afra masudi vs kwacha transport company 5 others 1998 tzhc 2008 24 august 1998
Section 95 of the Civil Procedure Code cannot be used as the basis for the application when there is an express provision of law for the remedy sought; therefore, the application is not properly before the court.
Source-derived case information.
- Citation
- afra masudi vs kwacha transport company 5 others 1998 tzhc 2008 24 august 1998
- Parties
- Applicant: Afra Masudi; Respondent: Kwacha Transport Company and 5 Others
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 24 August 1998
- Procedural Posture
- Miscellaneous Civil Application / Ruling on Preliminary Objection
- Outcome
- Application struck out with costs
- Legal Topics
- Powers of Court, Section 95 Civil Procedure Code, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Afra Masudi
Applicant
Kwacha Transport Company and 5 Others
Respondent
Procedural Posture
Miscellaneous Civil Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether section 95 of the Civil Procedure Code can be invoked to appoint a collector and caretaker when there is an express provision of law for the remedy sought
Ratio Decidendi
Section 95 of the Civil Procedure Code cannot be used as the basis for the application when there is an express provision of law for the remedy sought; therefore, the application is not properly before the court.
Court Disposition
Application struck out with costs
Orders
- Application struck out with costs
Full Case Text
Judgment text and source record
1 paragraphs
IN THE HIGH COURT OF TANZANIA (DAE ES SALAAM DISTRICT REGISTRY) A T PAR ES S A LAAM MISCELLANEOUS CIVIL CAPSB N O.64/1996 AFRA MASUDI .............. ............... . .... APPLICANT Versus KWACHA TRANSPORT COMPANY AND ) .......... ..... RESPONDENTS 5 OTHERS ) R U L I N G CHIPETA. J . : r In this matter, the petitioner, Afra Ma su d i, has petitioned this Court for, inter al i a .an order that the respondents, ■ M/S Kwacha Transport Co. and five others, do furnish audited accounts of the first respondent for the last 10 years. Meanwhile, the petitioner filed an application for an order that this Couril should appoint a fit and proper person other than i the respondents as collector and caretaker of the first respondennt*s house rent and debts. The application cited section 95 of the Civil Procedure Code as the enabling provisions of the law. Mr, Kilindu, learned counsel, for the respondents, raised a preliminary objection to the application to the effect that the application is bad in law in that section 95 of the Civil Procedure Code does not, on its own, confer any powers on anyone to do or not to do certain things. With the consent of the Court, the learned advocates of the parties filed written submissions# I have carefully considered those, submissions and the authorities cited. In my view, there is ample authority for the provisions of s|ection 95 of the Civil Procedure Code cannot fee 2 invoked, on their own, where there is an express provision of law by. which the remedy sought may be granted. (See Mul.ji v. Jadavji, (1963) S.A. 217). ; For these reasons, whatever may be the substance of the ,.sialication, I am constrained to reject this application for being j4%pt properly before the court. This application is accordingly '‘ sfcsuck out with costs. B. D. CHIP3TA JUDGE Ruling delivered in Chambers this 2^th day of September, 1998. B. D„ CHIPSTA JUDGE ' Mr* Maftah for applicant Mr. Kilindu for Respondents.