Commercial Law Index

A court can dismiss a matter for want of prosecution where the person who initiated the court action does not take active steps to pursue the case in court such as not appearing in court. The court dealt with a case where the lawyer did not appear before court on the date for hearing. The case was thereafter dismissed for want of prosecution. This case was an application to set aside the order to dismiss the original court suit for want of prosecution.

To set aside an order that a court suit be set aside for want of prosecution, the applicant must give sufficient grounds that must balanced against the interests of justice. In this case, the lawyer for the applicant did not appear because he was unwell on the court hearing date. The court held that this constituted a sufficient reason to set aside the notice to dismiss the case. In the interests of justice and the compelling reasons, the application to set aside the notice to dismiss was granted.

This was an application for a revision in respect of execution proceedings and a garnishee order.

The respondent raised preliminary objections: that the court lacked jurisdiction to determine the revision; that the court has not been moved and that the application was bad for not being accompanied with the order sought to be revised.

The court dismissed the final objection since there is no legal requirement for the same.

The court determined that it had jurisdiction, by applying the rule that all revisions of a civil nature in a resident magistrate court shall lie to the high court. The court interpreted this provision to include execution proceedings from resident magistrate courts.

In determining the second objection, the court observed that the applicant had cited non-existent legislation by referring to the Magistrates’ Court Act as the Resident Magistrates Court Act. It applied the rule that when an applicant cites the wrong provision the matter becomes incompetent since the court is not properly moved, to hold that it had not been moved. The court also considered that the applicant wrongly cited s 79 of the Civil Procedure Code. In doing so, it appreciated the difference on revision that may be undertaken per s 79 of the Civil Procedure Code and per ss 43 and 44 of the Magistrates Court Act: s 79 referred to finalized cases while the rest refer to any civil proceedings.

Accordingly, the application was struck out with an order as to costs in favor of the respondent. 

This was a ruling based on preliminary objections against an application brought by the applicants.

The respondents submitted that the applicant’s chamber application was in contravention of Order XXIII r 3 of the Civil Procedure Code, 2002. The court observed that the respondents had cited the provisions wrongly and took reference of the right provision (Order XXIII r 1(3). The court determined the interpretation of this provision and specifically whether the prayers sought in the two applications ‘there is no valid injunction after the expiry of six months’ and ‘the order for temporary injunction granted by this court on 28th June 2012, has expired and be vacated’ were similar.

The court applied the rule that one is barred from instituting a fresh suit after withdrawing a suit without securing leave for instituting the same case. The court also observed that this rule is applicable to suits and applications. The court held that they were similar and in absence of an order to have the formally withdrawn application reinstituted, the present application could not stand.

The second respondent raised another preliminary objection based on s 5 of the Oaths and Statutory Declarations Act, 2002 as read with r 2 of the Oaths and Affirmation Rules, 2002, then withdrew it. 

Accordingly, the court found merit in the preliminary objection raised by the respondents and struck out the application with and order as to costs excluding three quarter of the costs incurred by the applicant in respect of the abandoned preliminary objection.

The matter stems from an alleged breach of an agreement of refund by the respondent against the applicant. The agreement in question arose from a breach of the shipping contract by the applicant resulting in the respondent incurring a penalty from Tanzania Revenue Authority.

The main issue is whether the court could order for the joinder of the shipper and agent as defendants even when the applicant does not intend to sue them. The court began by clarifying that it has unlimited powers to join any party as a defendant if it is necessary to enable the court to effectually and completely adjudicate upon and settle all the relevant questions in suit. However, this power is exercised under the guidance of the dominus litis principle that grants the plaintiff the power to decide whom to sue.

In its reasoning, the court could not find a reason why the joinder was necessary as the dispute in question arose from a communication in which only the applicant and respondent were privy. Furthermore, the court heeded the respondent’s contention that as master of her own case she should not be compelled to sue a person she feels she has no claim. The court thus rejected the application to join the shipper and agent as co-defendant.