20070402 TZHC Arusha

IN THE HIGH COURT OF TANZANI

AT ARUSHA (PC) CRIMINAL APPEAL NO. 8 OF 2005 ORIGINATING FROM DOS/DOSI PR. COURT C.C.101 {K/TETO DISTRICT COURT CR.APPEAL NO. 13/2:tA· ~ .

1. JOJI MKUNGURU } - ~ 2. MALIMA KUTOKA .. . . . . . . . . . . ./s,_ PELLANTS - Versus - THE REPUBLIC . . . . . . . . . . . . . . . . . . .. . . . .. RESPONDENT (CONSOLIDATED PC CRIMINAL APPEALS NO. 5 AND 8 OF 2005) ·Date of Hearing of the Appeal: 26th March; 2007 Date of Judgment: 2nd April, 2007

JUDGMENT BWANA, J.

1. Both Appella"nts were convicted by the Dosidosi Primary Court for Robbery with Violence and were sentenced to serve prison sentences of 15 years each. It was alleged by the victim of the robbery ·that she was ·assaulted by the two Appellants and robbed of TShs.160,000/=. Being aggrieved by the outcome of the case, they appealed to the District 2 Court at Kibaya. Their appeals were dismissed, hence this second appeal.

2. I should note at this early stage that the Appellants' grounds of appeal were not well canvassed by the District Court. Had it done so, it is my considered view, that the said Court would have realized the inadequacies present in both the proceedings and judgment of the Primary Court at Dosidosi. Likewise, I am of the considered view that the District Court did not address itself to the issues raised by the Appellants in their respective Memorandum of Appeal.

3. The two appeals were consolidated before this Court, and rightly so, as they concern the same parties and same subject matter.

4. Having perused through the proceedings at the trial court, it is evident that there was no sufficient evidence, given in support of the robbery with violence. There is no evidence to prove the violence used immediately before or immediately affer the· taking away of the alleged sum of Shs. 160,000/=. The evidence is also scanty as to the real amount of ~oney all~gedly stolen. 3 5. It is a well settled principle of law that in criminal trials, the liability of an accused must be proved beyond all reasonable doubts. There is no dearth of authorities on this subject. That seems not to be the position in this case. Therefore this appeal succeeds. The convictions are quashed and the prison ~entence of 15 years meted on each of the Appellants is set aside. Unless. they are otherwise lawfully held, both Appellants be set free forthwith. Date: 2/4/2007 Coram: S. J. Bwana, J. For the Appellants: Present in per-son. · For the Respondent: Ms. Sarakikya - State Attorney. 2/4/2007 SJB/jn. _) M t' 1

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT ARUSHA CIVIL CASE NO. 10 OF 2005 ANNA TABARO RWEYEMAMU ............................................... PLAINTIFF

VERSUS 1. KILIMANJARO GAME TRAILS LTD 2. KHALID MBARAK 3. EPHRAIM DEMEKSA ••••••••••••••••••••••••••••••.••••••••••••••••••••• DEFENDANTS )UDGMENT LUANDA, J. The above named plaintiff claims against the defendants jointly and severally for the following reliefs:- i) An order in specific performance to allot actually 25 shares purported to been allotted to the plaintiff but not allotted. ii) An order for payment by the defendants to the plaintiff of all sums found to be due from the defendants to the plaintiff on the taking of the account of all profits from 1999 todate. ~~~~~~- 2 ---~I •· ;r iii) Interest on the decretal amount at court rate from the date of judgment till fullment; and iv) Any other or further relief as may be found fit and just by this court. In this case Mr.Sang'ka advocated for the plaintiff; the 1st defendant was represented by its corporation secretary one Mr. De Souza Junior, Mr. De Souza Senior learned counsel represented the 2nd defendant and Mr., Merinyo learned advocate represented the 3rd defendant. It is not out of place to ·mention that at first this case was handled by Kimaro, J. (as she was then was). She took and_ heard the entire evidence on the plaintiff's case. Following her elevation to the Court of Appeal of Tanzania, she was unable to conclude the · matter. In terms of O.XVIII r.10 (1) of the Civil Procedure Code, Cap 33, the case was

assigned to me. I heard the defence case and received written submissions presented by learned counsel, save Mr. Merinyo. ' ' ' In this case the plaintiff called five witnesses; whereas the 3 · defendants' side called a total of six witnesses. As usual before the commencement of trial, eight issues were framed. The undisputed facts in this case are to the foflowing effect:- . That the 1st defendant is a limi_ted liability company incorporated in Tanzania on 9th April, 1997 as per certificate of incorporation (Exht D4). The initial capital of the company was Tsh. 1,000,000/= which were divide into 100 shares of 10,000/= each. And the first shareholders who were also directors were the 2nd defendant and 3rd defendant who took 60 shares and 40 shares respectively· as evidenced by Exht D15. The company among other things; runs a business of tourist hunting in Tanzania. In conducting the aforesaid business, the 1st defendant would have to acquire hunting blocks from Game Reserve Areas. The hunting blocks are allocated on an application to the Games Department of the Ministry of Natural Resources and Tourism. It is the plaintiff's case that she knows the 2nd defendant and 3rd defendant very well. She knew the 3rd defendant since 1993. In actual fact she said he is her friend and the two are running a . restaurant together since 1995 todate. She came to know the 2nd defendant through

Mr. Mahatane. It is the evidence of the plaintiff that the 2nd defendant requested the 3rd defendant and plaintiff to join him in the hunting business. At first the plaintiff was not interested. The 2nd and 3rd defendant started by signing a memorandum,. presumably she was referring to the establishment of the company (1st defendant). Be that as it may, the 2nd and 3rd defendant could not get a hunting . block for almost two years. Meanwhile, the 2nd defendant keep on persisting the plaintiff to join the hunting business. At long last, the plaintiff gave in. She however gave condition that she be allotted 50 shares and that she should be free to divide her shares as she wishes. At the end of the day she was allotted 25 shares. A certificate .of shares . was given to her (Exh PI). The certificate . was ' - signed by the 2nd and 3rd defendants the directors of 1st defendant. 5 The three then jointly wrote several letters including (Exh P2) to the Director of Wildlife applying for hunting blocks. Their efforts paid dividend as they were allocated a hunting block known as Brurigi in Biharamulo District. The 2nd defendant expressed his dissatisfaction because the area was depleted by refugees; It was dangerous area. The 2nd defendant told his colleague that he was not prepared to risk . his life. Efforts were made to get another hunting block. The plaintiff claimed to have

introduced the 2nd defendant to several Government Officials in the Ministry of Natural Resources and Tourism with a view to getting blocks. She also claimed she made a follow ups. They were given another hunting block Ituru. The 2nd defendant said that that area· was more dangerous thart the previous one-Burigi. He told her he was not prepared to accept it. The 2nd defendant then told them that as the situation was not suitable, it is better the company be wound up. He gave them blank documents and requested them to sign. The plaintiff signed two documents; which documents were later tendered in court by the defence as Exh Dll and Exht D 12 (minute of the Board of Director of the 1st defendant dated 11th July, 2001 and a transfer of share). It was at 6-------"~, that juncture, she saw the need to contact a lawyer. She saw one Mr. Mpaya Kamara. She explained him the story. She was advised that the books of accounts should be audited by a qualified person. On hearing that the 2nd defendant was not happy. He decided to convene a meeting. Indeed, the meeting was convened. In that board meeting, the 2nd defendant brought with him some documents. The plaintiff and the 3rd defendant rejected the documents. After a week or so the plaintiff received a message from a company called Business Consultants Associate Services that she collects the accounts for the 1st defendant. The

plaintiff went to the said company where she met David Ntambo (PW 5). She was given a copy of accounts of the 1st defendant for 2002 and that she should _pay Tshs. 200,000/= as fees (Exht P3). As to how the said company was involved in auditing the 1st defendant's accounts, Mr. David Ntambo (PWS) said they were appointed by the 1st defendant through a letter ( Exht P9) signed by the 2nd defendant. And why they sent the copy to the plaintiff, Mr. 7 Ntambo (PWS) said they were told to do so by the 2nd defendant. · And the 2nd defendant gave them the telephone number of the plaintiff. The accounts report was tendered in court as (Exht PlO). However it is the plaintiff's evidence that they never had a Board of ·. Directors' meeting which appointed the aforesaid company to do the auditing. On going through the report she did not see the name of the 3rd defendant as the director. She informed the 3rd defendant. The 3rd defendant took no step. The plaintiff was not satisfied with that state of affairs. She saw Mr. Erick Ng'amariyo-advocate. Mr. Erick Ng'amariyo (PW3) confirmed to have been approached by ·the .plaintiff for legal advice. He wrote a letter of 23/4/2003 (Exht PW4) to the 2nd defendant, expressing the plaintiff dissatisfaction with the way the company was managed eg. usurping the powers of the Board of Directors. He suggested a meeting with hini and other shareholders

which he agreed. The meeting was convened on 16th May, 2003 (Exht PW6). In attendance were the plaintiff, · the 2nd defendant, 3rd defendant and Mr. Erick (PW3) himself. In that meeting· it was shown inter alia, the share structure as follows:- i) The plaintiff 25% - shares ii) The 3rd defendant - 25% shares . iii) The 2nd defendant - 50% shares. It was also agreed: a) The profit and loss of the company will be equally shared by the three shareholders above, strictly subject to verification. Following that meeting, on 7/6/2003 Mr. Erick (PW 7) wrote a letter to Mr. Felician Mahatane advocate for the 1st defendant about the appointment of Ms.Frida Mwijage to conduct the verification exercise. By his letter of 19/6/2003 (Exht PS), Mr. Mahatane did not object. ···· ·· The book of accounts were verified by the said Ms. Frida Mwijage a Certified Public Accountant (CPA). Ms.Mwijage (PW 4) explained how she verified the accounts of the 1st defendant for 2001 and 2002. She informed the court that she encountered a lot of hurdles. She was not accorded corporation when doi_ng the exercise. However, she managed to verify the accounts. She said, for example, she had 9 to rely on the 2003 brochure instead of the safari fees and hunting contracts which she got from other source and which had almost similar rate for 2001 and 2002. On going through the accounts, she discovered a number of

irregularities. For example, the expenditures were not supported by receipts, or cash sale. She was of the firm view that the figures do not reflect the true and,ifair financial position of the company. All in all she said the company got profit. She tendered her- report as exhibit (Exht P: 10). That is the plaintiff's case. As earlier stated, the -~defence side called six witnesses. The first one to testify was Naeli Shani (DWI) an Assistant Registrar with the Business Registrations and Licensing Agently (herein-after referred to as BRELA). He is a lawyer by profession. DWI confirmed the following: First, the 1st defendant was incorporated on 9th April, 1997. Second, the initial shareholders were th~ 2nd defendant and 3rd defendant with 60 shares and 40 shares respectively. Third, the initial capital of the 1st defendant is Tshs. 1,000,000/= divided into 100 shares of Tsh. 10,000/= each. It is however, his evidence in chief that on 15th April,- 2003 the 3rd defendant surrendered his 40 shares in favour of Najma Khalid, the wife of the 2nd defendant. The transfer of those shares were duly sanctioned by his office. So, the 3rd defendant is no lqnger a shareholder of the 1st defendant. As to the plaintiff he told the court that she has never being a shareholder_ of· the 1st defendant. He admitted to have received a letter from Mr. Erick Ng'imaryo dated 4th July, 2003 (Exht D2A)

which complained the manner in which the 40 shares were transferred to Najma Khalid. He informed the court that he was the one who made a reply to that letter by their letter of 18th - July,2003- (Exht D1). Beside?, he also told the court to have seen minutes of the meeting of the 1st defendant held _ on 15th April, whereby among others it was annexed with a transfer of share (Exht D3). ' 11- When cross examined by Mr. Sang'ka as to whether there was any attempt to transfer the 25 shares in favour of the plaintiff as shown in (Exht D2B) he answered positively. As regards the allotment of shares to the plaintiff on 28th October, 1999 he said he was of the opinion that the same was done under a common mistake. On the otherhand, Khalid Mbarak (DW2) informed the , court,that he knows the 3rd and the plaintiff very well. He and the 3rd defendant established the 1st defendant. At the time he testified, he was the Managing Director of the 1st defendant. He confirmed the plaintiff evidence to the effect . that they . were allocated Burigi and .. Ituru hunting blocks which were not suitable. They requested the Ministry of Natural Resources and Tourism to allocate them other hunting blocks. The said ministry through their letter of 5th September, 2001 which was faxed and received by the 1st defendant promised to re-allocate another hunting block if one falls vacant. The fax letter when

tendered in court was objected on the ground that it ' -- is a copy. With due respect to that assertion that cannot be correct - to our present world of technology. This is because the process of transmitting any content by is fax totamount to sending the original record to the recipient. So it is incorrect to treat the letter as a copy and therefore a seconday evidence. The letter tendered which was not objected by the 1st defendant was accepted and marked as (Exht D7). Turning to the plaintiff, DW2 said the plaintiff was the one who approached them as a potential investor. And he went further that the plaintiff was to invest heavily. As regards allotment of 25 shares, DW2 said she was not given because she failed to contribute. He however, tendered minutes of meeting of Board of the 1st defendant of 11/7/2001 whereby the plaintiff is said to have surrendered her 25 shares (Exht D11) and signed a transfer form (Exht D12). In short he denied the plaintiff's story and prayed her claim be dismissed with costs. ' Ephraim Demeska (DW3) confirmed the plaintiff's evidence that 13 they are friends and that he was a shareholder of the 1st defendant. As to how the plaintiff joined the 1st defendant; at first he said he cannot recall whether she joined on her own or he approached her. Later however, he said he is the one who persuaded her to join the 1st defendant. And the shares were

re-allotted accordingly namely he and the plaintiff each· took 25 and the 2nd defendant took 50. He recognized the share certificate (Exht PI}, which was ~igned by him and the 2nd defendant._ As to whether the plaintiff and himself paid for those shares; first he said they did not pay. Not long after saying so, he changed version and said he paid for his shares. DW3 went on to inform the court that after the meeting of 11th July, 2001 he and the plaintiff decided to surrender their shares. Later, it transpired that in law he was still a shareholder of the 1st defendant. He also found the plaintiff was actively engaged in running the affairs of the 1st defendant. It was until in April, 2003 when he sold his 40 shares to Najma when he ceased to be a shareholder. When cross-examined by Mr. Sang'ka, about the allotment of shares to the plaintiff and the exactly date he ceased to be a shareholder as evidence by (Exht D2 C) and (Exht D3) DW3 did not dispute the contents of the aforementioned documents. Then Dick Juga Mabuba· (DW4) an accountant cum auditor with Kawiche and Company Certified Public Accountancy and Public Practice gave his evidence. His evidence is centered on the propriety of (Exht PB) prepared by Ms. Frida Mwijage (PW4) which he saw when reviewing the previous report for the 1st defendant, their client. First, he said that you verify books of accounts and not

financial statements. So, according to him what Ms. Frida Mwijage (PW4) had done is not correct. Second, he said a brochure is not a source document of accounts, it is a merely an advertisement document. Like in the previous position, Ms. Frida Mwijage (PW4) was wrong in relying on that document. And lastly, he said the statement does not show expenses incurred by the 1st defendant. ' 15 On completion giving evidence Mr. Sang'ka took the witness to task. And one of the nagging question asked was whether in view of his qualification, a NBAA holder, he is allowed to sign any auditing ·accounts of any company. The reply was in negative. It is the response to that question which made Mr. De Souza, senior to call another witness one Mr. Helgod Christopher Kawiche (DW6) a Fellow of the Tanzania Association of Certified Public Accountancy in Tanzania. DW6 gave similar story as that given by Mabuba (DW4). He however, added that accounting documents are i_nvoices, cash receipts and payment vouchers. Last but not least is Mashaka Yasini (DWS) a tracker with the 1st defendant since 2001 and stationed at Burigi. He informed the . court that hunting in the area in 2001 and 2002 was not successful due to a number of reasons. Among the reasons advanced are poachers, refugees and bad roads. He went on to tell the court that for those two years, they managed to get one tourist hunter.

When cross examined by Mr. Sang'ka, as to whether he came to testify that the 1st defendant did not make any profit, he answered positively. In short that is the defence case. As earlier started, before the commencement of hearing eight issues were framed the issue are:- 1. Whether the 2nd and 3rd defendants invited the plaintiff as alleged by her into the membership of the 1st defendant or .as alleged by the defendants whether the plaintiff invited herself to invest in the 1st defendant.

2. Whether as particularly alleged by the 3rd defendant · the plaintiff fraudulently acquired allotment of shares.

3. Whether · there was condition precedent that . upon allotting the 25 shares to the plaintiff by the defendants the plaintiff was obliged to immediately pay for the said shares.

4. Whether the plaintiff as a shareholder is entitled to profits from 1st defendant ' 5. Whether the plaintiff suffered loss and if so how 17 much 6. Whether the use of influence by the plaintiff was a pre-condition for investment in the 1st defendant's company 7. Whether the plaintiff had surrendered the shares back to the.,company.

8. To what reliefs are the parties are entitled. I will go straight to the issues. In their joint final submissions, Mr. De Douza, Junior and Mr. De Souza, senior"for the 1st and 2nd defendant respectively submitted that the 1st and 2nd issues should be answered in the negative that the plaintiff presented herself to be a potential investor of which she failed to pay. Mr. Sang'ka- on the otherhand urged the court to find that it were the 1st and 2nd defendant who . invited the plaintiff. I have carefully read the evidence of the plaintiff. Basically, her evidence in respect of these issues is to the effect that it were the 2nd and the 3rd defendant who persuaded her to join the 1st defendant. And it was the 2nd defendant who followed her. This is what she said, I quote; "I have not gone to the company and requested to invest in the company. It was Mr. Khalid who followed me. I know very little about hunting business. I was given share certificate by the company". This piece of evidence was not challenged at all. If indeed it was the plaintiff who intended to invest in the 1st defendant, I don't think the defendants would have kept quiet to that version. ·'Tam satisfied and I accordingly hold that the 2nd and 3rd defendants invited the plaintiff ,, to join the 1st defendant and allotted shares to her. As . regards the 2nd issue,- the plaintiff to have fraudulently acquired

shares as alleged by the 3rd defendant the plaintiff informed the court that she was allotted 25 shares and she was given a share certificate. The same was given to her by the 2nd defendant. Like the first issue, this piece of evidence was not challenged either. In actual fact the 3rd defendant when asked by Mr. Sang ka about the 1 ' 19 question of fraud, he categorically denied the plaintiff to have obtained the shares fraudulently as alleged in paragraph (1) 7(b)( c ) of his written statement of defence and disassociate himself with that paragraph. So, no fraud was ever committed to obtain the shares. ·I answer issue No. 2 in the negative. , Next is issue No.3. It was submitted on behalf of the 1st and 2nd defendants that upon allotment of shares, the plaintiff was , :c,c, required to pay and not gain an unfair pecuniary advantage using illegal influence. On his part Ms. Sang'ka submitted that this issue is linked to issue No. 2 and it ought to be resolved in favour of his client. The available evidence on record does not show expressly or impliedly as to the conditions. attached when allotment of shares was done. In any case if that is the position, I think it was the duty of the 1st defendant through its directors to inform and request the plaintiff to pay, which I am sure she would pay. I am saying so because, if the plaintiff managed to pay sh. 200,000/= as fees

for -~--20~-~ audit and accountancy in respect of the 1st defendant for 2000 (Exht P3) at a short notice,_ she would have not failed to pay for the 25 shares which is Tshs. (10,000 x 25) = 250,000/=. Further, the defendants indicated in the share .certificate (Exht Pl) the plaintiff to have fully paid for the shares! There is no explanation at all from the defendants as to why they did that, if at all she did not pay. The defendant are the ones who know better why they did that that the plaintif did not pay and yet indicated she paid. But under. the doctrine of estoppel the defendants ought not to have denied the plaintiff to have not paid for the shares in view of share certificate (Exht Pl). The Osborn's Concise Law Dictionary, Sixth Edition defines estoppel thus:- The rule of evidence or doctrine of law which precludes "a person from denying the truth of some statement formerly made by him, or the existence of facts which he has by words or conduct led others to believe in. Be that as it may, since there was no condition attached at the time· of allotment of shares, the plaintiff was not obliged to pay her shares , . 21 immediately, if she really did not pay. So, the 3rd issue is answered in the negative. Having read the remaining issues very carefully, I found out that it is appropriate to discuss them in the following order; I will discuss issue No. 6 then issues No. 4 and 7 together. Lastly I will discuss issues No. 5 and 8 together. Issue No.

6. It has been argued on behalf of the 1st and 2nd defendants that the influence of the plaintiff in acquiring hunting blocks in the first place _is an illegal consideration. In any case the plaintiff had to prove that she paid for the shares. Responding, Mr. Sang'ka submitted that the plaintiff used her influence to secure the hunting blocks. For instance, he said the plaintiff saw one Costa Mlay, the Chairman then of the allocating committee of the hunting blocks. _ I have given a deep thought to the matter. I was unable to see any evidence, direct or circumstantial which shows that the allocation of Burugi and Ituru hunting blocks were the result of the plaintiff's influence neither is it shown the use of the influence of the plaintiff was a pre-condition for an investment in the 1st defendant company. What is in evidence is that the plaintiff actively participated in securing the aforementioned hunting blocks. A case in point is a joint letter (Exht P2). signed by the plaintiff 2 nd and 3rd defendant. So, I answer-this issue in the negative. I now move to issues No. 4 and 7. It has been submitted on behalf of the ls and 2nd defendant that the plaintiff is not a member of the 1st nor-had she ever been. Even if it is assumed the plaintiff was a shareholder, she had surrendered her shares to the company as evidenced by Exht D11 and Exht D12 thus waiving all existing

and impending rights. ,..,;•., Reacting, Mr. Sang'ka for the plaintiff submitted that the defendants contradicted themselves. At time they said they allotted the shares in good faith and demanded the plaintiff to pay for them. , . ' 23 They cannot deny at this stage that the plaintiff was not the shareholder and member of the 1st defendant. In their joint ·written ·statement of defence, the 1st and 2nd defendants admitted to allot shares to the plaintiff. This is found under paragraph 6 ( c). It reads:- 6 ( C ) Para 7(b) is admitted, in that, the allotment of shares were done. in good faith subject to the condition precedent that the plaintiff's should pay for the shares so allotted. We have already resolved that payment of shares allotted was not condition precedent for the plaintiff in joining the 1st defendant. But were there any shares capable of being allotted? By its Board meeting of 28 th October, 1999 (Exht D2 c), the members of the Board resolved to re-allotted the shares as follows:- !. Ephraim B. Demeska (3 rd defendant) - 25 shares 2. Khalid Mubarak (2 nd defendant) - 50 shares ----------~-24--~ .

3. Anna Tabaro Rweyemamu (plaintiff) - 25 shares Not only that it was also resolved as follows, I reproduce. FURTHER THAT the secretary be directed forthwith to file with the Registrar of companies return of the shares allotted by this Resolution in the form prescribed by the Registrar. Indeed, the resolution was dispatched to the Registrar of companies along with (Exht D2 B- return of allotment of shares: and share certificate (Exht Pl). But the Registrar did not make a reply. It was after he received a letter from Mr. Eric Ng'omaryo (PW3) when he replied that the re- allotment was done under common mistake. And by then the shareholders were Khalid Mbarak - 60 shares and Najma Khalid 40 shares. I think the intention of the parties namely the 2nd and 3rd defendants as to re allotment of shares to the plaintiff ought to have been respected. It was the duty of the Registrar of companies to 25 direct the parties how they should go about in transferring the shares as agreed by the parties and thereafter re-allotted to the plaintiff instead of keeping mum. Since that was not done I am of the settled view that, the plaintiff who was all along under the impression and believe that she is a member of the 1st defendant, is entitled to those shares re-allotted to her on 28/10/1999. It is argued in the alternative in favour of the defendants' that the plaintiff at a later stage

surrendered those shares. If we accept this version, then it goes without saying that the plaintiff was a shareholder. The question now is did the plaintiff surrendered her shares. It is the defendant's case that the plaintiff surrendered her shares on 11/7/2001 following the Board meeting conducted on that day. But the plaintiff took an active role even after she surrendered her shares, if she really surrendered and the 1st defendant through the 2nd defendant communicated with her on a number of issues concerning the 1st defendant. The plaintiff for instance paid ..... --~-~~~~--~~~--~26~-~ , ·• Tsh.200,000/= as audit and accountancy fees as evidenced by (Exht P3) of 8/4/2003. The 2nd defendant wrote a letter (Exht D14 of 6/6/2003) to the plaintiff requesting her to pay her contributions for the hunting season 2003. And to crown it all when Mr. Eric Ngu'maryo ( PW3) convened a meeting on 15/5/2003 (Exht P6) the 2nd defendant did not inform the meeting that the plaintiff is no longer with the 1st defendant. In view of the above circumstances, therefore it is becoming increasingly clear that the plaintiff is still a shareholder; she has never surrendered her shares. · Since the plaintiff is still a shareholder, it follows as day follows _night that she is entitled to whatever is available by virtue of being a member of the 1st defendant. Last but not least are issues 5 and 8. As regards issue No 5 it was argued for the 1st and 2nd defendants that the plaintiff failed to prove how she suffered loss; and so, no losses were suffered. Mr. Sang'ka on the other hand appears to fuse this issue with issue No. 8 by referring the court to the prayers his client has made in her plaint. . i I -♦ <;/,I I . 27 With due respect that falls under issue No.

8. However, having perused the record, I found out that there is no evidence adduced iri respect of issue No.5. I accordingly answer this issue in the negative. Having resolved that the plaintiff is a shareholder and still a member of the 1st defendant, she is entitled to the following reliefs. One, as the purported 25 shares were not legally allotted, I hereby order that the same be allotted to her as resolved by the Board meeting of 28/10/1999. The second prayer namely payment of the sum of money due from the defendants to the plaintiff is not without difficult. It is difficult because there is no input from the parties; save the verification report~ It is the defendants' case that the 1st defendant did not make any profit after getting the hunting blocks. That was the version of Mashaka Yasini (DWS) a tracker. One wonders whether this witness was competent to testify on that espect. But Frida Mwijage (PW4) who verified the book of accounts of the 1st defendant found out that the 1st defendant got 13rofit. Frida ( PW4) took pain to go through 28 the book of accounts and wrote a report (Exht PS). The report gives at a least a picture of the.1 st defendant financial accounts. And Frida (Pw4) categorically stated that the statement do not fairly disclose a true and fair financial position for the two years 2001-2002. This. is because the defendants did not provide her with the

relevant books or materials to' enable her verify. They were not cooperative. I have gone through it, the report as earlier stated give a picture of the financial position of the 1st defendant. · In absence of any other document, I think it is quite proper to rely on s·uch report. The 1st defendant got profit. Otherwise it would have not continued with that business todate. According to the report for two years, the 1st defendant got as follows:- YEAR Reported Unreported Income Income 2001 21,108,600.00 162,401,400.00 2002 21,933,600.00 206,493,900.00 TOTAL 43,042,200.00 368,895,300.00. 29 For two years the 1st defendant got 411,937,500/ = However the report is silent as to expenditure. Of course the 1st defendant must have spent some mon~y. I gave the matter a deep though. I think Tsh. 211,937,500/= as expenditure is reasonable, under the circumstances. So we remain with 200,000,000/=. This amount should be taken as profit for two years. This means 100,000,000/= for each year. We divide 100,000,000/= according to the shares. The 2nd defendant 50; 3rd defendant 25 and plaintiff' 25. So the plaintiff is entitled to Tsh.25, 000,000/= for a year. For those two years, I award her Tsh 50,000,000/=. However, there is no evidence as how much the 1st defendant got as 'for the year 2003 to date. Since the plaintiff did not actively engaged in running the 1st defendant affairs, I.think

Tsh. 10,000,000/= per year as the plaintiff's dividend is reasonable. For six years (2003-2008) is Tsh.10, 000,000 x 6 = 60,000,000/=. In total I ward her Tsh 110,000,000/=. The 30 said amount will attract an interest at the court rate from the date of judgment till final payment. All in all judgment is hereby entered against the defendant jointly and severally as indicated above with costs. · B. M. LUANDA

JUDGE 13/11/2008 Order: I order the Registrar . of the High Court (Commercial Division) , to deliver the Judgment to the parties on an early convenient date. B. M. LUANDA

JUDGE 13/11/2008 \