amazon trading co t ltd vs africa asia precious stone and mining co ltd 2007 tzhc 427 30 march 2007

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 205 OF 2005 AMAZON TRADING CO. (T) LTD.........PLAINTIFF VERSUS AFRICA ASIA PRECIOUS STONE AND MINING CO. LTD..............DEFENDANT Date of Last Order : 8/2/2007 Date of Ruling : 30/3/2007 RULING ORIYO, J On 9/2/2006, this court entered a Consent Judgment against the applicant for USD 2,400,000, Interest and Costs. The consent judgment was recorded after Mr. Msemwa, Learned Counsel for the respondent and Mr. Mukeshi, Pattin, who had presented himself as the Managing of the applicant, agreed on the settlement terms. On 12/6/2006, the applicant filed an application to set aside the consent judgment with costs. The reason behind the application was contained in the supporting affidavit of one WATCHARIN KEOVIMOL in that the consent judgment was obtained by fraud practiced on the court. The respondent filed a counter affidavit and Mr. Pattin also filed his own counter affidavit. Both counter affidavits denied that there was any fraud practiced on the court to enter the judgment as it did. The respondent also raised preliminaiy objection on points of law that the application was time barred and that the applicants affidavit in reply was defective. The applicant was at the hearing represented by Mr. Magafu, learned counsel and Mr. Msemwa learned counsel advocated for the respondent. On the application being filed beyond 30 days statutory period, the applicant seeks the protection of SECTION 26 of the Law of Limitation Act, (Cap 89 R.E. 2002). Section 26 states:- “Where in the case o f any proceedings for which a period of limitation is prescribed:- (a) the proceeding is based on the fraud of the party against whom the proceeding is presented or of his agent, or of any person through whom such party or agent claims; (b) N/A (c) N/A the period of Limitation shall not begin to run until the plaintiff has discovered the fraud....... or could with reasonable diligence, have discovered it.” (emphasis supplied) Here it was the word of Mr. Pattni and other Tanzanian share holders and Directors against that of" Watcharin Keovimol and the other Thai Share holders and Directors. By paragraph 2 of his affidavit, Watcharin state that he became aware of the consent judgment on 30/5/2006 when he arrived in Tanzania and read the story in the NIPASHE. Copies of Immigration Stamp in his passport was annexed as proof of the date and copy of. News paper Edition of 22/3/2006. Mr. Pattni's counter affidavit did not provide any documentary evidence to controvert this fact. Due to the allegation of fraud here, the provisions of SECTION 26 above come into play to protect the applicant and the veil of incorporation of the applicant has to be lifted (See SOLOMON VS SOLOMON). Therefore the application was filed within time and is properly before the court. “Fraud vitiates everything” is a well settled principle of law in our jurisdiction as was stated by this court (Rubama, J; as he then was) in C.C. 210/89 Transport Equipment Ltd Vs. D.P. Valambhia. In one of the rulings, dated 28/12/1990; the learned Judge stated “Mr .. had lied to the court. Further, in addition to the respondent’s fraud upon the court, the courts record of 29th August, 1989 does not contain the record of the settlement ........... In the circumstances, I find that merits exist for setting aside this court's order of 29 August, 1989 as it had been obtained by fraud ... I further hold that the respondent cannot be allowed to benefit under the Law o f Limitation out of his fraud." That is the legal position where there is allegation of fraud, until proved otherwise. The second point of preliminary objection was that the Rejoinder Affidavit of the applicant was defective. Again, despite the sensitive nature of the allegations of fraud played upon the court; all pleadings must be in conformity with the law and acceptable to parties." I therefore grant the applicant leave to withdraw the affidavit in reply filed on 1/8/2006 in the name of MAJURA MAGAFU and file a fresh one on or before 30 May, 2007 in the name of the appropriate officer of the applicant. In the result the preliminary points of objection are not sustained. Costs to abide the results. K.K. Oriyo JUDGE 30/ 3/2007 Order: Hearing Main application 6/6/2007 K.K. Oriyo JUDGE 30/ 3/3007