Chavda Gopalji v Chavda Pravi Main Application final

1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

COMMERCIAL DIVISION

AT DAR ES SALAAM COMMERCIAL CAUSE NO. 27 OF 2023 IN THE MATTER OF PETITION UNDER SECTION 233 (1)(2) AND (3) (a-c) OF THE COMPANIES ACT, CAP 212 OF 2002

AND

IN THE MATTER OF PETITION FOR UNFAIR PREJUDICE AND OPPRESSION

OF THE MEMBERS RIGHTS IN THE COMPANY BY GOPALJI VALLABHDAS CHAVDA………………………………… 1ST PETITIONER GOPALJI VALLABHDAS CHAVDA (Administrator of Late Vallabdas Mulji Chavda’s Estate) ………………………………. 2ND PETITIONER

VERSUS PRAVINCHANDRA GHIRDHALAL CHAVDA…………………… 1ST RESPONDENT PREETI PRAVINCHANDRA CHAVDA……...…………………… 2ND RESPONDENT BUILDERS (V.M. CHAVDA) LTD………3RD RESPONDENT/INTERESTED PARTY

RULING May 20th, 2024 & July 26th, 2024 Morris, J The abovenamed Gopalji Vallabhdas Chavda (G.V. Chavda) filed this petition alleging unfair prejudice and oppression of the members’ rights in the 3rd respondent company by the remaining respondents. He respectively doubles as the first and second petitioners in his capacity and as administrator of the estate of Vallabhdas Mulji Chavda (V.M. 2 Chavda), his late father. The petition is supported by the petitioner’s verifying-affidavit. However, the petition is contested by the respondents’ verified counter affidavit. The sequence of events giving rise to this matter is not arcane. In 1961, the 3rd respondent came into being through incorporation. Allegedly, while the 2nd petitioner was one of its founder members, the 1st petitioner obtained his shareholding in the 3rd respondent from his late father (whose estate he now administers) since 1975. It is claimed further that, a number of changes were made in the 3rd respondent’s shareholding structure from time to time. That is, by 1976 the shareholders were G.V. Chavda (17.5%), V.M. Chavda (17.5%), Mohanlal Jayran Chavda (M.J. Chavda – 20%) and the estate of late Kadvi Jiwa (45%). Further, the 1st respondent allegedly joined the 3rd respondent as its Managing Director in 1971; and that he together with the 2nd respondent, unscrupulously made illegal changes to the 3rd respondent’s

shareholding status thereby turning themselves members and shareholders of the company in the place of the petitioners. Other variations, fraudulent acts and unprocedural conducts claimed to be made by the 1st and 2nd respondents in the 3rd respondent with time include, unlawful increase of 3 share capital of the 3rd respondent; falsification of the 3rd respondent’s incorporation date, directorship and membership status; illegitimate appointment of director; unlawful and unprocedural transfer and transmission of shares contrary to the 3rd respondent’s Memorandum and Articles of Association; and total exclusion of the petitioners and other shareholders/members of the 3rd respondent from every undertaking in the company. In view of the above contentions, the petitioners seek this Court for the decree that the 1st and 2nd respondent had never been members/shareholders of the 3rd respondent; the declaration that their conducts in the 3rd respondent are fraudulent, illegal, unfair, unconscionable and unlawful; the 3rd respondent be directed to rectify its records internally and with the Registrar of Companies so as to remove the 1st and 2nd respondent thereby restoring the petitioners in their claimed-status; the Court to authorise civil proceedings to be commenced in the company name against the 1st and 2nd respondents; the permanent injunctive orders restraining the 1st and 2nd

respondents or their agents from committing further illegal conducts in the 3rd respondent; costs of the matter and other reliefs as the Court deems fit to grant. 4 The foregoing averments met vehement contests from the respondents. They contended that the 1st and 2nd petitioners ceased to be shareholders in the 3rd respondent by legally transferring their individual shares to the 1st respondent in 1981 and 1976 respectively. It was asserted further that; such transfer and registration of shares in the 1st and 2nd respondents’ names, duly complied with all necessary procedural and legal requisites. The respondents also contended that, consequent to the foregoing compliance, all records maintained by the 3rd respondent and/or submitted to the Registrar of Companies or other government offices have been bearing the correct statues of the respondents. That is, the respondents completely denied being involved in any criminal conducts in so far as the 3rd respondent’s affairs are concerned. The respondents also maintained that the petitioners were not excluded in the 3rd respondents’ affairs but they were not connected to the company howsoever because their alleged membership or shareholding ceased in 1981 and 1976 respectively. Parties obtained the Court’s leave to file written submissions for and against the petition. The petitioners were represented by advocate Robert 5 Rutaihwa.

However, Messrs. Nuhu Mkumbukwa and Frank Mushi, learned advocates, submitted for the respondents. Supporting the petition, Mr. Rutaihwa began by adopting both the petition and reply to the answer to petition. His immediate submissions were the insistence that the 1st and 2nd respondents had never been members or shareholders of the 3rd respondent. He contended that for the petition of this nature to pass the test of the law, Courts analyse a number of factors. To him, the basic ones are, proof of affairs of the company; being or having been conducted; in unfairly prejudicial manner to the interest of members; and the omission or plan to do anything prejudicial to affairs of the company. He referred to the Bhavesh Chandulal Ladwa & Others v Jitesh Jayantilal Ladwa, Misc. Comm. Cause No. 345 of 2020; Velisa Elizabeth Deflosse Igletion (legal rep. under power of attorney of Gorden McClymont) v Joseph Ignans Noroka & Others, Misc. Comm. Cause No. 20 of 2021; Yasmin Haji v Kenyatt Drive Properties Ltd & Another, Misc. Comm. Case No. 14 of 2022 (all unreported). The petitioners also reiterated the averments in the petition to buttress their argument that the 1st respondent used his mandate as its 6 director to manipulate affairs of the of the 3rd respondent. To them, as both the 1st and 2nd respondents never acquired shares in the 3rd respondent legally, both cannot be members of

the latter as they purport to be. Reference was made to sections 24 and 115 of the Companies Act, Cap 212 of 2002 (the Act) to submit that members of the company are either by subscription to the Memorandum and Articles of Association (MEMARTS) of the Company or agreement to be entered into the company’s register of members. In view of the foregoing categorisation of members; and in line with the argument that the 2nd petitioner’s names are in the MEMARTS (Annexure Chavda 2) and the 1st respondent acquired shares from the former in 1975; the two are members of the company accordingly. The basis for such conclusion is arguably due to the claim that the petitioners never disposed off their respective shares to the 1st and 2nd respondents or to anyone else. On such-foregoing vein, they claimed to be entitled to every nitty- gritty of the 3rd respondent’s affairs. That is, their being passive investors notwithstanding, the petitioners should have been consulted for approvals of any transactions in or affecting the 3rd respondent. To them, the 7 argument by the 1st respondent that he acquired shares from the 1st petitioner before transferring a portion thereof to the 2nd respondent is unjustifiable because the alleged dispositions are tainted with fraud fabrication and prejudice to the petitioners. The counsel for the petitioner also argued that the petitioners cannot file a suit to

recover the shares because they never transferred their shares to the respondents or anyone else anyhow. He also argued that, it was upon the respondent to prove and justify that the alleged transfer of shares was lawful pursuant to sections 54, 55, 74, 83 and 84 of the Act ; 100 and 110 of the Evidence Act, Cap 6 R.E. 2022; and Paulina Samson Ndawavya v Theresia Thomas Madaha, Civ. Appeal No. 45 of 2017 (unreported). Building up the argument that the petition is with merit, the petitioners asserted that in the absence of the lawful acquisition of shares and membership in the 3rd respondent on the part of the 1st and 2nd respondents; any action taken or conduct done by the latter respondents amounted to unfair prejudice. Hereof, they relied on sections 64, 66, 133 and 182 of the Act together with the courts holdings in O’Neill v Phillips 8 (1999) 1 WLR 1092; Yasmin Haji v Kenyatta Drive Properties Ltd (supra) . As for the reliefs, it was submitted that the law, under sections 197 and 233 of the Act, empowers this Court to grant so many reliefs in accordance with circumstances of each case. Further, to the petitioners, the remedies sought in the petition were well founded and justified under the present matter. Consequently, it was their humble prayer that the same should be granted. The contentions from the respondents were thematically presented. Their submissions were divided

in nine (9) subheadings. That is, deceptions in the petition; failure to deposit security for costs; the petition being supported by the verifying affidavit with illegal affirmation; the petition being time barred; lack of locus standi to the petitioners; illegality of 1st respondent’s representation of the 2nd respondent; legality of the 1st and 2nd respondents’ membership in the 3rd respondent; other unfair and prejudicial conducts against the petitioners’ rights; and justification of reliefs under the petition. I will now succinctly decipher the foregoing ennead themes. One, that the petitioners are being deceitful by alleging that they still own the 9 shares in the 3rd respondent while they legally sold/transferred them to the 1st respondent in 1981 and 1976 respectively. Further, it is was asserted that the petitioners hid the truth regarding the ownership-row over part of the shares in the 3rd respondent under Civil Case No. 137 of 2020 now pending in this court (Dar es Salaam registry). Another line of impugnation by the respondents is that whereas the petitioners filed this matter alleging unfair prejudice, the truth is that they were unscrupulously pursuing the suit for recovery of shares in disguise. Moreover, the respondents claimed that the petitioners were basing on the passage of time (over 40 years) and unavailability of record after such duration to manipulate

the circumstances of this matter and/or intentionally mislead the Court. The Court was referred to section 455 of the Act and rule 6 of the Companies (Retention and Disposal of Company Documents) Rules, 2023. Also, to the respondents, it was not right for the petitioners to refer to themselves as passive investors and still claim the right for active involvement in the affairs of the company herein. To the respondents, if the petitioners were to be rightly designated the passive investors status, they would not be unfairly prejudiced. But because they are not members or shareholders in the 3rd respondent (as 10 per official records at the Registrar’s offices), they cannot invoke sections 121 and 233 of the Act. Two, the respondents submitted that the petition is incompetent because the petitioners did not deposit the security for costs as ordered by this Court on June 22nd, 2024. To them, such failure attracts dismissal of the proceedings pursuant to order XXV rule 2(1) of the Civil Procedure Code, Cap 33 R.E. 2019; and Maasai Wanderings & Others v Vionica Ilia & Others, Misc. Civ. Appl. No. 19 of 2021 (unreported). Three, to the respondents, the petition was also incompetent because the affidavits verifying it and the reply to the answer to the petition were affirmed before an unauthorised UK-based Commissioner for Oaths at Highbury. They submitted that the same contravened

the law per section 4 of the Notary and Commissioners for Oaths Act, Cap 12; Millicom (T) v James Alan Russel Bell & Others, Civ. Appl. No. 44 of 2016; Rekha Verma v Armed Healthcare Co Ltd., Misc. Labour Appl. No. 269 of 2023; and Mohamed Abdillahi Nur & Others v Hamad Masauni & Others, Civ. Appeal No. 630 of 2023 (all unreported). 11 Four, it was argued by the respondents that the petition is time barred. The basis of this contention is that disposition of the shares under this matter was done in 1976 and 1981. That is, over forty (40) years. Therefore, basing on the reality that the present petition is a suit, the same should have been filed within six (6) years in line with the provisions of the Law of Limitation Act, Cap 89 R.E. 2019 and holdings in Rupesh Kumar Soni v Vidon Kumarsoni & Others, Misc. Comm. Cause No. 25 of 2022; PO International Ltd v The Trustees of TANAPA, Civ. Appeal No. 265 of 2020; and John Cornel v Grevo (T) Ltd, Civ. Case No. 70 of 1998 (all unreported). Under the subheading number five, the respondents argued that the petitioners did not possess the capacity to petition under section 233 of the Act because they were not members in the 3rd respondent. To buttress the point that the locus standi under the stated provision is with the members of the company and the scope thereof, reference was made to unreported cases of Sabri Muslim Karim v Muslim

Shivji Karim, Comm. Cause No. 54 of 2022; Ellen Nocos Mavroudis v Mihal Kalitzakis & Others, Misc. Comm. Case No. 6 of 2020; Velisas 12 Elizabeth Deflosse Ingleton’s Case (supra); Yasmin Haji v Kenyatta Drive Properties Ltd (supra); and Rupesh Kumarsoni’s Case (supra). Six, according to the respondents, the 1st petitioner maintains no legal capacity to represent the estate of the 2nd respondent because his administration status thereof was granted to him about three (3) decades ago. The respondents reiterated the decision in Beatrice Brighton Kamanga & Another v Ziada William Kamanga, Civ. Revision No. 13 of 2020 to the effect that law does not permit endless administration of estate or a life administrator. That is, unless extended by the court, such powers are never perpetual. Thus, in the absence of the proof from him that the 1st petitioner obtained leave to extend his administration capacity, he cannot continue administering the estate of the 2nd petitioner everlastingly. The respondents’ theme number seven related to the 1st and 2nd respondents’ proof of membership in the 3rd respondent. In this connection, it was argued that the respondents exhibited fully the modality through which they legally acquired and duly registered the shares in the 3rd respondent in their names. To them, as official company records indicate that the duo are shareholders and members of the

3rd 13 respondent, they benefit from the doctrine of acquiescence. Such records include, annual returns; companies register at the Registrar’s office; and search reports. Hence, the petitioners are estopped to challenge the subject respondents’ ownership of the shares herein. Reliance was sought from Sabri Muslim Karim’s Case (supra). Further, it was argued by the respondents that the petitioners’ allegations of fraud are not maintainable. To them, the standard of proving criminal elements in a civil trial were not satisfied by the petitioners. In other words, the alleged fraudulent transactions must be pleaded and proved specifically. That is the position in Twazihirwa Abraham Mgema v James Christian Basil, Civ. Appeal No. 229 of 2018; City Coffee Ltd v The Registered Trustees of Ilolo Coffee Group, Civ. Appeal No. 94 of 2018; Capital Land Builders Pvt Ltd. v Shaheed Memorial Scty, 2023 (all unreported); Omari Yusuph v Rahma Ahmed Abdulkadir [1987] TLR 169; and Ebrahimi v Westbourne Galleries [1973] AC 360. Number eight, on the respondents’ thematic submissions is the assertion that the narration of affairs by the petitioners upon which they rely to pursue this petition is untenable. They maintained that the 14 disposition and transfer of shares from the petitioners to the 1st respondent (and subsequently from the latter to the 2nd respondent) were done systematically and in

total compliance with the law. They also argued that the alleged inventory filed by the 1st petitioner referring to shares of the 2nd petitioner in the 3rd respondent, did not prove conclusively that the said shares were indeed belonging to the estate of the 2nd petitioner. Furthermore, the respondents argued that any correspondence with the Registrar and the petitioner did not invalidate the dispositions which were conducted by the petitioners. Finaly under number nine, the respondents submitted that the petition is devoid of merit on a number of fouls apparent on the record thereof. They reiterated that for this matter to pass the test of the law, the petitioners must first acquire the requisite legal capacity to petition; the matter must be within time or extension thereof must be obtained first; special damages must be pleaded and proved specifically; and the alleged fraudulent conducts by the respondents must be proved to the required standard. Consequently, the respondents prayed for dismissal of the petition with costs. 15 Rejoining, the petitioners submitted by insisting that the 1st and 2nd respondents are not shareholders or members in the 3rd respondent. Further, they asserted that the respondents did not appreciate the real meaning of the register of members as per section 115 of the Act. Moreover, it was also contended that because the respondents did not make

available the register upon being requested by the petitioners, the Court should draw adverse inference against the former [Allan Duller v R., Crim. Appeal No. 367 of 2019 (unreported)]. They also denied manipulating the proceedings on the basis of passage of time anyhow. Instead, they put it a challenge to the respective respondents to prove the legality of their shareholding/membership in the company. Furthermore, the petitioners passionately maintained that the petition is not defective and is thus, tenable. It was their additional contention that the respondents’ arguments regarding time limitation and locus standi were raised and determined as preliminary points of objection. Thus, they cannot be revisited at this stage without transgressing the functus officio doctrine [NBC Ltd & Another v Bruno Vitus Swalo, Civ. Appeal No. 331 of 2019 (unreported)]. In conclusion, 16 the petitioners reiterated their prayer for allowance of the petition in its entirety. After dispassionately considering the filed documents and arguments for and against the petition, I now set the Court to determine one basic issue: whether the 3rd respondent’s affairs are being or have been conducted in a manner which is unfairly prejudicial to the interests of its member. In answering such enquiry, the major provision of the law to take into account is section 233 of the Act. This section allows

any member of the company or any other person to whom shares in the company have been transferred by operation of law, to seek the court’s order against conducts, acts, and omissions in the company’s affairs which are or would be unfairly prejudicial to members’ interests. Apparently, the present matter has been predicated on this provision. Before invoking the foregoing provision of the law, the Court finds it pertinent to discuss various aspects covered or envisioned thereof. First, it is apparent that the affairs of the company must be conducted in an unprejudicial manner. Second, it is implied that there are people who are mandated to run the affairs of the company. Third, the law empowers the court to remedy the vices which, if proved, are truly or are likely to 17 prejudice the interests of the company members, generally or specifically. Fourth, the objective is to protect the interest of the members (or transferee of shares by operation of law) who are otherwise not in actual control of the affairs of the company or who have lesser mandates thereof. See, for instance, Velisas Elizabeth Deflose’s Case (supra); and Yasmin Haji v Kenyatta Drive Properties Ltd (supra). In the present matter, the petitioners are consistent that the 1st and 2nd respondents are: one, purporting to be members and shareholders of the 3rd respondent in lieu of the rightful shareholders; and two,

their conducts therein are unfair, illegal and prejudicial to the latter. The subsequent reliefs are sought in line with reclaiming the shares allegedly taken away by the 1st and 2nd respondent unlawfully. Hence, though the section used by the petitioners to move this Court in the present proceedings suits the petition, a substantial portion of effort is exerted in the recovery of shares by the petitioners. I have a number of reasons to hold the foregoing view. To begin with, a significant section of both the petition and supporting submissions is directed towards proving that the 1st and 2nd respondents unlawfully acquired shares of the petitioners in the 3rd respondent (see, paras 4, 11- 18 16,18 and 25 of the petition; 3-7,11,13,17 of the reply to the answer to petition; and part 2.1 of the submissions in support of the petition). Moreover and precisely, under paragraph 8 of the petition, the petitioners are categorical that, “However, with the demise of Vallabhdas Mulji Chavda, the administration of his estate was placed under the hands of the 1st petitioner. The 1st petitioner therefore files this suit claiming for the shares which came in his hands by virtue of death of his late father one Vallabhdas Mulji Chavda” (bolding rendered for emphasis). Further, all allegations of conducts termed as unfairly prejudicial to the petitioners are claimed that they commenced upon or

involving or after the alleged illegal transfer of shares to the 1st respondent (and later to the 2nd counterpart). That is, in the absence of the respective respondents as ‘shareholders/members’ of the 3rd respondent, the allegation of unfair conducts lacks the foundation. Essentially, the 1st respondent is not accused of having carried on his duty in a way which is prejudicial to the petitioners under his capacity as the director of the 3 rd respondent. 19 In view of the above analysis, the Court cannot avoid discussing if the recovery of shares which are alleged to be transferred from one shareholder to another person illegally are within the purview of section 233 of the Act. In my view, the section is not that elastic. Legally, shares in a company constitute a property like any other. It can be owned, transferred and attached in or after conclusion of the court proceedings. Consequently, it can be claimed back by the owner if it is illegally taken away from him. On such basis, the petitioners argued (at page 9 of the submissions) that the respondents were denying them their constitutional right to own the property under Article 24 of the Constitution of the United Republic of Tanzania, 1977. I am mindful of the Court’s decisions in that in some cases some affairs involving the shares of the company which are prejudicial to members may be pursued under section 233 of the

Act. The parties herein referred to most of them. However, not every dispute involving shares in the company can be pursued under the ‘unfair prejudice’ basis. For instance, a dispute over a breach of contract arising from sale of shares; or wrongful attachment of shares cannot be pursued under section 233 of the Act. Equally, the present matter falls in its distinct 20 squares. As I have alluded to above, the objective of present proceedings is to protect the interest of the members (or transferee of shares by operation of law) with insufficient power or influence in making the decisions of the company. It is not a cure-all recipe for all disputes involving company shares. Clearly, the petitioners in the matter at hand averred that the 1st respondent joined the 3rd respondent company as the Managing Director with no shares. Further, as rightly argued by the petitioners’ counsel, the subject company’s MEMARTS do not subject directorship of the 3rd respondent to shareholding. Article 17 of the Articles of Association (Annexure G. Chavda 1) is vivid in such regard. If this position is the conclusion to go by, then the 1st respondent was not having any shares at the inception of the 3rd respondent and/or when he joined the company. To the petitioners, the two respondents never acquired any shares in the 3rd respondent legally howsoever. Thus, if the 1st and 2nd respondents

were/are not shareholders or members of the company, as alleged by the petitioners; in whose hands then were/are powers of the owners of the 3rd respondent? That is, if the founder-shareholders and/or members of the company were the 21 appointing authority of the 1st respondent in the position of directorship under the MEMARTS; when and to whom did they relinquish the powers of holding him accountable to shareholder/members of the 3rd respondent? Further, it is not averred in the petition or reply to answer to the petition, that the petitioners exercised their powers to address the problem under the MEMARTS anyhow before seeking the Court’s intervention. It is not even mentioned if they ever held/attended any General Meetings of the 3rd respondent per Articles 13-16 of the Articles of Association (annexure G. Chavda 1). Nevertheless, I gather from the documents lodged with the Court that, the 2nd petitioner left Tanzania for London in 1971 (para 12 of the petition); transferred a half of his shares to the 1st petitioner in 1975 (para 8); and passed on in 1990 while in the UK (para 12). For all the time he was in London, it was pleaded, he left the affairs of the 3rd respondent in the hands of directors. Therefore, it goes without contention that he was keeping up with his interests in the 3rd respondent, at least up to 1975, when he gave his semi-ownership in the company to his

son – the 1st petitioner. 22 Further, per paragraph 15 of the petition, the 1st petitioner lived in Tanzania up to 2000s after which time “he left Tanzania leaving the company in the hands of the 1st respondent as the managing director”. The petition is thus, silent about other shareholders and/or members of the company and their statutory or contractual mandates under the MEMARTS. In addition, it is not evident the role the 1st petitioner was playing in the 3rd respondent since he was given the shares by his father (2nd petitioner) for more than a quarter century (25 years). It is to be noted further that, the 1st petitioner’s affidavits supporting his application for resealing (vide HC Misc. Civ. Cause No. 154 of 1993 – annexure PG 5 to the answer to petition), contain his depositions that he was a resident of Tanzania. Yet, in line with the ancient proverb: like father, like son, the petition is soundless in regard to his involvement in the 3rd respondent before he “left the company in the hands of the 1st respondent”. The adamance of the petitioners as exhibited in the above analysis, leads the Court to finding that, if the impugned affairs began in the 1970s (the petitioners are acknowledging as correct, the annual return to the Registrar of Companies up to 1976); the affairs were accordingly actively 23 and/or passively condoned by them. That is, the petitioners did

not observe or perceive any conducts in the 3rd respondent up to the alleged 2000s. I am inclined to hold that it is not legit for shareholders to relegate their respective mandates in the company to the Court. To allow such trend to grow to fruition is, to me, tantamount to inviting the Court to supervise every task of Tom, Dick and Harry in the companies. Time is ripe for shareholders to appreciate matters for their boardrooms and those statutorily reserved for the courtrooms. Having examined the above aspects, it is apparent that another equally important enquiry is in respect of the pleaded allegations of fraudulent actions by the respondents. As both sides have ably acknowledged in their respective arguments, the standard of proof in civil proceedings in which criminal acts are pleaded, is higher than the orthodox balance/preponderance of probability. See, for instance, Kanji Patel v Kabui Njoroge [1971] HCD. 336; and Alex Senkoro and Others v Eliambuya Lyimo (As Administrator of the estate of Frederick Lyimo, Deceased), Civ. Appeal No. 16 of 2017 (unreported). 24 It is evident that in the matter at hand, the averments in the petition, answer to the petition and the reply thereto are barely transformed into evidence on the basis of the affidavits verifying them. To me, the standard envisaged herein craves for more involvement of parties in this regard. It is also a clear

fact that whereas the petitioners alleged that the 1st and 2nd respondents are not shareholders in the 3rd respondent for want of legitimate transfer of shares; the latter asserted that they lawfully acquired them from the petitioners. Hence, it is the petitioners’ words against the respondents’ statements. Each respective assertion is verified as being truthful. More so, the letter from BRELA dated September 16th, 2021 (annexure G. Chavda 7) is instructive, in part that, “In consideration of the seriousness of the allegations raised regarding the said transaction which basically attracts criminal liability to the wrong doer(s) and taking into account that the Registrar has no capacity to ascertain as to whether the disputed transfer documents were forged or not, you are hereby informed to report the matter to relevant investigation authorities so that appropriate legal measures can be initiated” (with Court’s emphasis). 25 In my view, parties would need to undergo a vigorous examination of witnesses and evaluation of exhibits for the Court to arrive at a just decision on the rightful owner of the shares herein. That interrogation can be done effectively in appropriate proceedings specifically commenced for the opportune objective. For instance, the proposed approach is also latent in the arguments of the petitioners who invited the court to make adverse inference against the

respondents allegedly for the latter’s failure to produce certain documents. Such modus operandi is more ideal in ordinary trials of suits. The above firm remarks notwithstanding, the Court is of the further view that, because it has not been specifically moved by parties to adjudicate on a suit for recovery of shares, this discussion needs to be pegged here. I accordingly do so. Other contentions apparent in this matter are that this petition is incompetent because the petitioners did not deposit the security for costs as ordered by this court; that the affidavits verifying the petition and reply to answer to the petition were defective; that the application herein is time barred; and that the petitioners have no requisite locus standi. I will address these aspects very briefly. As for security for costs, I have gone 26 through the Court records and observed that the money was deposited on June 20th, 2024. Hence, the petitioners complied with the order of the court within 14 days given to them vide its ruling dated June 7th, 2024 (Miscellaneous Commercial Application No. 138 Of 2023). Regarding the impugned affidavits, it is not in dispute that the same were attested in UK. In the circumstances of this matter, such act did not vitiate the deposition. It is to be noted further that, the petition itself was also signed and verified in London. Hence, the two documents rhyme

in harmony, in my view. The respondents also attacked the petition from the angle that it was time barred and/or that the petitioners lacked the necessary capacity to pursue this matter. As I have ably reasoned and concluded earlier, this is not the suit for recovery of shares sensu stricto. Hence, matters as to whom exactly and/or when the shares were lawfully transferred, if at all, are inconclusively determinable at this stage. The same deduction is applicable to the arguments for and against the locus standi hereof. In fine, the petitioners have not succeeded in exhibiting with explicit proof how the affairs of the 3rd respondents have, are or will be conducted 27 in a manner which is unfairly prejudicial to their interests generally or specifically. The petition is accordingly unmerited. I proceed to dismiss it. Further, I am not naïve to the principle that in befitting circumstances of the case, the Court normally awards costs thereof to the winning party. Nevertheless, given the oscillations involved in this matter and the reality that parties hereof are relatives, each will shoulder own costs. It is so ordered. C.K.K. Morris Judge July 26th, 2024