20060629 TZCA Dar es Salaam 1

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POUJtCT J pUt? 9ttt0T1CIJt JOJ pT?1tt?O(kt '9OtOOApt? pou.xuo - °f°T4 out t?1n9W oq1r J GO 0JOJj pOtOJ UOtStOop ou otq Oj. .Xfl03 GTtfl Oq. ptTctc1t 0At4 put uoitrttrp IOU pnoo $qm20tcTdt oq punctxo oq pr.00 sotttcT put SpXoM ut?.&Oox.xt. TItt1.XOO 09 Tio- rITjid OJO .utupuowe poJopo PU UOi;to OL Jo t1 ino OnJG '(uoiooCqo To punoa.9 otto uo OXO) zotooqo 9t PrYtflJXOAO IflOc) UOT 0T otitc[ Otfl. JOJ. T0$U003 ToI $UOtUrIJIt - -3- •1 WHEO1UJ petitioners pray for judpont and decree against the first and second respondent as follows : A declaration that the petitioners are lawful mccbcrs and directors of the second respondent company. A declarabion. that all decisions made as reerds the affairs of the second respondent 'iithout the participation and approval of flee petitioners at the respective levels are null and void. (c). In alternetive to prayer (c) (sic) above for an order that an inspector be appointed to make a proper valuation arid aecounts of the second respondent uiom 1997 with a view of paying the petitione:.n their sarhet value (sic) of their shares held. (d) Costs of the petition, (o) Any other or further reliefs the COunt clay de;m just to grant. 1 The prolunilnary objectioae which bhe applicants raised in the Higle Court., as far as can be imouri from th hulin of the HiLih Court, were 1 '(a) The Applicantsctitioners have no locus to initiate these proceedings because they are neither shareholders nor directors of the secona iespondont. t ii 1S Lf The Petition does not disclose any cauo of action against the ;..espondents jointly or sing'y. The prayer for Winding up and appointment of inspector is being made in bad faith and is in any case in contravention ol the provisions of the Companies Ordinance, and: Companies (Winding up) Rules, 1 929. The Petition is a disguised employment causc. In answering those grounds the High Court first considered whether the proceedings bôiore it were really a petition for the winding up of 'U2TINGR,;'1 Contractors Linitod, as contended. by the applicants (then objectors/respondents) and disputed by the responcheits (then ptiticncrs). The court said in effect that in order to 1;riow the nature of the case before it ewe have to confine ourselves to the prayers paragraph which clearly does not refer to the winding up of the 2nd respondent . According to the High Court, the other paragraphs n tiie petition were more background information. Therefore, the High Co'irt anid, although the heading of the petition said that the matter before the court was for winding up of Taningra Contractors Ltd. and paragraph 5 of tee petition sought an order for - winding up - of the company awinding was not one of the reliefs sought and, therefore, tho petition was not in reality for winding up. The use of the p1iraee winding upe was mere careless, if not reckless, drafting ci tlhu petition; a hefect 4! •' P 1.0. 9, OA I314 p1tlOO J)J "4T ?JXtt Joj1 tX35 •JflOOUC yE tttj; t;oq tXOtt1(1 Oq4 OUOUIU 40TI ptp 9O)O ;o ITtk Jq pqiuod oq pnoo Scq4 Lpitjm xoj 'GseUG OJO JOOtG 9T yE yEflOO WOJ trroE oxoi Jeq GqO.X M14 jo ouo '' dn 5ju- IT)U -Em peuopuq pit GUpUOcIGOX )t OOLrtc *dn 9 TxEpuvA OPnTOLII O.OtI pip qotq GJCtTOX ioj polqq00 p1m. ornoop-taz. 7 po3uqo q.nq ucIwoo uoi1d puO9 OyE TO Clil 3utputi e rjJj "PT uotyq.od o4 popuoirt tui uopuodie.x oq 'tn?dwoo qtxtoidd pUOO oqq. cmn Jriputt JOT ;ou 9UM yt )JOJ uoiq.tyd oq. 'ooj;o tr yEflO tH auq JO aoirEoop oqq. tTM GOA[egJflO OtY1OOSS1. 0. Lit 1 LTEM OM Uoir2AJc9qo OA0q1 OL14 9UTArH • 9UtpOId oqq wo.z; uotuoi.tzt -LpTmqqjnpun ol qoxcidt idoxcm eqq UO JOLflLi PT @qq tflTM quowojOr Ut 'OOdGOJ qqTm OJt oM u'0104M SO UO)p. GUtpUYECi StL JO 9WJO pU? JOtXO OU WOJJ TEfl2UIcJcm POJOWC2 eq oq. St POUJCOUOO Xt2I oq4 JO uoiq.ueq.trt Ot '.xodUt enxq. 1ieL utiieoo o ' - ot t p'3eJ eq 49tLiU JOLjq. 4vqq St GJUtpLiOTcI OU4 uipUJ jo poqotu ;OOJJOO OJ °° pO9tLiUUyILithUOO eq ;ouuto yEnS t trt supveTd 1.4TH, etd II CWfl1Of 1966 'ttoTp tfl.UeOyETj 'o6i JO A 4 01 LTHIC19DO&I1 rIJAID O taOD flL MO 1.'1T1nW U Pt S1-J 0 l.JflOO 9t oJo)0q .XOJ tM 1104 oi J3JO UT OTOqm r st PJOpiSUoO eq IJ,.StILU u1PTd JO OTOtM eq •txOiywJoj:Ut PUflOJ3O OJOW • OJt Jcm OtOJ OI UIOJJ JdLi 'utpied i .XOtflO qcqZ itS O. OSIflOO JO 4 looijoo OyEtlb 4ou s-r rt - - - ft In Daragraph 6 (iv) of the affidavit in support of the notice of motion the applicants state:. (iv) Having conceded the defects raised and having not applied for amendment on withdrawal of the petition, the lcrncd judge erred (in the circumstances of this matter) to order amendments of the petition sue motto (sic) becaue it is not clear or certain what remains in Court (a plaint or petition) . once We assume the applicants are saying that Z it was conceded that the petition was defective to the extent noted by the court it was incumbent on the respondents to either apply to amend it or withdraw it and not for the court to order suo mottt for the amendment of the petition to rectify the defects. However, we do not think that this is tenable because once the prelinnary objedti4s were raised and a hearing commenced we do not think it would be proper for the respondents at that stage to ask to amend the petit ion, or oven to withdraw it • To do so would be tantamount to pre.ompting the prelisinary objections0 But the court having concluded that the defects were insubstantial and that amendment of the petition by omitting the unnecessary words or phramcs would not cause any injustice to the applicants, could make the order suo motu for the amendment of the petition. We would agree with the applicants however, that since the reliefs now being sought do not necessarily proceed from a petition and are ordinarily obtainable in a suit, it is questionable if the matter in the High Court can -6 - applied to the High Court toomond it before th error was pointed out by the applicants. The applicants take issue with the High Court for holding that the du±ct in the petition did not go to the root of the claims We agree with the High Court that the defect in the petition did not go to the root of the claim. Once it is construed of the petition, as we do, that what appears on the fce of it to be a clim for winding up was abandoned so that no such relief was prayed for, the applicants contention can no longer be sustainable. It is pertinent to remember that in construing a pleading one must have regard to the allegations of fact in the body of the pleadings as well as the reliefs asked, so that the substance, rather than the form, is given due weiht and donsideration. In the case at hand the substance of the petition, when considered as a whole, is that winding up was not in fact what the petitioner eventually needed. So, the learned judge erred in his rather dogmatic statement that in order to determine what relief is being claimed by a person who brings an action in court we have to look just at the prayers' paragraph". This is misleading. Somctimos the reliefs section of a pleading may fail to state clearly and satisfactorily what the body of the pleadings alleges and is proved by the evidence that is adduced. In other circnstances and an shown in Mulla (supra) at pages 1223 and 122-F the learned author says that whore a rlif is claimed upon a specific ground, the court may grant it upon a ground different from that on which it is claimed in the plaint, if the ground is disclosed by the allegation in the plaint and the evidence in the case. •-8. With due respect, the learned counsel should appriciate iat the t -bement was made by a person who was fighting for 1ie t the dying time. It is not easy for eye witnesses to crame each and every voice whichas made under human weakness at that hour. The larrd counsel also submitted that the - c ton shouLd he looLked at with caution as it was held by Justice Makame in, Afilt Mwambongo V H (1984) TLR 240-. g- .Thrd counsel should note that, his lordship was dealing with a dy±ng declaration which was made repeatedly by the decea sed that is why he held that: The deceeseds persistence in implicating the appellant was a mere evidence of consistency and honesty but not of cor±sectness0u That should be distinguished from the evidence in the present case because in this case the statement is said to have been heard by several witnesses but it was made only once by the deceased The issue i therefore that the statement was heaid by several persons and have all testified on similar grounds as such one eannot question of the its truth, Mr0 Nbogoro learned counsel IV rrey directed the court to look into the matter in the a1ternaive. That is, basing on the prosecution evitence, it has been established sufficiently of the existence of a fight between the deceased and the 1st accused prior to the offence. According to PW,I, P0W6II, P.WIII and IV that was the source of the problem which resulted into the death of the deceased. It was undisputed that the 1st accused and his brothers chased the deceased to the thicket and soon after the deceased was seen seriously injured unable to support himself. Also that he stated prior to his death that, it was those people who were seen chasing him that had beaten him to that state. Those mentioned by the witnesses and in the cautioned statement which make part of the - prose tion evi'iaxic, are 1t accused, 4th accused and 6th accused It should be noted that there were serious of events befor€ the offence was committed and those events clear out any possible mistake to the identifiôation of the acused by the prosecution witnesses together with the deceased 0 I the±efore agree with the defence counsel's submisgion and the authority theretoA The oae of.Wion Nmhanga V R (1984) TLR340 which held that:- Tt The stabbing by the appellant took place in the heat of possiOn generated by the fight and commotion, although at one point of the fight and dornmotion the appellant told the deceased tLazima ufe leosu that -, saternent by itself is not evidence of prèoditated killing since the statement was made in the course of and during, the fight and, commotion and not before" Likewise in the ease at hand the 1st accused and his accomplic.e were in the heat of passion generated by the fight and commotion 0 Conclusively the learned cunsel cited the decision in the case of Moses Mungasiani Laiza Alias OhichI V R (1994) TLR o 222 That onel take positively for the dase at hand as good authori ty0 That cot held that among other things UWher e death occurs as a result of a fight an accused person should be found guilty of the lesser offence of Manslaughter and not Murder In the case at hand it was clearly put by the prosecution witne sacs that there was a fight prior to the offence0 The 1st accused and his accomplice without shifting the burden of proof to them, had admitted that, 1st accused had some wounds or injuries causEd I -- I - -------- .j., - 10 With th bsrvtios I amisfied that since the deceased. in good health at the village chairman's house t prce That these proceedings were adjoirhbd to the fcllowing morning or day and all parties Thea t. en being chased by accused to hidden area in the thicket, where soon he was foud helpless 0 The gentlen/' oz opiton differred a bit on that the qzt.ersaethor found all six accused guilty of Manslaughter where as the 'end. assessor found only the 1st accused. guilty0 I have taken their opinion with respect and due care but I do not agree with any of the two, My reasoning has ben expressly put in this judgment earlier on that the de&eased's dying declaration mentioned of his assailants0. The four prosecution witnesses testified to the effect that, they saw his assailants chase him to the thicket0 heard. That, soon aftex the deceased has crying helplessly. Also the.'tst accused's cautioned statement together with the extra judiial statement which were admitted as evidence for the proéution. They all implicate those people responsible for the deceased's death0 I therefore come to the conclusion that, it was those accused who were seen chasing the deceased to the thicket who are responsible for his leath. In the event I find the 1st accused, Hamisi Mohamedi, the 4th accused, Omary Mohamecli and 6th accused. Kaisi Bakari guilty of the offence of Manslaughter contrary to section 195 of the Penal Code an.d I accordingly cOnvict them 0 The the 2nd accused Upole Mohamed, 3rd accused Mohamed Mohamed and 5th accused Abdul MohaedI find them not. guilty to the offjce charged .or any other oTence. JTT SuOsaa zc0q4OUe B5tITULI4 oq. t3II TI ou iq suos.ied psnoos qmqns ej - @POD Tsuea eq; Jo,i, uoiqoes Jepun 4U@MUOSTid7mj ejtT Jo flued e seTxrso eoueJJo eq JCJ SUOT40TAUO0IVn0TAejd jo ooe ou si eeq 900?/9/6? 'uei °°s °peuitdxe Ixdde Jo 4iqSTcR IetILo0 eoueJç[ pus euio44i' @;eqS Ct4 Jo eiesed aq4 WE suos1ied pesnoo eqq oq. JCAO P-eDJ ptrs peJpI[[ep quewpn 'T9U5t1sW 0/0 epuedW STIV SITY ° TnV PT uipy t, ;SJoSSeSy .cpoqsn iepun quasejd suosiad p&s!1.oY5 r suos.ied pasno2u xis eq4 ioJ Ta sunocr quesexj iqnde et IoJ uaa &e eiepe9 P pU ticj uis,I0 0 9OOf976 9OO/9/6 Q e pflf °qTMqtOJ eej eq u53 1ce4 [TI PTLT eSIO SSeUfl It1TpI000 uxeq4 47tboe @aojajaq4 i — L4 - cj.uC. .r;tr:t-., •4 The cu&ed were dunJ and they consumed illegal beer known as uGongo . The offence of Manslaughter is rampant to this jurisdi ction 0 I therefore pray for a severe sentence which will be a lesson to accused and public at large, Th e aused were supposed to have adhered to the villag chairmar!s ardaz zftez . ,adjourning the preedings but they hose. to &oritinue with the fight hence they caused death to another0 The accused were several as such they overpowered the deceased and they ought to have known so 4 We therefore, pray for a severe senten "Judge0--. 29/6/2006 Mitjions D/Oouns el 1stacoused I pray for a leniency 9 the accused is 31 years old0 He is the,tst offender, he has a wife and two children0 His father and family depend on him. He has been under custody for 3 years and six months. He is weak healthwise, 4th accused: He is first offender and is 29 years old. HO has a wife who depend on him0 He has been n'ier custody for 3 years and six months as such he has reported bp the offence,';Th offence was 1gre1 by the illegal ber known as 1 Gongo, 6th accused: He is just 21 years old. He is first offender still single0 He has been under custody for 3 years and six months as such he has reported., to the crime I 4J3q PTOLI TTTS I 'so;a; U4TW Bq LItM JOT44@ 90 4 tIOT S f,..auaoqqy D4iq4S peuJeeq eq4 pe.Iepisuoo eASq aq4 oq quedai uieq; et)SULI seq uoTsreouI Jo poç..ied eq. 'eq4 peep tzeq 5tq 41. Imou se JOJ Aposno .iepun ueeq CACT4 Aaqj °seq;oq pooq e,re ioqq puo s.xepuej;o qsrçj eac suosied pesnoo 0 UOT40TjSTallC sq4 epun ueie.eid eq oq suices eotiejjo etJ uo 5 T 'et4BqS eq jo sq.ueuie.inbei tied se eoueues e.IeAes xoj ped sq Aeuor o4 ,e4S peuieerI aqj ° epco TeueI aq4 JO s/o IstreW Jo [çn uieqq. TtflOJ sq rirtoo eq °epo TUU@J acq JO 961.. sfo JOPanH jo P 09XCTOeXM PasnOOP eert4 eqr eue.ues 9OO/6/O Oepflf PUN • S o JETuIeJ BUO tUOtJ eUIOO [[e POSMOP Dqj OO2G4S sttlr 40 q.uei qou eussi eqq. 4eTq4 4T=Lzis I ;nq eçssexe se pesnooe Aq pesn eoxo; eqq. .eq4 pOTuiqflS ose.sq ej 0 TaoI1c Sulaq Ueq4 [OTCS exow si tueIqod aq4 esneoeq sJoeJ tfl4nqpI4uo .ieqqo ete eeq. eAeTqI 'weqoad eq. oq. IeMSUS aq4 qou ST eoua.ues e.xe.es e uTssed qeq4 4TwqnB j nq sqq. 4 citxri ueeq Viaq eet peiwqns ose sq euIov euxeer eq • e oueue sd o UIflU1I)C0UI ST E?tUeS O(j -[ 2 uaj Dq4 ;o uoçoes Jepun eoueues aIeAes ioJ peeict sq SRUJO44V e3 peureer et 1T 0 fl - q b4 [ r[flJtrcuem exoux eq aJOJaxatlq pInoM &cuex& 4tp ouosTJd. uç seucirço exo pat o4 J,, a-SO<LqTP eq TITM eq esneoeq UrEq eqqSqeJ Jo PLaqsul acçq TTod tflo TTIeC SducT V - •1 /•\ 14 N the offence is rampant in this area as observed in other two cases of Similar nature0 Unfortunately the offenders are young men who are mostly needed for the development of this country. The State, at the same time is required to stop and prevent the spread of such behaviour among young men of this Society0 I therefore kgree that there is need to pass a severe sentence will defer further commission whther under the umbrella of social ntters e.cononiic etc. I therefore sentence the 1st accused to jail Imprisonment for a period fire years from today 0 For the 4th accused he is to suffer jail Imprisonment for a period of three years and for the 6th accused jail Impri sonment for 30 mdnths as from today 0 S.S. Kaganda, Judge Right of api.eai to the sentence0 S.S. Kaganda, Judge0 29/6/2006 I certify that this is a true copy of the original. DEAIG0, SSK/ESYO DISTRICT REGISTRARO