ruling COMMERCIAL CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO. 021721 OF 2024 MUHAMMED NAZEER PARAPURAM ……….………....................1ST PETITIONER SHANTHAHAR PILAKKAL ……………………............................... 2ND PETITIONER

VERSUS ABDUL SAMAD AMEENA MAMZIL ......................................... 1ST RESPONDENT AFRO AROMATIC LIMITED .................................................... 2ND RESPONDENT REGISTRAR OF COMPANIES ................................................. 3RD RESPONDENT

RULING Date of Last Order: 15/01/2025 Date of Ruling: 14/02/2025 GONZI, J. The 1st and 2nd Petitioners as Members and Directors of the 2nd Respondent Company filed the present Petition with its attendant verifying affidavit, against the 1st Respondent, for unfair prejudicial conduct in the conduct of affair of the 2nd Respondent Company. The unfair practices complained of involved alleged fraudulent transfer of 300 ordinary shares of the 1st Petitioner to the 1st Respondent which transfer was presented to the 1 3rd Respondent for registration. The 1st and 2nd Petitioners, upon being aware of the intended registration of the alleged fraudulent transfer of shares, wrote to the 3rd Respondent calling upon it not to effect the registration of the share transfer and further reported a complaint of forgery to Oysterbay Police Station ion Dar es Salaam. In this Court, the 1st and 2nd Petitioners prayed for a series of declaratory and prohibitory orders against the Respondents. These included a declaration that the 1st Respondent as a director of the 2nd Respondent has been conducting the affairs of the 2nd Respondent Company in a manner that is prejudicial to the interests of the Petitioners. An order was sought against the 3rd Respondent prohibiting him from registering the transfer of 300 ordinary shares from the 1st Petitioner to the 1st Respondent which was presented to him for

registration. Other orders sought included conduct of investigation and audit of the accounts of the 2nd Respondent and the calling of the meetings of the Board of Directors of the 2nd Respondent, amongst others. The Respondents resisted the Petition by way of an Answers to the Petition and verifying affidavits. In addition, the 1st Respondent raised a Notice of Preliminary Objections that: 2 (i) That the Petition is bad in law for want of jurisdiction of this Hounourable court. (ii) That the Petition is bad in law and untenable for contravening the provisions of Order VI rule 4 of the Civil Procedure Code [CAP 33 R. E. 2019] (iii) That the Petition is bad in law and untenable for lacking a cause of action. (iv) That the suit is bad in law and defective for contravening the provision of rule 19 (1) of the High Court (Commercial Division Procedures) Rules, 2012 as Amended 2019. The hearing of the Preliminary Objections proceeded by way of written submissions. Mr. Gideon P. Opanda, Learned Advocate represented the 1st Respondent. The Petitioners were represented by Mr.Taher Muccadam, Learned Advocate. I thank both Learned Counsel for their useful submissions. Mr. Opanda, Learned Advocate, opted to argue only grounds No. 1 and 4 of the Preliminary Objections and prayed to abandon the rest of the grounds. With regard to the first ground of the Preliminary Objection, it

was submitted that the Petition is bad in law for want of jurisdiction of this 3 Honourable Court. He submitted that according to Halsbury’s Laws of England, Vol. 10 paragraph 314 jurisdiction is defined to mean the authority which the trial court has to decide matters that are litigated before it or to take cognizance of matters prescribed in a formal way for its decision. He argued that the limits of this authority are imposed by the statute, charter or commission under which the court is constituted. He added that limitation may be either as to the kind and nature of the claim or as to the area which jurisdiction is extended or it may partake both characteristics. He submitted that an issue of jurisdiction should be determined first before venturing into the merits of the case. He cited the case of PATRICK WILLIAM MAGUBO v. LILLIAN PETER KITALI, Civil Appeal No. 41 of 2019, Court of Appeal of Tanzania at Mwanza, Tanzlii where the Court held that: “It is a primary duty of every court before venturing into a determination of any matter before it, to firstly satisfy itself that it is vested with the requisite jurisdiction to do so. It was further hold that jurisdiction of courts is a creature of statutes and is conferred and prescribed by law and not otherwise” Mr. Opanda, Learned Advocate, argued further that the Court lacks jurisdiction to adjudicate the Petition for two

reasons, namely that: 4 (a) There is no ninety (90) days statutory notice to sue the Government contrary to Section 6 (2) of the Government Proceedings Act, [CAP 5 R.E. 2019] (b) Allegations of fraud in the Petition. In clarifying the above arguments Mr. Opanda, Learned Advocate, submitted that under Section 6(2) of the Government Proceedings Act, [CAP 5 R.E 2019] the law provides that; “No suit against the Government shall be instituted and heard unless the claimant previously submits to the Government Minister, Department or Office concerned a notice of not less than ninety days of his intention to sue the Government, specifying the basis of his claim against the Government, and he shall send a copy of his claim to the Attorney- General and the Solicitor General.” Mr. Opanda submitted that in the case of DAUDI MFINANGA (as Administrator of the estate of the late Habibu Hamadi Hamisi) v. THE ATTORNEY GENERAL, Civil Case No. 166 of 2019, High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam, Tanzlii at page 9, the Court held that: 5 “A close scrutiny of the above provision indicates that it is couched in obligatory terms meaning that issuance of the notice prior to institution of the suit is mandatory and the omission of which vitiates the proceedings.” It was submitted for the 1st respondent that, in the instant petition, the Registrar of Companies has been

sued without being prior issued with a notice of the ninety days intention to file a suit against the government. It was argued that absence of the statutory notice to sue the Government renders the petition incompetent for the violation of the law. On the allegation of fraud in the Petition, it was submitted by Mr.Opanda that the petitioners are alleging commission of fraud as unfair prejudice against the 2nd Respondent by the 1st Respondent. Mr. Opanda submitted that in the case of TWAZIHIRWA ABRAHAM MGEMA v. JAMES CHRISTIAN BASIL (As Administrator of the Estate of the late Christian Basil Kiria, Deceased), Civil Appeal No. 229 of 2018, the Court of Appeal of Tanzania at Dar es Salaam, Tanzlii at page 4, held that: “This is a pure allegation of fraud which is civil proceedings ought to be specifically pleaded and 6 proved on a higher degree of probability than that which is required in ordinary civil cases.” He therefore argued that the Court has no jurisdiction over allegations of fraud in the petition. The last ground of objection argued by Mr. Opanda, Learned Advocate, was that the petition is bad in law and defective for contravening Rule 19(1) of the High Court (Commercial Division Procedures) Rules, 2012 as Amended in 2019 which provides that: “The format of pleadings presented for filing to the Court shall be in paragraphs, “Times New Roman” font type, twelve font

size, 1.5 line spacing and shall not be in more than ten pages”. Mr. Opanda submitted that the petition does not conform to the dictates of the mandatory requirements of the law that the pleading shall not be in more than ten pages. The petition before this honourable court is of thirteen pages contrary to the required pages by the law. Mr. Opanda, Learned Advocate, submitted that in the case of RUPESH KUMAR SONI v. VINOD KUMAR SONI & 2 Others, Miscellaneous Commercial Cause No. 25 of 2022, the High Court of Tanzania (Commercial 7 Division), at Dar es Salaam, (Tanzlii) in its ruling dated 24/02/2023 at page 18 ruled that: “I am of the view that when the petition disregards the format or procedures prescribed it renders the petition incompetent. The available remedy as submitted by the counsel for the Respondent is for it to be struck out.” Mr. Opanda, concluded his submissions for the 1st Respondent by praying for this Honourable Court to dismiss the Petition in its entirety with costs. In his reply submissions, Mr. Taher Muccadam, Learned Advocate, submitted that the Commercial Court in Dar es Salaam has Jurisdiction because the 2nd Respondent (Afro Aromatic Limited) has its registered head office in Dar es Salaam where the company’s affairs are conducted and that the alleged acts of fraud, including falsification of documents and fraudulent transfer of shares, took place at

the company’s head office and were later attempted to be registered with BRELA, whose office is also in Dar es Salaam. Thus, he argued, the cause of action wholly arose within the Jurisdiction of this Court. He referred the court to the case of National Bank 8 of Commerce Ltd v. Dar es Salaam Education and Office Stationary [1995] TLR 272 where the court held that: “…Jurisdiction is determined by where the cause of action arose…” Mr. Muccadam, Learned Advocate, submitted that the Commercial Court has jurisdiction over matters involving companies headquartered within its territorial boundaries as it was decided in the case of M/S Serengeti Breweries Ltd v. Joseph Leggeye, Commercial Case No. 94 of 2021. He also relied on the case of Kohinoor Paints Factory Ltd v. BM Sales Ltd [2006] TLR 218 which takes into account the place where the alleged wrongful acts, such as fraudulent misrepresentation, occurred. Mr. Muccadam, Learned Advocate, also submitted with regard to the issue Compliance with Order VI Rule 4 of the Civil Procedure Code CAP 33, R.E 2019 in respect of allegations of fraud in the petition. He submitted that the Petition provides specific particulars of fraud committed by the 1st Respondent, including:  Forging minutes of board meetings.  Falsifying a share transfer agreement and documents.  Attempting to register fraudulent share transfers at BRELA. 9 He argued

that these allegations are supported by annexed documents, complying with Order VI Rule 4 of the Civil Procedure Code CAP 33, R.E 2019. Mr. Muccadam relied on the case of Twazihirwa Abraham Mgema v. James Christian Basil, Civil Appeal No. 229 of 2018, which establishes that fraud must be specifically pleaded in the pleadings. This means that the claimant must lay out the facts constituting the fraud in clear and concise terms. The purpose is to provide the defendant with sufficient notice of the allegations so they can adequately prepare a defense. He added that the court in this case held that allegations of fraud in civil proceedings require proof to a higher standard than that required in ordinary civil claims, though not as high as the criminal standard of beyond a reasonable doubt. This standard ensures that claims of fraud are substantiated with concrete evidence, reducing the potential for frivolous or baseless allegations. He submitted that the Petitioners have attached sufficient documentation to establish a prima facie case of fraud, aligning with the higher standard of proof required. Mr. Muccadam, Learned Advocate, relied on the case of Elias v. Associated Newspapers Ltd [1980] TLR 41 where the court emphasized that “…even if fraud is not pleaded with absolute precision, this 10 does not automatically invalidate the cause of action…” provided that the pleadings

disclose a genuine issue requiring determination. Procedural defects or lack of perfect articulation of fraud do not extinguish a party's substantive right to have their claims adjudicated on the merits. On the alleged violation of Rule 19(1) of the Commercial Court Rules, Mr. Muccadam, Learned Advocate, submitted that while the Petition exceeds the prescribed page limit, this is a procedural issue that does not invalidate the substantive rights of the Petitioners. Furthermore, he argued that the Petition’s annexures and detailed pleading are necessary due to the complexity and volume of evidence required to demonstrate fraud and unfair prejudice. Mr. Muccadam, referred the court to the case of Rupesh Kumar Soni v. Vinod Kumar Soni & 2 Others, Miscellaneous Commercial Cause No. 25 of 2022, where the court held that “…Procedural defects, such as exceeding page limits, do not nullify substantive claims if they cause no prejudice….”. He also cited the case of Al-Karim Shamshudin Habib v. Equity Co. Ltd &Viovena Co. Ltd, Commercial Case No. 60 of 2016 where the court held that principle of overriding objectives allows the Court to prioritize substantive justice over procedural technicalities. He submitted that in view of those authorities, the 1st 11 Respondent’s objection regarding the Petition exceeding the prescribed page limit under Rule 19(1) of the High Court (Commercial

Division Procedure) Rules should fail since procedural irregularities do not prejudice the 1st Respondent and do not affect the merits of the Petition. He submitted that the Petitioners' substantive claims of fraud and unfair prejudice under the Companies Act, are the central issues for determination, and procedural rules should not obstruct justice. On the objection as to non-issuance of Statutory Notice under the Government Proceedings Act, Mr. Muccadam submitted that the Registrar of Companies (BRELA) is not a necessary party for adjudicating the claims of fraud and unfair prejudice, as the core dispute lies between the Petitioners and the 1st Respondent. Additionally, he argued, the failure to issue a notice does not affect the claim’s validity, as the Petitioners’ grievances primarily relate to the 1st Respondent’s actions. He sought refuge to the principle of overriding objective which allows curing such defects to prevent injustice. Mr. Muccadam, Learned Advocate submitted that in the case of Thomas Ngawaiya v. Attorney General & Others, Civil Case No. 177 of 2013 it was held that Government institutions should not be sued without notice, 12 but the Court has discretion where the primary cause of action involves private disputes. Mr.Muccadam also relied on the case of in the case of Daudi Mfinanga v. Attorney General, Civil Case No. 166 of 2019 where the plaintiff filed

a suit against the Attorney General, alleging negligence by an employee of a government institution that resulted to the wrongful death of a third party. The defendant raised a preliminary objection, arguing that the statutory 90-days’ notice to sue the government under Section 6(2) of the Government Proceedings Act, CAP 2019 had not been properly issued. The plaintiff contended that the statutory notice was issued and served upon the Attorney General but not directly on the government institution involved. The Court held that the statutory requirement under Section 6(2) of the Government Proceedings Act, CAP 2019 is important for notifying the government about intended legal action. However, failure to meet this requirement is not fatal if the government or its institutions are not central to the core grievance or if the omission does not prejudice the government’s ability to defend the case. Based on the foregoing authority, Mr. Muccadam submitted that non- compliance with the statutory notice requirement is not fatal where the government’s involvement is peripheral or where the failure to comply does 13 not prejudice the government’s ability to prepare a defense and that the overriding objective of achieving substantive justice outweighs procedural irregularities. Mr. Muccadam, submitted that in the case at hand, the 3rd Respondent, Registrar of Companies, is not a core

party to the grievance since the allegations of fraud, unfair prejudice, and forgery are primarily directed against the 1st Respondent. He argued that the involvement of the Registrar of Companies is Peripheral, as its role is administrative (registration of documents), and its inclusion as a party does not alter the substance of the allegations against the 1st Respondent. Failure to issue a statutory notice to the Registrar of Companies does not prejudice its ability to respond to the claims. He added that after all the 1st Respondent cannot rely on the lack of statutory notice to dismiss the Petition, as the fraud allegations are primarily against the 1st Respondent. Mr.Muccadam relied on the case of Thomas Ngawaiya v. Attorney General & Others, Civil Case No. 177 of 2013, where the court held that procedural requirements, such as the statutory notice, are not fatal when substantive justice is at stake. 14 He relied on the case Yakobo Magoiga Gichere v. Peninah Yusuph, Civil Appeal No. 55 of 2017, where the Court of Appeal held that “minor procedural lapses should not impede the administration of justice, especially when they do not prejudice the other party”. He added that the primary duty of the court is to dispense justice, the procedural rules should aid, not hinder, this duty. He concluded that the 1st and 2nd Petitioner pray before this Honourable Court to Set aside the

Preliminary Objections and allow the matter to proceed to hearing on merits. Mr. Opanda, Learned Advocate, made rejoinder submissions insisting on two points, namely that: 1. The reply submission by the Counsel for the Petitioners is totally misconceived 2. The reply submission is from the bar and afterthought He submitted that the said reply submissions by the Counsel for the petitioners are based on the merit of the petition which is prematurely made before this Honourable Court. The objections are only pure points of law and the submissions in chief based only on those grounds. 15 Mr. Opanda, submitted that issuing of the statutory to sue the government is not optional where the party may opt to issue or not. It is a mandatory requirement of the law to issue the notice of ninety days to sue the Government. Failure to issue the said notice under section 6(2) of the Government Proceedings Act is fatal and the Court will be left without any option but to strike out the suit. He added that the cited cases of Thomas Ngawaiya v. Attorney General, Daudi Mfinanga v. Attorney General (supra) are good law but distinguishable from the instant petition. He submitted that there are no facts pleaded in the petition to warrant that exception sought from the court to exercise it discretion. He submitted that it is trite law that the court’s discretion must be exercised judiciously.

The Petitioners in the petition or affidavit in support of the Petition have not shown any circumstances through which the court may exercise the said discretion judiciously. Mr. Opanda, further submitted that the Learned counsel for the petitioners in his submissions argued from the bar and as an afterthought in law by seeking exceptions of not issuing statutory notice after being served with a preliminary objection in that regard and the submissions in chief in 16 support of the preliminary objections. That marked the end of the rival submissions by the Learned Counsel. I thank them both, once again. I have considered the rival submissions by the Learned Counsel for the parties herein. The first preliminary objection made by Mr. Opanda is failure by the Petitioners to issue a 90-days Statutory Notice before filing the case against the 3rd Respondent the Registrar of Companies and filing the case without joining the Attorney General as a necessary Party. Mr. Opanda, categorized this objection under lack of jurisdiction on the court to entertain the matter. In the same category he blamed the Petitioners for introducing matters of fraud without particularizing the same. The second preliminary objection was with regard to violation of Rule 19 of the Commercial Court Rules for the Petition violating the page limit rule where instead of a maximum of 10-pages, the petition contains

13 pages. These are the only preliminary objections argued by the 1st Respondent. The reply submissions by Mr. Muccadam, Learned Advocate for the Petitioners, went beyond what was argued by Mr. Opanda, Learned Advocate for the 1st Respondent. Issues like cause of action and territorial jurisdiction of the court were quite extraneous to the preliminary objections at hand as argued. 17 On non-issuance of a 90-days statutory notice to the 3rd Respondent, there is no dispute that the Petitioners instituted the petition at hand impleading the Registrar of Companies as the 3rd Respondent but without a prior issuance of 90-days’ Notice of Intention to sue the Government and without making the Attorney General a party. Mr. Muccadam, Learned Advocate for the Petitioners, admitted that omission but argued that in the circumstances of this case compliance with section 6(2) of the Government Proceedings Act was not necessary as the Registrar of Companies was joined not a necessary party and that the dispute is centered in the relationship of the Petitioners and the 1st Respondent in respect of management of the affairs of the 2nd Respondent company. also, he relied on overriding objective rule to cure the defect. He relied on the case of Thomas Ngawaiya v. Attorney General & Others, Civil Case No. 177 of 2013 for the position that Government institutions should not be sued without notice,

but the Court has discretion where the primary cause of action involves private disputes. I agree with this rule. However, where the judicial proceedings are against a Government institution and the reliefs or orders sought are likely to impose an obligation or confer a right upon the government institution thus sued, the 90 days statutory Notice and joinder of the Attorney General 18 become mandatory under the provisions of section 6 of the Government Proceedings Act. I have looked at the Petition at hand and the reliefs sought by the Petitioners in relation to the 3rd Respondent, the Registrar of Companies. Paragraph (f) of the prayers reads that: “(f) an order that the 3rd Respondent be and is prohibited from registering the transfer of the 300 ordinary shares of the 1st Petitioner in the 2nd Respondent to the 1st Respondent.” It is clear that a prohibitory order is expressly sought by the 1st and 2nd Petitioners as against the 3rd Respondent which is an executive Agency, hence a government within the meaning of section 6 of the Government Proceedings Act. The 3rd Respondent, by this prayer, becomes a necessary party without whom no effective decree can be passed in the circumstances of this case, in the event the Petition succeeds as prayed. The 3rd Respondent is a government institution whose statutory mandate it is to, inter alia, maintain the register of companies

wherein records concerning registered companies are to be entered including shareholding status of the companies. In this petition, the Petitioners, inter alia, are seeking to obtain a prohibitory 19 order against the 3rd Respondent Company to prevent it from performing its statutory mandate. If the prayers are granted as prayed, implementation of the ultimate decree will impose a duty, obligation or liability upon the 3rd Respondent who will have to stop performing his otherwise normal statutory duty, by an order of the court. The Petitioners, by seeking enforceable orders against the Registrar of Companies, have widened the scope of the dispute beyond the mere Members and Directors of the Company. They have the 3rd Respondent a necessary party in the case. If the petition is granted as presented, there is a possibility of adverse orders, including prohibitory orders, being imposed upon the 3rd Respondent. The 3rd Respondent has been joined by the petitioners for the purpose of obtaining a specific order against it. This is, therefore, a suit against the Government. The law requires that prior to instituting a suit against the Government, a 90-days statutory Notice should be given to it and the Attorney General and that the Notice should be served upon the Solicitor General. Also, the law requires that the Attorney General should be made a party to the suit. This was not done

by the Petitioners. Mr. Muccadam, Learned Advocate for the 1st and 2nd Petitioners, admitted to the omission to issue a 90-days statutory Notice and joining the Attorney General in the case but he sought refuge to the 20 overriding objective and substantive justice rules in an attempt to remedy the defects. The Petitioners’ learned counsel has pleaded with the court to invoke the overriding objective principle and condone the defect of non-issuance of the 90 days’ notice and non-joinder of the Attorney General to a suit against the Government. I am not persuaded. In the case of Leticia Mwombeki v. Faraja Safarali and 2 Others, Civil Appeal No. 133 of 2019, the Court of Appeal of Tanzania at page 10 of the judgment stated inter alia that: “Thus, we decline Mr. Mrindoko’s invitation to invoke the overriding objective principle to remedy a fatal omission which cannot be glossed over as it goes to the root of the matter and occasion a failure of justice. See MONDOROSI VILLAGE COUNCIL AND

TWO OTHERS VS TANZANIA BREWERIES LIMITED AND FOUR OTHERS, Civil Appeal No. 66 of 2017 and

NJAKE ENTERPRISES LIMITED VS BLUE ROCK LIMITED AND ANOTHER, Civil Appeal No. 69 of 2017.” Therefore, it is my finding that the first preliminary objection on non- issuance of 90-days statutory notice and non-joinder of the Attorney General, succeeds and is hereby upheld. The law is loud and clear under 21 section 6(3) and (4) of the Government Proceedings Act, Cap 5 of 2019 as amended by Written Laws (Miscellaneous Amendment) Act No. 1 of 2020 which provides that: “(3) All suits against the Government shall, upon the expiry of the notice period, be brought against the Government department, local government authority, executive agency, public corporation, parastatal organization or public company that is alleged to have committed the civil wrong on which the civil suit is based, and the Attorney General shall be joined as a necessary party. (4) Non-joinder of the Attorney General as prescribed under subsection (3) shall vitiate the proceedings of any suit brought in terms of subsection (3).” (emphasis added) I have considered the cases cited and relied upon by the learned counsel for the Petitioner but I find that he has misconstrued them. There is no authority in them that a suit against the Government, which specifically 22 seeks adverse orders against the government, can be instituted in Court without issuance of a 90-days’ notice and without joining the Attorney General in

that case as a necessary party. I understand that the court, in its discretion and with a bid to ensure that ends of justice are not defeated, may dispense with the notice requirement or notice period in appropriate cases. No such circumstances were pleaded in the case at hand. The argument came after a preliminary objection had been raised by the other side. It could not avail the Petitioners in the circumstances. Having upheld the first preliminary objection, in terms of Section 6(4) of the Government Proceedings Act, it is enough to vitiate the present petition. In James Lugmebe vs Deposit Insurance Board (D.I.B) Liquidators of FBME Bank Ltd (Commercial Case No. 145 of 2023) [2024] TZHCComD 48 (19 April 2024), this Court held that: “I have considered the cases cited and relied upon by the learned counsel for the Plaintiff but I find that she has misconstrued them. There is no authority in them that a suit against the Government can be instituted in Court without issuance of a 90-days’ notice and without joining the Attorney General in that case as a necessary party. Having upheld the 23 first preliminary objection which, in terms of Section 6(4) of the Government Proceedings Act, is enough to vitiates the present suit.” On the alleged deficiency in giving particulars of fraud, Mr. Opanda, Learned Advocate, was vague. I accept the argument by Mr. Muccadam that the petition

made compliance with Order VI Rule 4 of the Civil Procedure Code CAP 33, R.E 2019 in respect of allegations of fraud in the petition. Indeed the Petition provides specific particulars of fraud allegedly committed by the 1st Respondent, including forging minutes of board meetings, falsifying a share transfer agreement and documents and attempting to register fraudulent share transfers at the office of the Registrar of Companies, and other fraudulent acts. The alleged lack of jurisdiction due to non-pleading of particulars of fraud, was a misconception by the Learned Counsel On the Petition exceeding page limit and thus offending Rule 19(1) of the Commercial Court Rules, I accept the arguments by Mr. Opanda that the same is an irregularity. The Rules were enacted for a purpose and were meant to be followed. However, whereas Mr. Opanda called for dismissal of the petition based on that irregularity, in my view, the error attracts an order 24 for rectification of the offending pleadings with or without costs. In the case of Msety Philemon Gotora (as the administrator of the estate of the late Philemon Gotora) & Another vs North Mara Gold Mine Ltd (Commercial Case No. 143 of 2023) [2024] TZHCComD 280 (18 October 2024), while following the position in GG REFINERY LIMITED vs RO WATER SA (PTY) LIMITED [2024] TZHCcomD 191 (TANZLII), this Court held that the defect is not fatal and there

is a room for rectification. I fine, the Preliminary Objections on non-issuance of 90-days statutory Notice and the contravention of Rule 19(1) of the Commercial Court Rules, are upheld. I find that the petition at hand is bad in law for contravening Section 6(2) and 6(3) of the Government Proceedings Act, Cap 5 RE 2019. Also, I find that the Petition is bad for exceeding the 10 pages limit set by Rule 19 of the Commercial Court Rules. Mr. Gideon Opanda, learned counsel for the 1st Respondent, in his submissions, prayed that the petition be dismissed with costs. However, as I find the petition to be incompetent, I hereby strike it out with costs. It is so ordered. 25 A. H. GONZI

JUDGE 14/02/2025 Ruling is delivered in Court this 14th day of February 2025 in the presence of Mr. Taher Muccadam, Advocate for the Petitioners and Mr. Patrick Mlewo, Advocate for the 1st Respondent and Mr. Moses Kiondo, Advocate for the 2nd Respondent. A. H. GONZI

JUDGE 14/02/2025 26