MAGANDULA RULING

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA MISCELLANEOUS CIVIL CAUSE NO.4552 OF 2023 BERTHA MAGANDULA ……………………………………………………PETITIONER

VERSUS MAKOYE HOSPITAL LIMITED…………………………………….1ST RESPONDENT MAKOYE ATHUMANI SHIYUNGA………………………………..2ND RESPONDENT

RULING 10th December, 2024 & 21st February, 2025 KAMANA, J. In this petition, Bertha Magandula, the petitioner seeks orders against Makoye Hospital Limited and Makoye Athumani Shiyunga, the respondents. The sought orders are as follows: 1. The court be pleased to grant leave to the petitioner to present a winding up petition of Makoye Hospital Ltd.

2. An interim order restricting the Respondents from disposing of assets of the company by way of sale, mortgage or gift pending the winding up petition.

3. An interim order barring the company from borrowing or further investment pending the determination of the intended winding-up proceedings. 1 4. In the alternative, an order for valuation of the company and buying off the 20% shares of the petitioner.

5. Cost be provided for.

6. Any other order or directions this Hon. Court may deem fit to order. When I was in the course of drafting the ruling, I thought it necessary to invite parties to address me on whether a leave is needed for a shareholder of the company registered under the Companies Act, Cap. 212 to file a petition for leave to file a petition for compulsory winding up. Mr. Outta, learned Counsel for the petitioner, contended that the leave of the court must be granted before the petition for compulsory winding up is filed. He amplified that there must be a resolution of the board of directors for the company to be wound up. He argued that the petitioner is unable to file the petition for compulsory winding up for want of locus as the decision to wound up must be sanctioned by the board of directors. The second respondent, a lay person, who also represented the first respondent did not argue the point raised by the court as it involves legal issues. 2 As a matter of principle, the Companies Act does not set as a precondition that a petitioner for compulsory winding up to have a leave of the court before filing the petition. Further, with due respect to Mr. Outta, the argument that the petitioner is unable to file her petition without leave of the court is misplaced. According to section 281(1) of the Act, a contributory is entitled to file a petition for compulsory winding up subject to the

conditions set under section 281(2) of the Act. That being the position, this petition is incompetent in law. I dismiss it with no costs. The petitioner is at liberty to file a petition for compulsory winding up of the first respondent and seeks the rest of the orders during the pendency of the petition for compulsory winding up. It is so ordered. Right To Appeal Explained. DATED at MWANZA this 21st February, 2025.

KS KAMANA

JUDGE 3