Urafiki Trading Agencies Limited and Another versus Abbasali Aunali Kassam; Commercial Case No 59 of 2010 High Court of Tanzania (Commercial Division ) at Dar es Salaam (Unreported)
- Damages
- Special damages –must be pleaded and proved
- Company Law
- Directors- a contract by the company signed by a single director - articles of association provides that quorum for directors for transacting business is one director - whether the contrail is valid
- Evidence
- Fraud –standard of proof of allegations of fraud in civil cases is beyond the ordinary
- Witnesses –failure to call material witnesses-effect
- Land law
- Encumbrance-whether registration of encumbrance per se makes it legally enforceable.
Held:-
(i) When articles of association provide that a single director can transact business or constitute quorum, a contract signed by a single director binds the company, the reason being the other party is not duty bound to inquire into the internal arrangements of the company in light of sections 35,36 and 37 of the Companies Act, Cap 212.
(ii) Allegations of fraud in civil cases must be strictly proved. Although the standard of proof may not be as heavy as beyond reasonable doubt something more than a mere balance of probability is required. (Cited Ratilal Gordhanbhai Patel v. Lalji Makanji (1957) EA 314 at 316).
(iii) When the question whether someone has committed a crime is raised in civil proceedings, that allegation need be established on a higher degree of probability which is required in ordinary civil cases. (Cited Omari Yusuph v. Rahma Ahmed Abdulkadr (1987) TLR 169.)
(iv) It is now settled law in this jurisdiction that, where a party fails to call a material witness on his side, the court is entitled to take an adverse inference that if the witnesses were called to testify, they would have testified against the party’s interest.
(v) Registration of an encumbrance over a title to property with the Registrar of Titles does not in itself make the said encumbrance or mortgage legally enforceable as against the third party but rather, an encumbrance serves as a notice to the public against dealing with the same title in any manner whatsoever. It is a mere registration and notification of one’s interest over and in the said property.
(vi) It is now trite law that special damages, being exceptional in their character, must be pleaded specifically and strictly proved. That is, once a claim for a specific item is made, that claim must be strictly proved else there would be no difference between a specific claim and a general one. (Cited Masolele General Agencies v. African Inland Church Tanzania (1994) TLR 192).