afra masudi vs kwacha transport company others 1998 tzhc 35 24 september 1998

IN THE HIGH COURT OF TANZANIA (DAE ES SALAAM DISTRICT REGISTRY)

AT PAR ES SALAAM MISCELLANEOUS CIVIL CAPSB NO.64/1996 AFRA MASUDI ..... ....... ............. . ... APPLICANT Versus KWACHA TRANSPORT COMPANY AND ) ......... .... RESPONDENTS 5 OTHERS )

R U L I N G CHIPETA. J. r In this milatter, the petitioner, Afra Masudi, has petitioned this Court for, inter alia.an order that the respondents, ■ M/S Kwacha Trarusport Co. and five others, do furnish audited accounts of the first r ^spondent for the last 10 years. Meanwhile the petitioner filed an application for an order that this Court 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 slection 95 of the Civil Procedure Code cannot fee 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 ..application, I am constrained to reject this application for being 'j4%pt properly before the court. This application is accordingly out with costs. B. D. CHIP3TA

JUDGE Ruling delivered in Chambers this 2^th day of September, 1998. B. D 0 CHIPETA JUDGE ' Mr. Maftah for applicant Mr. Kilindu for Respondents.