Saturday, November 17, 2012

contract law-mikataba na sheria tanzania


CIVIL CASE NO. 166 OF 2005



This is an exparte judgment. The Plaintiff, basing on evidence of PW1 (Xanfon Bitala) and four documentary Exhibits – Exhibit A, an agreement between the parties; Exhibit B, an e-mail by one Reeves, the Defendant’s official; Exhibit C, a demand note by the Plaintiff to the Defendant and Exhibit D, a remittance advice by the Defendant sent to the Plaintiff showing amount already paid for services as USD 35,340.15, prays for judgment and Decree against the Defendant as follows:
“(a) A declaration that the termination and/or suspension of the contract for vegetation management services by the defendant on the 3rd day of June, 2005 was premature and unlawful.
  1. An order of specific performance of the contract.
  2. Payment of the sum of USD 14,589.60 being an outstanding payments for the service rendered by the Plaintiff.
  3. An interest of 35% at (c).
  4. Decretal sum of 12% at (c) from the date of decree till full payment.
  5. Refund of the sum of USD 6589.61 being VAT, Excise duty on fuel and Road tax on fuel and back charges unlawfully deducted.
  6. Payment of USD 300,000.00 being general damages for breach of the contract.
  7. Costs of this suit be borne by the defendant.
  8. Any other relief(s) this Honourable court may deem fit and or equitable to grant.�?

Mr. Masaka, Advocate, represented Plaintiff.
The evidence given by the Plaintiff shows that parties had entered a “Contract for Vegetation Management Services�? for the period of 1/11/2003 to 31/12/2005. Among the terms of the contract (as per Exhibit A) was the amount payable monthly, by the Defendant and which was US 5,002. The terms also provided that the contract would terminate automatically at the end of the contractual term. Further to the above, the Defendant could terminate the contract by giving Plaintiff a three months written notice (clause 9.1). At the sametime under clause 9(2) either party could terminate the contract by a written notice to the other if there was any breach of the provisions of the Agreement or if a receiver was appointed in respect of the other party’s property or has voluntarily gone into Administrative-ship agreement or liquidation.

PW1 deposed that on 3/6/2005, the Purchase Manager, one Reeves called him into his office, and in the presence of the Senior Environmental Officer, one Juma Malunga, ordered him to hand over all the Defendant’s equipment in his custody by 5.00pm and leave the mining area adding a statement “the contract has stopped�? and that he was not given any reason and that his pleas to be given the same in writing proved furtile. He (PW1) deposed further that he had to act hurriedly, handed over the equipment, called upon his workers to stay cool and that the day following he could only collect his property from the offices he was using under supervision of a security guard armed with a pistol. He subsequently reported to the police, and sent out a demand notice for the outstanding amount for services already rendered amounting to USD 56,817.83 out of which only USD 35,340.13 was paid as per acknowledgement, Exhibit D, leaving a balance of USD 14.589.60.

Plaintiff also deposed that the Defendant unlawfully deducted USD 6589.61 from his entitlement and that this sum had already been deducted from earlier payments.

On the evidence available, I am satisfied that indeed the termination of the Plaintiff’s services was against the terms of the contract. The Defendant could have acted under clause 9(1) of the Agreement by giving a three months’ notice or 9(2) by pointing out a breach committed. Its act(s) was not backed up by any.

I am also satisfied that indeed the Plaintiff is entitled to USD 14,589.60 under-paid. In arriving at this, apart from the Plaintiff’s oral testimony, I am guided by what transpired after termination of service. The Defendant did not dispute the sum claimed as per the demand notice dated 8/6/2005 (Exhibit C) but simply, in terms of Exhibit D, a remittance advice dated 21/7/2005, made a representation of what would be paid – USD 35,340.13. If the amount claimed as per Exhibit C was incorrect or false, one would have expected Exhibit D to reflect that element. It is silent.

However, I am not persuaded regarding the claim of USD 6589.61 being VAT deductions, excise duty on fuel and Road tax on fuel. The law is clear that even where a party proves his claim exparte he must so prove on a balance of probability. The Plaintiff fell below that standard as no evidence was led to show that indeed that sum was deducted. It is unsupported.

Regarding general damages assessed at USD 300.000, while it is trite law that unlike special damages, general damages ought not be specified by party in a pleading as it is within the discretion of the Court, that figure is exaggerated.

Plaintiff supported that huge claim by stating that the termination caused them to lose monthly income of USD 5000 as per contract; USD 7000 which they were getting from a sister Company, Tunawaka Company which stopped dealing with them; that they had invested in equipment (though no value was displayed) and that the termination act caused his employees to panic resulting into some of them being taken over by Defendant while he retrenched others after paying them.

I appreciate the weight of the above consequences but they do not come anywhere the sum of USD 300,000 claimed.

On the evidence and reasons discussed above, I hereby enter judgment in favour of the Plaintiff in the sum of USD 14,589.60 being the unpaid balance for the services rendered and USD 5000 as general damages. I also award interest at the rate of 7% on USD 14,589.60 per annum from the date of filing the action till judgment, and, the same rate on the decretal sum till payment in full with costs.
DATED at DAR ES SALAAM this day of 2009.


Double Allocation Cases Tanzania- how to win them


                     AT DAR ES SALAAM

             CIVIL APPEAL NO. 70 OF 2001

PROF. BENARD KIREI                                    APPELLANT


NATALINO MWENDA                                    RESPONDENT



      In this   appeal   Professor Bernard     Kirei, the appellant is

challenging the judgment and decree of the Resident Magistrate's

Court of Oar es Salaam at Kisutu in RM Civil Case No.406 of 1996

dismissing his claim of ownership over Plot No. 303 Jangwani Beach

Oar es Salaam. Natalino Mwenda a minor represented by Oorah

Mwenda is the respondent in this appeal. There are five grounds of

appeal namely:

      (1)  error in law by learned Resident Magistrate

           in holding that the respondent is the legal

           owner of Plot No. 303 Jangwani Beach,
    Dar es Salaam despite the fact that the plot

    was allocated to the appellant in 1988; five

    years before the respondent's allocation.

(2) error in law by the learned Resident

    Magistrate in holding that the respondent

    holds a valid offer over the disputed plot

    when the first offer to the appellant was

    not revoked under the law.

(3) on the evidence on record, the learned

    Resident Magistrate erred in law in

    holding that there was a valid sale in

    1985 between Martha Athanas and the


(4) error in law by the learned Resident

    Magistrate in holding that a minor could

    hold land under an offer of a right of


(5) error in law by the learned Resident

    Magistrate in holding that the appellant

    failed to accept the Offer by (sic) failing

    to pay the fees when receipts were
            produced and tendered in court.

       Having carefully gone through the pleadings and testimonies on

record of the Resident Magistrate Court of O'Sakaam at Kisutu in RM

Civil Case No.406/96 the appeal can be disposed of on the single

issue of ownership over the disputed plot/suit property. It is a case

of double allocation. The testimony on record before the Resident

Magistrate's Court of O'Salaam at Kisutu show that the disputed piece

of land was surveyed and subsequently plot No. 303 Jangwani Beach

was created. The evidence of Ashura Mwambule (DW 3) a land

officer with the Ministry of Land confirms that the appellant was first

allocated the disputed plot in 1988, thus supporting the a testimony

of the appellant in his testimony in chief as well as exhibit (P,I).

However contrary to the evidence on record OW 3 told the court that

the appellant did not accept the offer given to him by failing to pay

the acceptance fees. I say that the a testimony of OW 3 is contrary

to the evidence on record because in terms exhibits P 2 AND P 3 the

appellant did accept the letter of offer over the disputed suit land on

25th May 1988, as per letter LD/129398/2/PJC by AFISA ARDHI WA

MRADI - SITE AND SERVICES PROJECT. So it is evident on the a

testimony on record that the offer of a right of occupancy over the

suit property was accepted by the appellant on 25th May 1988.

       On the other hand there is no dispute that the respondent was

offered the suit land through Letter of Offer No. LD/129273 dated
23rd September 1993 (exhibit D2) and acknowledged receipt of the

offer as per Letter Kumb. Na.129273 of 26/7/95. The question to be

answered is whether the respondent's subsequent offer on the suit

could be held valid in the circumstances. The trial court found the

allocation of the suit premises to the respondent/defendant           "was

proper and in place conferring a good title to the plot."

      Clearly this finding was made in error of the law for the clear

reason that a right of occupancy is created by the approval of the

appellant's application for the grant of the same (Le a right of

occupancy) and the acceptance by the appellant of the granted right.

Appellant's rights over the plot continued to subsist so that the later

grant of a right over the same plot to the respondent is null and void.

In other words nothing was granted at all after the grant to the

appellant as the Land Office could not have granted another right

over a plot it had already granted to another person. No evidence

has been led to suggest and or show that the offer of the right of

occupancy created was revoked prior to the purported grant of the

same right to the respondent on 23rd September 1993. I therefore

declare that the appellant is still the rightful owner of the suit land.

      I note that a question on the capacity of the respondent a

minor to own the land in dispute was also canvassed. However in

view of my holding that the subsequent offer of the right to her is
void   ab initio, determination of the issue remains to be an academic

exercise. I will thus say no more on the point.

      In the final analysis I will allow the appeal and set aside the

judgment and decree of the trial court.     The appellant will have his

costs in this appeal. I so order.


Court:       Judgment delivered in Chambers this 16th day of March

             2005 in the absence of the parties to be notified.

                             (S.E.N. IHEMA)






Jaji Mkuu wa Tanzania, Mhe. Mohamed Chande Othman (wa nne kutoka kushoto) akiwa katika picha ya pamoja na Waziri wa Katika na Sheria, Mhe. Mathias Chikawe, na Wahe. Majaji Wakuu kutoka Uganda na Kenya (Mhe. Benjamin Odok-Uganda na Mhe. Willy Mutunga-Kenya) pamoja na ujumbe wa Tume ya Marekebisho ya Sheria Nchini ikiongozwa na Mwenyekiti wake, Jaji Mstaafu, Mhe. Joseph Sinde Warioba.
S.L.P. 9004

Telephone: +255 22 2116654 / 2111586-90
Fax: +255 22 2116654

CRDB - TRA wawavunja moyo wafanya biashara

Staphord Kwanama
Benki ni moja ya nguzo muhimu katika kuchangia uchumi wa nchi yeyote duniani.

Utafiti uliofanywa mwaka 2011,  umebainisha kwamba benki zinazoongoza katika soko la hisa, ni  NBC kwa asilimia 23.3, NMB asilimia 13.3, CRDB asilimia 12.8, Barclays  asilimia 6.0, na Exim Bank asilimia 4.3. Pia sampuli ilihusisha wateja 50 ambao ni wajasiriamali 10 kutoka kila benki tajwa ambapo ni kwa mujibu wa Tanzania Banking Survery  ya mwaka 2011.

Njia ya upatikanaji wa taarifa ilihusisha maswali ya usaili kwa wateja. Pia utafiti huo ulikuwa na maswali mahususi matatu na  swali la kwanza lilihoji, ‘unaonaje huduma za benki yako? Matokeo yalionyesha kwamba wateja 47 ambao ni sawa na asilimia 94) walisema ubora wa huduma za benki husika ni wa wastani wakimaanisha kwamba huduma siyo nzuri sana na wala siyo dhaifu sana.

Swali la pili lilitaka kujua matatizo yanayowakumba wajasiriamali wakati wa kupata huduma za kibenki. Matokeo yalionyesha kwamba matatizo makuwa katika katika huduma za kibenki ni  foleni, wateja wakiwamo wajasiriamali  kutumia muda mwingi sana kuweka ama kutoa fedha benki.

Kutokana kuwapo kwa huduma duni za kibenki, shughuli za nyingi za mjasiriamali zimekuwa zikisimama,, uwapo wa foleni unahusishwa na kuwapo kwa madirisha machache yanayotumika kutoa huduma, upungufu wa watendaji, na spidi ndogo za kutoa huduma kwa wateja.

Pia tatizo la kukatika ama kupotea kwa mtandao mara kwa mara, limekuwa ni kero kubwa kwa wateja na kusababisha hhuduma za kibenki kutokuwa za uhakika. Kwa mfano, ATM zimekuwa hazifanyi kazi  wakati mwingine na kuleta matatizo kwa wateja.

ATM za mitaani zimekuwa adha kubwa hasa siku za mwisho wa wiki na kukatika mtandao ama kuishiwa fedha kunatokea mara kwa mara.

Udhaifu wa huduma kwa mteja, zinazotolewa na wafanyakazi wa benki ilikuwa ni changamoto nyingine, wateja wa benki ambao pia ni wajasiriamali hawakuridhishwa na huduma kwa mteja.

Tatizo lingine lililobainika baada ya utafiti huo ni mfumo wa kuhamisha fedha kutoka benki moja kwenda nyingine kwa mfumo wa TISS (Tanzania Inter-bank Settlement System) hasa  kwa wajasiriamali wanaolipia ankra zao za kodi Mamlaka ya Mapato (TRA). Huduma hizo zimekuwa zikicheleweshwa kwa wateja na kusababisha wajasiriamali wengine kupewa adhabu ya kulipa faini wakati kosa ni la benki.

Pia urasimu na gharama kubwa ya huduma ikiwamo mikopo iligundulika kuwa ni tatizo lingine ambalo limekuwa likiwakabili  wakati wakihitaji huduma za kibenki.

Urasimu ulionekana kuchangiwa na kutofautiana katika uelewa wa huduma na taratibu za bidhaa miongoni mwa wafanyakazi wa  benki, kwa mfano leo ukimkuta A atakwambia hivi na kesho ukimkuta B atakwambia jambo lingine.
Bei kubwa ya bidhaa na huduma ilionekana kusababishwa na hali ya soko la fedha kwa ujumla pamoja na mbinu za kimasoko kwa benki husika.

Swali la tatu lililenga kujua, benki zifanye nini ili kutoa huduma bora kwa wateja na hasa kwa wajasiriamali. Matokeo yalionyesha kwamba  benki zinatakiwa kuboresha teknolojia za kibenki kama matumizi ya simu na mitandano, na kuboresha mafunzo ya huduma kwa mteja kwa wafanyakazi,  kupanga bei inayoendana na hali ya wajasiriamali na kupunguza kero mbalimbali kwa wateja.

TRA yakusanya 8.7 trilion

MAMLAKA ya Mapato Tanzania (TRA), imekusanya asilimia 23 ya Sh8.7 trilioni zilizopangwa kukusanywa katika mwaka mzima wa fedha 2012/13 ikiwa ni makusanyo ya miezi mitatu.

Mkurugenzi Mkuu TRA, Harry Kitilya alisema jana  Dar es Salaam kuwa mamlaka hiyo inaweza kuvuka malengo ya makusanyo waliyojiwekea.“Malengo yetu yalikuwa kukusanya Sh 8.7 trilioni kwa mwaka 2012/13, lakini kwa miezi mitatu tu tumeshakusanya asilimia 23 ya kiasi hicho,” alisema Kitilya.

Kitilya alisema wameshakusanya asilimia 23 ya mapato hayo kutokana na ukusanyaji huu wanaweza kuvuka lengo la asilimia 25 walilojiwekea.

“Ukusanyaji wa mapato kwa miaka sita iliyopita tulikuwa tunakusanya mapato asilimia 8.5 lakini ilipofika mwaka fedha 2011/2012 mapato yaliongezeka kwa asilimia 17, ambapo katika kipindi cha miezi mitatu wa mwaka wa fedha mwaka huu tumekusanya asilimia 23, ” alisema Kitilya .

TRA yawa mbogo- wakwepa kodi

Pamela Chilongola na Bakari Kiango
SERIKALI imesema haitawavumilia wale wote wanaokwepa kulipa kodi kwani kufanya hivyo ni kulikosesha taifa  mapato ambayo yangesaidia kuleta  maendeleo.Makamu wa Rais, Dk Mohamed Gharib Bilal alipozungumza kwenye kilele cha  ‘Maadhimisho ya Siku ya Mlipakodi’ kilichofanyika jijini Dar es Salaam jana.Dk Bilal alisema kukwepa kodi ni kutotimiza wajibu, hivyo wanastahili kuadhibiwa kwa mujibu wa sheria.

Alisema nia ya Serikali  ni kuleta maisha bora kwa jamii, hivyo yeyote atakayekiuka kulipa kodi hatavumiliwa.

“ Mamlaka ya Mapato Tanzania (TRA), kuweni makini katika suala zima la ukusanyaji wa mapato ili kuwabaini wale ambao wanakwepa kulipa kodi,’’ alisema.
Alisema Serikali haitavumilia kurudishwa nyuma na wachache wasiopenda kulipa kodi na kwamba  mamlaka zinazohusika zihakikishe   suala la ulipaji kodi linasimamiwa  kikamilifu ili kuleta maendeleo ya taifa.

Dk Bilal aliitaka TRA kupambana kwa dhati na suala la rushwa kwani ni adui wa haki, adui wa maendeleo na kwamba  palipo na rushwa haki hutoweka.


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