commercial Case No. 57/00- Philemon Joseph Chacha vs South African
Airways(Proprietary) Ltd. HC-Commercial Division (Kalegeya, J). “A complaint on the failure to give the quantum of damages claimed is not justified. Why?
Apart from the clear answer provided by Prof. Fimbo that general damages are always at large unless claimed are special damages, it is sufficiently explained
that these are damages that allegedly are likely to be incurred.” (j) The Cooper Motor Corporation Ltd vs Moshi/Arusha Occupation Health Services [1990]
TLR 96. CAT at Arusha. General damages need not be specifically pleaded, they may be asked for by a mere statement or prayer. Whether the assessment of

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