halima mohamed mamuya vs morogoro hunting safaris ltd 2011 tzhccomd 2025 1 april 2011

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE No 36 of 2006 HALIMA MOHAMED MAMUYA..................... PLAINTIFF Vs MOROGORO HUNTING SAFARIS LIMITED............DEFENDANTS JUDGMENT Mruma J, The Plaintiff Halima Mohamed Mamuya, instituted this suit against the defendants Morogoro Hunting Safaris Limited praying for a declaration order that she be declared a bona fide director and share holder in the defendant's company. She is also claiming shillings 124, 312, 000.00 being special damages and another shillings 200, 000, 000.00 as general damages. Furthermore the plaintiff wants interests on money claimed as special damages at the rate of 21% per annum from November, 2004 to the date of judgment and payment of interest at the same rate on the claims for general damages from the date of filing the suit to the date of judgment. She is also claiming for the payment of interest at Court's rate from the date of judgment until settlement in full, costs and a traditional prayer of "any other reliefs as the Court may deem fit to grant" It is stated in the plaint and not disputed in the written statement of defence that the plaintiff and two other persons, Mr Jamal Abdullah Suleiman Bin Thabit established a company known as Morogoro Hunting Safaris Company Limited (the defendant herein) in the year 2OO3.The defendant's company was registered on 3rd December, 2003 with its founding members Mr Jamal Abdullah Suleiman Bin i Thabit, Ally Ahmed Saeed and the plaintiff, Halima Mohamed Mamuya being its first directors. According to the plaintiff she was appointed Managing Director of the company with a special assignment of procuring for the company an allocation of a hunting block by exploiting her contacts in the tourist industry. She managed to secure a hunting block at Sasawala in Ruvuma region. To facilitate the exercise, the defendant as a licence holder was required to discharge the following obligations: (a) Pay block fees; (b)Pay tourist agent fees; (c) Camp building in the hunting block (d) Contributing funds to adjoining villages (e) Contributions towards anti-poaching operations and; (f) Development of infrastructure (mainly roads) within the hunting block. It is alleged in the plaint that because the defendant did not make available the funds required to meet its foresaid obligations, the plaintiff to the knowledge of other directors and therefore the defendant's company spent in the excess of Shillings 100, 000,000.00 to pay for the expenses to meet the said legal obligation of the defendant's company. The plaintiff alleges further that on 10th August, 2004 and in a blatant breach of the defendant's Memorandum and Articles of Association, the chairman of the defendant's company Mr Jamal Abdullah Suleiman Bin Thabit called a meeting of the Board of Directors without serving a notice to her despite the fact that she was entitled to get notice and attend the said meeting. It is furthermore alleged in the plaint that in the said meeting a resolution purporting to call upon the share holders to pay a sum equivalent to 75% of nominal value of their shares was passed. It is the plaintiff's contention that the said resolution was a blatant breach of the defendant's company regulations. The plaintiff states that in a subsequent meeting of the defendant's Board of Directors of which no notice was served upon her and in which the chairman was the only director present, the Board of Directors of the defendant's company 2 purported to pass a resolution purporting to forfeit the plaintiff's shares in the company and those of her fellow share holder Mr Ally Ahmed Saeed. It is stated further that in said purported meetings of the Board of Directors of the defendant's company, the chairman sitting as sole director and in the violation of Article 8 of the defendant's Memorandum and Articles of Association purported to transfer to his two sons namely Mr. Mohammed Jamal Abdallah and Mr. Ahmed Jamal Abdallah. The plaintiff states that in violation of Article 5 of the Memorandum and Articles of Association, a General Meeting of the defendant's company was held on 26th November, 2004 at which the chairman was the only member present and "passed" a resolution removing the plaintiff and one Ally Ahmed Saeed from the Board of Directors of the defendant's company and replacing them with his two sons. That following the said removal of the plaintiff from the defendant's company, the officers and agents of the defendant's company wrote an embarrassing and defamatory letter to various government authorities thereby injuring the reputation and personality of the plaintiff in the society and as a Member of Parliament. The plaintiff contends that she had never resigned as director in defendant's company Board of Directors and that she is a bona fide share holder holding 8518 shares in the company. In its written statement of defence, the defendant denied every allegation put forward by the plaintiff and called upon the plaintiff to the strict prove her claims. The defendant denied specifically the appointment of the plaintiff as the Managing Directors of the defendant's company and her being a bona fide share holder of the company. According to the defendant the current shareholders and directors of the defendants' company are Jamal Abdallah Suleiman Thabit, Mohamed Jamal Abdullah and Ahmed Jamal Abdallah. The defendants also dispute the allegation that the plaintiff was appointed and assigned the duty of procuring for the defendant's company an allocation of a hunting block. 3 Furthermore, the defendants dispute to have been allocated the Sasawala Hunting Block through exploitation of the plaintiff's contacts in the tourism industry. It is stated that although the defendants acknowledge the corporate and social duties and obligations required to be discharged by it as a tourist hunting company, but they dispute to have obligations to make available any funds to the plaintiff to meet the defendants company's licence obligations as averred in the amended plaint. It is stated in the amended written statement of defence that at the time of incorporation the authorized share capital of the defendant's company was Shillings 225, 550, 000.00 divided into Twenty Five Thousand Five Hundred and Fifty Five(25, 555), Ordinary Shares worth Shillings 10, 000.00 each. The company issued shares were initially subscribed by Jamal Abdullah Suleiman Bin Thabit who subscribed for 8519 Share, Ally Ahmed Saeed 8518 Shares and Halima Mohammed Mamuya (the plaintiff) who subscribed for 8518 Shares. That the directors managing the affairs of the company and authorized to act on behalf of the company in accordance with the Memorandum an Articles of the company and the relevant laws were; Jamal Abdullah Suleiman Bin Thabit, Ally Ahmed Saeed and Halima Mohamed Mamuya (the plaintiff herein). The defendant further alleges that on 12th February, 2004, the directors of the company convened two meetings both held in Morogoro, one attended by the plaintiff and a co- director Ally Ahmed Saeed and the second attended by all three directors. The first meeting resolved that a bank account for the company be opened with standard chartered bank Tanzania Limited at Par es Salaam, The second meeting resolved that another company bank account be opened with CRDB Bank. The two bank accounts were to be opened for purposes of collection of the deposits made by the subscribers to the shares of the company in respect of making payments of their subscribed shares in order to capitalize the company and enable it to commence its business operations. Jamal Abdullah Suleiman Bin Thabit was appointed and authorized and mandated to operate the said company accounts. 4 That on 18th February, 2004, the defendant opened and started operating a company bank account No 01J1013376500 at the CRDB Bank. It is further stated that the said bank account of the company was opened by Jamal Abdullah Suleiman Bin Thabit with an initial deposit of Shillings 100, 000, 000/=. The defendants avers further that to its knowledge the defendant did not open and operate any other account in its name except the said bank account with CRDB Bank at its Kijitonyama Branch. The defendant states further that on 25th February, 2004, Mr Jamal Abdallah Suleiman Bin Thabit deposited or causes to be deposited into the company's bank account two cheques worth Shillings 50, 000, 000/= each as payment in respect of shares subscribed by him in the defendant's company. It is the defendant's contention that there were no other subscribers to the shares of the company other than Jamal. That following the non-payment of the shares subscribed by other subscribers, on 10th August, 2004 the Board of Directors passed a resolution pursuant to Articles 8, 9, and 10 of Articles of Association of the company, making a call upon the subscribers to make payment of at least 75% of the value of the shares allocated to them. On the same day a notice of call notifying the plaintiff and Ally Mohammed Saeed requiring each of them to pay at least 75% of the value of shares allocated to them was issued. The call notice was served upon each of them on 11th August, 2004 and was valid for thirty days from the call date which time expired on 9th September, 2004. That upon the expiry of the notice period none of the subscribers upon whom the notice was issued and served neither paid for their shares nor responded to the call notice despite being properly served. It is stated further that following the failure of the plaintiff and Ally Mohammed Saeed to pay for their shares, the Board of Directors of the defendant's company invoked the powers conferred upon them under the Articles of Association of the company passed a resolution forfeiting all the shares held by each of them in the company thereby making none of them a subscriber in the company. It is the 5 defendants' contention that thereafter the plaintiff and Ally Ahmed Saeed ceased to be share holders in the company. Following the forfeiture of the plaintiff and Ally Ahmed Saeed's shares, the Board of Directors of the defendants' company under powers conferred to it by the Articles and Memorandum of Association and the Company Act sold the forfeited shares to Mohamed Jamal Abdallah and Ahmed Jamal Abdallah who bought 8518 shares each. At the beginning of the trial twelve issues were framed by the court and agreed upon by the parties as issues in dispute in this matter. The said issues are:- 1. Whether or not the call on the shares requiring the plaintiff and one Ally Saeed Ahmed to pay at least 75% of the shares allocated to them was valid and regular 2. Whether or not the other share holders paid for their shares after the call; 3. Whether or not the defendant's Board of Directors Resolution which forfeited the plaintiff's shares in the company was valid and regular 4. Whether or not the plaintiff is still a bona fide share holder in the defendant's company 5. Whether or not the plaintiff was duly appointed as a Managing Director of the defendant's company 6. Whether or not the defendant's company decision to terminate the plaintiff's directorship in the company was valid and regular. 7. Whether or not the plaintiff was assigned by the defendant's company duty to procure a hunting block for the company 8. Whether or not the plaintiff with knowledge and authority of the defendant's company incurred personal expenses and time to procure and maintain for the defendant's company Sasawala Hunting Block 9. If the answer to issue no 8 above is in the affirmative what is the sum so spent. 10. Whether or not the plaintiff unlawful and without any colour of right interfered with the business affairs of the defendant's company, and if the 6 answer is in the affirmative whether the plaintiff's action amounted to a tress pass. 11. Whether or not the defendant suffered any loss and damages due to plaintiff's action. 12. To what reliefs are the parties entitled. In her bid to prove her case the plaintiff called one witness that is herself and tendered a number of exhibits. In her testimony Halima Mohamed Mamuya testified that she is a Member of Parliament (special seats) representing Arusha Region. Apart from being a Member of Parliament she is also an entrepreneur, a business woman dealing with tourist hunting. Prior to her engagement in business and parliament, she was the Chief Secretary of women wing of CCM (the ruling party). She had also worked with the defunct Tanzania Tourism Corporation before it was dissolved and replaced by the Tanzania Tourism Board in 1993. She remembers that in 2003, together with Jamal Abdullah Suleiman Bin Thabit DW3, and another person she mentioned as Ally Ahmed Saeed they formed a company called Morogoro Hunting Company Limited (hereinafter the J company). The company was incorporated on 3 December, 2003 and she together with Ally Ahmed Saeed was allocated 8518 shares each. Jamal Abdullah Suleiman Bin Thabit was allocated 8519 shares which is one share up. According to this witness she was appointed one of the founding directors of the company. Other directors were Jamal Abdullah Suleiman Bin Thabit and Ally Ahmed Saeed. The plaintiff testified further that on 12th December, 2004 the directors of the company had a meeting in which they passed a resolution which authorized Jamal Abdullah Suleiman Bin Thabit DW3 to be a sole signatory of the company's bank accounts. DW3 was given a duty to look for initial capital (soliciting funds) so that the company could start business and according to the plaintiff (PW1) that was the essence of making him the sole signatory of the company's bank account. She told the court that it is true that DW3 deposited Shillings 100, 000,000/= into the company's account by using two 7 cheques of Shillings 50, 000, 000/= each. She said that the monies were deposited on 25th February, 2004. The witness testified further that all the monies were drawn by DW3 on 26th February, 2004 by using a bankers' cheque. On the same day there were a deposit of Shillings 20, 000/= being commission to the bank. No other transaction took place in respect of the company's account from 28th February, 2004 to the date of this testimony (i.e. 26th August, 2009). It is the evidence of this witness that on 10th August, 2004 when it is alleged by the defendant that all the shareholders were called to pay for their shares, the bank account of the company had a balance of Shillings 5, 307. 53 therefore it cannot be true that other share holders including DW3 had paid for their shares. The witness said that what DW3 did is to deposit Shillings 100, 000, 000. 00 for purpose of getting a bank statement which would show that the company had a hard cash of Shillings 100, 000, 000. 00 which was the requirement before getting a licence to carry on the business of tourist agent and/or hunting block. Immediately after the bank statement was accepted by the Ministry of Natural Resources and Tourism and the licence was issued, all the monies were withdrawn by DW3 not for the use by the company, but for his personal use. It is therefore the evidence of PW1 that DW3, like herself and Ally Ahmed Saeed did not pay for his shares in the company. The witness tendered in evidence a bank statement (exhibit Pl) which supported her testimony. According to this witness on 26th November, 2004 when the defendants purports to have removed her from the company the bank statement of the company had a balance of Shillings 307. 53 which means that no share holder had paid for his or her shares by that time. The plaintiff complained that DW3 had bad faith and intention in her as he wanted to use her rich experience and exposure in the tourist industry and then dump her. She said that that is what DW3 did. It is the testimony of PW1 that she was not notified of the meeting which passed the resolution which purported to have forfeited his shares. She said 8 that she came to know of her purported removal from the company while at the offices of the Ministry of Natural Resources and Tourism. She said that the defendant wrote a letter to the Ministry informing the Ministry that she was no longer the director and/or share holder of the company. According to this witness during that time she was still the Principal Secretary of UWT and a Member of Parliament (special seats). She said that it was an embarrassing letter and she was real embarrassed by the contents of that letter. She told the court that the defendant caused the letter or information to that effect to be published in local news papers. Regarding the procurement of a hunting block, it is the testimony of the plaintiff that she spent her own monies to pay for necessary fees payable to the Ministry before a hunting block could be allocated to any applicant. She personally attended the interview and offered her tents and generators to be inspected as if they were company's assets. She did the interview on behalf of the company and she passed. The company was allocated a block called Sasa Wala at Ruvuma Region. When DW3 was informed about the acquisition of the said block, he showed his dissenting view saying that it was not a good block. He refused the block on the ground that residents of Tunduru were predominantly poachers. DW3 refused to make any fund available for development of the block. According to the plaintiff she has to use her own money for the block. She first paid USD 7500 as block fees for the year 2005. In 2006 she paid USD 8000 as block fees and another USD 10000. 00 for the same purposes. I n total for the three years period she paid USD 25, 0000. 00. The witness tendered in evidence ERV receipts (Exhibit P2) for the payments she made. Apart from Block fees, it is the plaintiff's evidence that she also paid for T.A.L licence. She produced a copy of the said licence together with ERV receipt (Exhibit P3) for USD 2000 issued by the Ministry being a licence to carry on Business of Tourist Agent Class A. The plaintiff now wants her money to be refunded by the defendant's company. The plaintiff told the court that it is the requirement for maintaining a hunting block for improvement of infrastructure within a hunting block and anti­ 9 poaching operations and support towards community development. She said that she personally paid to the government the following funds; (a) Shillings 6, 440, 000. 00 towards Village developments (b) Shillings 37, 000, 000. 00 for campsite building (c) Shillings 120, 000. 00 for anti-poaching operations (d) Shillings 15, 552, 000. 00 for road maintenance (e) Shilling 30, 000, 000. 00 for water supply. According to this witness she paid a total of Shillings 124, 000, 000. 00 towards those activities. All these payments were made in the name of the company. She conceded that she once took tourist hunters to the block but she could not remember how much she got from that business. On the other hand the defendant introduced Abdu Ramadhani Kimbengele (DW1) as it first witness. This witness told the court that he is working with the defendant's company as an operation officer. He remembers that he was recruited in the company by Jamal Abdullah Suleiman Bin Thabit DW3. He told the court that one time he was instructed by DW3 to visit the Sasa Wala hunting block as there were reports that the plaintiff was operating in that block without obtaining a permit from the company. At Sasa Wala they found some signs which indicated that some tourist hunting activities had taken place there. When they inquired from the people around the block they were informed that a company called Miyombo Tours had been hunting in the block. To his knowledge the defendant's company had no relationship with Miyombo Tours and Safaris. When cross-examined by the plaintiff's counsel, this witness insisted that he was verbally employed by DW3 and he could not produce any appointment letter from the defendant's company. Another witness who testified for the defendant is Zubeir Didi Msekeni DW2, who told the court that he was employed by the defendant's company as an administrative officer since 2004. He said that though he was employed as an administrative officer but he would attend most of the meetings of the company's Board of Directors. He mentioned the 1st Directors of the company as Jamal io Abdullah Suleiman Bin Thabit (DW3), Halima Mohamed Mamuya and Ally Ahmed Saeed. He recollects that the plaintiff and Ally Ahmed Saeed were not involved in the day to day running of the company. He knows the Memorandum and Articles of Association of the defendant's company a copy of which he tendered as exhibit DI. He said that while the plaintiff was working with UWT, Ally was working with TIOT. He remembers that in one of the Board of Directors meeting it was resolved that share holders should pay for their unpaid shares. He tendered in evidence an extract from the resolution of the Board of Directors meeting entered on 10* August, 2004 (Exhibit D2). It is the evidence of DW2 that the plaintiff and the other director were duly notified of the meeting. He said that it is him personally who dispatched the letters calling them for that meeting. He tendered in evidence the two letters and a dispatch book exhibiting delivery of the two letters (Exhibit D3 and D4 respectively) he served on the plaintiff and the other director. He said that he served the plaintiff while at his offices of UWT along Moroco and Ally Hassan Mwinyi Road at a building which used to be Gogo Hotel. The witness said that the plaintiff signed in the dispatch book acknowledging services. After 30 days another Board of Directors meeting was called. It was decided that a notice should be issued to alert the plaintiff and the other director that their shares would be forfeited if no payment were made for them. DW2 attended that meeting. He tendered the resolution which was passed in that meeting as exhibit D5. It is the evidence of DW2 that the plaintiff and Ally did not attend that meeting. The Board of Directors of the defendant's company decided to re-allot the plaintiff and Ally Ahmed shares to Mohamed Jamal and Ahmed Jamal. He said that he didn't hear any complaint from the plaintiff. He said that the 30th November, 2005 meeting was attended by Jamal Abdullah Suleiman Bin Thabit (DW3), Mohamed Jamal and Ahmed Jamal as directors of the defendant's company. The meeting decided to remove the plaintiff and Ally Ahmed Saeed from the company and their shares were forfeited. The two new directors were appointed (Exhibit D6) to replace the plaintiff and ally Ahmed Saeed. Another witness who testified for the defendant is Jamal Abdallah Suleiman DW3, who stated that he is the sole owner of Morogoro Hunting Company Limited (the 11 defendant's company). He said that in the defendant's company he is the director of everything. He told the court that the plaintiff was introduced to him by Anna Abdallah, the former chair person of UWT. He said that when Anna was introducing the plaintiff to him, she told him that the plaintiff would be of massive assistance to him particularly in acquisition of a hunting block. Otherwise, he said the plaintiff had nothing in the company. According to his testimony the plaintiff had no shares or anything whatsoever. He said that he put the name of the plaintiff in the company because he was so advised by Anna Abdallah. He however, recognized letters notifying the plaintiff of forfeiture of her shares from the company. He said that he removed the plaintiff from the company because she stole his money. DW3 tendered in evidence a letter from the Registrar of Companies (Exhibit D7) which lists himself, Mohamed Jamal Abdallah and Ahmed Jamal Abdallah as directors of the defendant's company as at 21st July, 2006. The witness testified further that it is him who paid for all requisite fees for acquiring the hunting block. He said that he gave the plaintiff Shillings 100, 000, 000. 00 from his personal account which she used for that purpose. After she had paid for the block the plaintiff used the block as her own property and leased it to Rostam Aziz at a rent of USD 100, 000. 00 per annum. When he asked her why she was doing all that, the plaintiff verbally threatened him and boasted herself of being a Tanzanian and chagga therefore she could do anything she wanted to DW3 who was an Arab. He said that he responded by telling the plaintiff that she was actually not Tanzanian but a Kenyan, therefore equally non-Tanzanian. On being asked how he came to know that the plaintiff had leased the block to Rostam Aziz and others, DW3 told the court that he heard it after two years. DW3 prayed to this court to order the plaintiff to refund to him USD 60, 000.00 she received from him for purposes of paying various fees to the government and USD 100, 000. 00 being part of the proceeds received from Rostam Aziz for the lease of the company's hunting block. As stated earlier, upon completion of the pleadings 12 issues were framed by the court and agreed upon by the parties as issues to be determined by this court. The first issue is whether the call made by the defendant's company Board of 12 Directors for payment by the share holders of 75% of the nominal value of the shares subscribed by them was valid and regular. As rightly submitted by both counsels subscription to shares of a company is an agreement and the principle governing it is identical to those which apply to other forms of contracts. This contention finds its basis in the provisions of Section 26(1) of the Companies Ordinance [Cap 212 RE 2002] which provides as under:- "The subscribers to the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members" The law as quoted above is very clear that upon registration of the company the subscribers become members of the company. In the present case there is evidence from the plaintiff testified that she subscribed to 8, 518 shares of the company. This testimony was echoed by the evidence of Zubeir Didi Msekeni J DW2. Thus, upon its incorporation on 3 December, 2003, the plaintiff was a member of the defendant's company. The next question is whether the call made by the Board of Directors of the defendant's company on 10th August, 2004 for payment of the 75% of the nominal value of the shares subscribed by its members including the plaintiff was valid. But before going to that question the immediate issue as queried by the plaintiff is the validity of the meeting which passed the resolution for call up of shares. In an Indian case of Parmeshwari Prasad Gupta Vs The Union of India [19731 RD- SC 127 (2 August 1973) it was held that notice to all Directors of a meeting of the Board of Directors was essential for the valid of any resolution passed at the meeting. In the present case it is the plaintiff's testimony that although she was in Dar es Salaam in August, 2004 she was not served with a notice of the alleged Board Meeting. On the other hand Mr Zubeir Didi Msekeni DW2 testified that he personally served the plaintiff at her offices in what was used to be Gogo Hotel along the junction of Morocco and Ally Hassan Mwinyi Road. Zubeir DW2 tendered in evidence two letters (Exhibit D3) which he said is the one he served 13 to the plaintiff and the other director Ally Ahmed Saeed and a dispatch book (Exhibit D4) which he says the plaintiff signed to acknowledge services. I have carefully gone through the testimony of PW1 and that of DW2 and the relevant exhibits on the issue and I am unable to resist the plaintiff's contention that she was not served with the notice of the Board Meeting which passed the resolution as alleged by the defendant. In the first place while DW2 referred to Exhibit D3 as a notice of the said Board Meeting, the document tendered and admitted as exhibit D3 is actually a call notice for payment of shares allotted to the plaintiff and her co-director Ally Ahmed Saeed. The defendant, in my view ought to have led evidence in the first place to prove that there was a meeting in which one of its agenda was to call upon the directors (the plaintiff inclusive) to pay for their shares. Notice of a Board Meeting duly served to the plaintiff and/or evidence from Ally Ahmed Saeed (the third director) that he attended that meeting would have carried the day. Secondly, while it is agreeable by both parties that the defendant's company was incorporated on 3rd day of December, 2003, Exhibit D3, (which as I said earlier is a notice for call for payment of the shares) refers to a company which was incorporated on 21st day of November, 2003, No explanation was given to clarify these discrepancies. It is therefore difficult for this court to know which company was being referred to in the call up notice (Exhibit D3). Failure to prove that there was such a Board Meeting has adverse effect on the part of the defendant because in such circumstances and before court can investigate whether the alleged resolution was valid, as it was held in Parmeshawari case (supra), it has to satisfy itself that in the first place there was a valid meeting. Legally no resolution can be passed without there being a valid meeting for that purpose. In the present case no Board Meeting was convened to pass a resolution for call of shares therefore no resolution could be passed. But assuming that there was a Board Meeting validly constituted and that a resolution was passed for a call upon the subscribers to pay for shares allotted to them. The next question would be whether calling on the share holders to pay up 14 to 75% of their nominal shares is consonant with the provisions of the law governing calling for unpaid shares. As rightly submitted by the defendant's counsel subscription of shares to a company is an agreement between the subscribers and the company concerned. This agreement like any other form of a contract is governed by the agreed terms of that contract. The agreed terms of a contract in respect of subscription of shares to the company is found in the Memorandum and Articles of Association of that company. In the present case Article 1 of the Articles of Association of the defendants company (Exhibit DI), provides that:- "The regulations of Table 'A' in the First Schedule to the Companies Ordinance.... shall apply to the company, save in so far as they are varied or excluded hereby, but in case of any conflict between the provisions of Table 'A' the following shall be the regulations of the company" There is no provision in the Articles of Association of the defendant's company which provides for the call of shares or which varies or exclude the application of Table A in the first schedule to the Companies Ordinance. Now article 11 of Table A of the Management of Limited Companies Regulations provides that:- "The directors may from time to time make calls upon members in respect of any monies unpaid on their shares provided that no call shall exceed one fourth of the nominal amount of the share, or payable at less than one month from the last call......... " Because there is no provision in defendants company Articles and Memorandum of Association which deals with the call of shares and there is no provision which varies or exclude the provisions of Table A, Article 11 in the said table which deals with call of shares apply. In the circumstances therefore, the company ought to have called not more than one fourth which is 25% and not 75% as they did in this case. 15 It is in the evidence of Jamal Abdullah Suleiman Bin Thabit DW3 and the call for share notice which was tendered in evidence (Exhibit D3) that the plaintiff was required to pay at least 75% of the nominal value of shares allotted to her. This requirement violates the provisions of Article 11 of the Management of Limited Companies Regulations which is applicable to the defendant's company pursuant to the provisions of Article 1 of the Articles of Association of the Company. Thus, even if we assume that the Board Meeting was properly constituted and the plaintiff was dully notified, (which is not the case here), yet the resolution passed could not be valid as it violates the provision of the law. It is on those reasons that I answer the 1st issue in the negative. That is to say that the Board resolution allegedly passed by the defendant's company for a call upon its subscribers to pay 75% of their shares was ultra vires of the powers of the directors and therefore invalid and of no effect. The second issue is whether the other share holders paid for their shares. It is the testimony of Jamal Abdulla Suleiman Bin Thabit (DW3) that on 24th February, 2004, he deposited into the company account Shillings 100, 000, 000. 00/= being payment for his shares in the company. I find this evidence to contradict the contents of exhibit D3 which indicates that the resolution of the company passed under Articles 8, 9, and 10 of the Articles of the Association (Exhibit D2) required subscribers to pay at least 75% of their shares. The contradiction is on the date Jamal purports to have paid and the date of the notice requiring them to pay. Whereas Jamal DW3 says that he paid for his shares way back in February, 2004, the notice calling upon them to pay was issued in August 2004, which is about six months later. Furthermore, there is undisputed evidence from both sides that the monies which were deposited into the company's account No 01J1013376500 with CRDB bank were withdrawn from the said account on the following day. This fact was admitted by Jamal Abdullah Suleiman Bin Thabit DW3 during cross examination. In her testimony the plaintiff told the court that the monies were deposited in order to enable the company to get a bank statement which would show that it 16 had in its accounts a credit balance of not less than Shillings 100, 000, 000. 00/= this according to Halima PW1 was one of the requirements under Tourist Hunting Regulations (2002). Halima testified further that she successful used that bank statement in an interview conducted by the Wildlife Department and as a result the company was allocated Sasawala Hunting Block in Ruvuma Region. It is therefore Halima's evidence that none of the subscribers ever paid for his or her shares in the company before or even after the alleged call. The witness tendered in evidence a bank statement Exhibit Pl, which shows that apart from the deposit made on 24th February, 2004 (which she says was made for purposes of obtaining bank statement), no other payment had been deposited to the company's account to-date. This evidence is not seriously challenged by the defendant save for some attempt to show that the company operated another account with the Bank of Baroda. It is submitted by the plaintiff's counsel that the transaction of 24th February, 2004 was intended to deceive Jamal's fellow directors the plaintiff inclusive. The learned counsel contends that having regard to the subsequent defendant company's decision to dismiss the plaintiff and Ally Ahmed Saeed from the company and replace them with Mr Jamal's sons, one cannot resist a temptation that the deposit by Mr Jamal done on 24th February, 2004 was not done in good faith or in the interest of the company. While I do agree with the suggestion that the transaction of 24th February, 2004 might have been done in bad faith, but I am hesitant to go with the plaintiff's counsel contention that it was intended to deceive Jamal's fellow directors. To the contrary I am of the view that if anything the transaction was intended to deceive the Ministry of Natural Resources and Tourism which is responsible for allocation of hunting blocks. It is the unchallenged evidence of PW1 that the monies were deposited in order to enable the company to get a bank statement which would enable it to demonstrate to the Wildlife Department its economic and financial viability which was one of the pre-requisites for obtaining a hunting block. That is the reason why they were withdrawn on the following day. This, according to PW1 was done with the knowledge and consent of all directors. It 17 follows therefore that the monies were not deposited as payment for shares allotted to Mr Jamal (DW3), as the defendant would like this court to believe, but to deceive the Government that the company was financially capable of running tourist hunting. This, to say the least is a shame to all those who were involved in the scam. However, in my view this is a tip of iceberg in tourist hunting industry. Moreover, if we assume (which cannot be the case) that DW3 deposited the said amount as payment for shares allotted to him by the company, one may be tempted to ask why paying all that monies while the total nominal value of his shares was shillings 8519(the total number of shares allotted to him) X Shillings 10, 000/=(the value of each share)= shillings 85,190, 000/=Had he wanted to pay 100% of his shares! No explanation has been given for the excess Shillings 14, 810, 000/= paid over and above the 100% of nominal values of Mr Jamal's shares. Furthermore Exhibit Pl shows that apart from the deposit made on 24 February, 2004 and the withdrawal made on the following day, no other transaction took place in the company's bank account No 01J1013376500 with the CRDB Bank. By September, 2006 the company account's balance was Shillings 307.53 only. Although in his defence DW3 attempted to convince the court that the company operates another account with Bank of Baroda in which other share holders deposited some payment for their shares, no evidence was led to show that the averments were true. I therefore find as a matter of fact that no share holder paid for his or her shares in the company. This finding answers the second issue in the negative, that is to say no other share holder paid for his or her shares in the company. Issue No 3 is whether the defendant's forfeiture of the plaintiff's shares is valid and regular. The authority to forfeit shares is given to the Board of Directors in Articles of Association of the Company. The Board of Directors has to give at least fourteen days notice to the defaulting members calling upon them to pay outstanding amount before the specified date (See Regulation 11 of the management of Limited Companies Regulations of Table A of Regulations for the Management of Companies Limited by Shares). Under the provisions of Regulation 23 if a member 18 fails to pay any call or instalment of a call on the day appointed for payment thereof, the directors may, at any time thereafter during such time as any part of such call or instalment remains unpaid, serve a notice on the member requiring payment of so much of the call as is unpaid, together with interest which may have accrued. Under the provisions of Regulation 24 the notice is required to name a further day (not earlier than the expiration of fourteen days from the date of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non- payment at or before the time appointed the shares in respect of which the call was made will be liable to be forfeited. Under the provisions of Regulation 25, the Board of Directors of the company may decide to forfeit such shares by passing a resolution. The decision regarding the forfeiture of shares should be communicated to the concerned allot tees and in terms of Regulation 28 a statutory declaration in writing that the declarant is a director of the company and that a share in the company has been dully forfeited on date stated in the declaration shall be conclusive evidence against all persons claiming to be entitled to the share. I have already found as a matter of fact that there was no Board of Directors' Meeting properly constituted and which could pass a resolution for call for payment of subscriber's shares in the company. It follows therefore that any subsequent action taken as a result of the said meeting and resolution is null and void ab initio. As is evident in exhibit Pl none of the subscribers including Jamal to the Memorandum and Articles of Association of the defendant's company had paid for his or her shares contrary to what the defendant would wish this court to believe. No statutory declaration was tendered in evidence to show that the shares were forfeited as required by Regulation No 28 of the Management of Limited Companies Regulations. It follows as day follows the night that the directors who had not paid for their own shares cannot have the powers and/or rights to forfeit shares of their fellow director who had not paid for her shares as well. 19 Thus, the 3rd issue is answered in the negative. I find and hold that the defendant's alleged forfeiture of the plaintiff's shares in the company was irregular, invalid and therefore void and of no legal effect. The finding in respect to issue No 3, extends to issue No 4 which asks whether the plaintiff is still a bona fide share holder in the defendant's company. Having found that the alleged forfeiture of the plaintiff's share is invalid and of no effect, it follows that the transfer of her shares to Mr Jamal's sons Mr Ahmed Jamal Abdullah and Mohamed Jamal Abdullah is equally void and of no effect. There is no evidence that the said 'new share holders' paid for the shares purportedly allotted to them after they were 'forfeited' from the plaintiff. In his evidence DW3 told this court that his sons paid for their shares by depositing cash money equal to the nominal value of their shares in the company with the company's bank account at the Bank of Baroda. As rightly suggested by the plaintiff's counsel, this is a sheer lie. In paragraph 8.6 of the defendant's written statement of defence to the amended plaint filed on 21st August, 2007 (vide ERV receipt No 29056551), bearing the same date the defendant stated:- "Pursuant to the resolution of the board of directors of the company, on the 18th February, 2004 the defendant opened and started operating a company bank account Number 01J1013376500, opened and operated by the company at the CRDB Bank Kijitonyama Branch. The bank account of the company was opened by the 1st defendant with an initial deposit of...... shillings 100, 000, 000/=only. To the knowledge of the defendant, the company did not open and operate any other bank account in its name and the bank account opened and operated at the CRDB Bank, Kijitonyama branch was the only company's account duly opened and operated in accordance with the company's mandate". [emphasize mine] Elsewhere in an affidavit filed in support of a chamber summons which successfully sought for a temporary injunction against the plaintiff from conducting any activities in Sasawala hunting block on 15th March, 2006 and affirmed by Mr Jamal Abdullah Suleiman Bin Thabit DW3, Jamal stated on oath 20 that "the account opened at CRDB Bank, Kijitonyama Branch was the only account operated by the defendant's company" (see paragraph 7 of the said affidavit). There is no possibility that the two rivalry contentions are both true. The truth here is that the defendant's company has only one bank account which it operates with CRDB Bank as stated in paragraph 8.6 of the amended written statement of defence and also in paragraph 7 of Mr Jamal's affidavit. Jamal's testimony that there was another account opened and operated by the company at the Bank of Baroda is, to say the least an after- thought and a lie. In law parties are bound by their pleadings. Rule 7 of Order VI of the Civil Procedure Code [Cap 33 RE 2002], provides that:- "No pleading shall, except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same" In the case of Bata Shoe company Limited Versus Standard Chartered Bank & Another Commercial Case No 3 of 2004 (Kimaro J as she then was) it was held that parties in litigation are bound by what has been stated in the pleadings. News matters will reluctantly allowed during the trial. What DW3 ought to have done during the trial was to bring evidence to prove what he pleaded in his previous pleadings. This has not been done, and to the contrary he gave evidence which contradicts his own pleadings. In this circumstances court is bound to reject the contradictory evidence which I hereby do. Moreover, no evidence was led to show that there was another company's account in the Bank of Baroda which would entice this court to consider Mr Jamal's statement from the bar regarding the existence of that account. Having rejected the evidence that there was another bank account with the Baroda Bank operated by the defendant's company through which the 'new share holders' paid for their shares and there being no evidence of the said payments being made to the company's only bank account with CRDB whatsoever it is imperative to find that the purported new share holders did not acquire any title 21 to the shares in the defendant's company. There was simply no consideration for the said shares. It is for these reasons that I answer issue No 4 in the affirmative. That is to say the plaintiff is still a bona fide share holder of the defendant's company. Issue No 5 is whether or not the plaintiff was appointed the Managing Director of the defendant's company. In her testimony PW1 told the court that she was not appointed to that office by a dully constituted meeting of the company's Board of Directors. She also conceded that there is no provision in the documents of the company which contain words to that effect. However she relies on the admitted fact that she was assigned a duty to secure a hunting block for the company. This fact was admitted by Jamal Abdullah Suleiman Bin Thabit DW3, Abdul Ramadhan Kimbengere DW1 and Zubeir Didi Msekeni DW2. For those reasons it is submitted by the plaintiff's counsel that because the plaintiff was assigned that duty, and because on the evidence available DW2 and DW1 were recruited verbally, this court should assume that the plaintiff was equally th appointed to the post of Managing Director verbally and resolve the 5 issue in her favour. As rightly submitted by the defendant's counsel the office of Managing Director is an office created by the Articles of Association or by appointment in terms table A to the Companies Ordinance. In other words it is a contractual office. There is no evidence whatsoever that the plaintiff was appointed to the office of Managing Director of the defendant's company by virtue of the Articles of Association of the Company or by any resolution dully passed by its directors. To the contrary there is undisputed evidence of Zubeir Didi Msekeni DW2, Abdul Ramadhan Kimbengere DW1 and Jamal Abdullah Suleiman Bin Thabit DW3 to the effect that during the material time the plaintiff was a Member of Parliament on special seat and also the Secretary General of CCM women wing commonly known as UWT. Undoubtedly, the office of Secretary General of the UWT is a full time job and to say the least very involving. The plaintiff did not call evidence to show how she could manage to run the day to day affairs of the company in the one hand and her office as a Secretary General of UWT and a Parliamentarian. 22 In summary on this issue, there is no evidence that the plaintiff was appointed as a Managing Director of the defendant's company. I accordingly answer the 5th issue in the negative, that is to say the plaintiff was not appointed as the Managing Director of the defendant's company. The 6th issue is whether the defendant's decision to terminate the plaintiff's directorship in the company was valid and regular. I have already found as a matter of fact that the purported acquisition of the plaintiff's shares and her removal from the company are invalid. The plaintiff was among the three founding members of the defendant's company upon subscribing to the Memorandum and Articles of Association of the company. Section 26(1) of the Companies Ordinance stipulates that:- "The subscribers to the Memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members" It is the evidence of Halima PW1 that she subscribed to the Memorandum and Articles of Association of the defendant's company. This evidence is conceded by Mr Jamal Abdullah Suleiman Bin Thabit DW3 who told the court that he acquired the plaintiff to 'his' company on advise of Ms Anna Abdallah, the then chairperson of UWT, who told him that the plaintiff may 'assist' him in acquisition of a hunting block. Therefore the question of the plaintiff not being a subscriber to the defendant's company is out here. Upon the company's registration the plaintiff became a member by virtue of the Act of the Parliament in terms of the provision of section 26(1) of the Companies Ordinance. Article 6 of the Company's Articles of Association (Exhibit DI) provides that:- "(a)......................... [Not relevant] (b) The following person shall be the first directors to the company:- 1. Jamal Abdullah Suleiman Bin Thabit 2. Ali Ahmed Saeed 23 3. Halima Mohamed Mamuya. Thus, the appointment of the plaintiff to the post of director of the defendant's company was as per the Articles of Association. As stated earlier Memorandum and Articles of Association of a company constitutes a binding agreement between subscribers therein and the company. The Articles of Association of the defendant's company do not stipulate for any share holding qualification for appointment to the directorship. Thus, the plaintiff having being appointed to that post by virtue of the Articles of Association of the company, she could be removed only by virtues of the terms contained therein. Since there is no specific provisions dealing with removal of directors it follows that a director could not be removed from his post save as stipulated under regulation No 72 of Article "A" of the first schedule to the Companies Ordinance which applies to the company pursuant to article 1 of the Articles of Association of the company (Exhibit DI). As pointed out by the plaintiff's counsel the manner under which the plaintiff is purported to have been removed does not fall under any of the events stipulated under article 72. In the case of Southern Foundries (1926) Ltd and Federated Foundries Ltd Vs Shirlaw (1940) 2 ALLER 445, the English Court observed that the contract relationship between a company and its director cannot be determined save for events stipulated for in the contract, or by operation of the law or by will of the two parties. I find the decision in this case (which is also cited by the plaintiff's counsel), to be persuasive. In the present case the purported removal does not fall under events stipulated by regulation 72 of Article "A" of the First Schedule to the Companies Ordinance, nor does it find its basis in the contract and there is no agreement for plaintiff's removal. In the circumstances I am increasingly inclined to answer the 6th issue in the negative, that is to say the defendant's decision to terminate the plaintiff from the company's directorship was irregular, invalid and therefore of no legal effect. 24 The 7th issue is whether or not the plaintiff was assigned the duty of procuring a hunting block for the defendant's company. It is the evidence of PW1 that the company's principle business is professional hunting. In order to carry out its core function the company had to have a hunting block. This evidence was supported by the testimony of Abdul Ramadhan Kimbengere DW1 and Zubeir Didi Msekeni DW2. According to DW2 he attended most of the Board of directors meeting and in one of those meetings the defendant's company assigned to the plaintiff a duty to procure a hunting block. On the other hand Jamal Abdullah Suleiman Bin Thabit DW3, testified in his evidence in chief that the plaintiff was introduced to him by Ms. Anna Abdallah, former chairperson of UWT. He told the court that Ms Anna Abdallah told him that the plaintiff can assist him in procuring a hunting block. He conceded that actually the plaintiff assisted the company in getting a hunting block at Sasa Wala in Ruvuma Region. This piece of evidence of Jamal corroborates the testimony of Halima that she was assigned the duty to procure a hunting block for the company. Thus, from the evidence on record the plaintiff was assigned (and one may be tempted to say she was recruited for) a duty to procure a hunting block for the company. In the circumstances therefore, I answer the 7th issue in the affirmative. That is to say the plaintiff was assigned a duty to procure a hunting block for the defendant's company. The next issue is whether the plaintiff with the knowledge of the defendant, incurred personal expenses and time to procure and maintain the defendant company's Sasa Wala Hunting block. I have found while discussing issue No 7 above that the plaintiff was assigned a duty to procure a hunting block for the defendant's company. In her testimony Halima PW1 tendered exhibit P4, a letter from the Ministry of Natural Resources and Tourism addressed to the General Manager of the defendant's company. That letter contains some requirements for maintaining a hunting block. The letter quotes Regulation 10(4) of the Tourist Hunting Regulations Revised edition of 2002 which requires a hunting company to contribute towards community development projects. It is the plaintiff's evidence that in total she paid USD 25, 500.00 as Block fees and contributions towards community development projects as required by the quoted Regulation. She testified that she paid all these fees 25 and contributions from her own pocket but with the knowledge and consent of her co-directors. To substantiate her claims, she tendered in evidence four copies of government bills (Exhibits P2 and P3) addressed to the defendant's company and the corresponding exchequer receipts exhibiting payments made to the government by the defendant's company. In total USD 27, 500.00 were paid to Ministry of Natural Resources and Tourism vide exchequer receipts No's 20751005, 21905805 and20652508 of 27thSeptember, 2004, No's 21906654 and 18832915 of 17 July 2005 and No's 23500847 and 23500456 of 6th July, 2006 (Exhibit P2). This evidence is not seriously challenged by the defendant. It is not disputed that the said monies were paid to the Ministry of Natural Resources as per Regulation 10(4) of the Tourist Hunting Regulations. It is also not disputed that it is the plaintiff who paid the said monies for the company. The allegation that it is Jamal Abdullah Suleiman Bin Thabit DW2 who gave the plaintiff that monies is not substantiated. The defendant did not tender any company resolution which authorized him to dish out the monies to the plaintiff. Nor did he produce any payment voucher or any paying documents to exhibit transfer of monies from the company to the plaintiff. As per Exhibit Pl the only monies paid to the company was deposited on 24th February, 2004 and was withdrawn on the following day on Jamal's instructions and were paid by banker's cheque to Messrs Muhsin Said and Amuor Said. Muhsin and Amour were not called to testify in this matter and explain how they spent the monies. The testimony of DW2 that Muhsin and Amour gave the said monies to the plaintiff for purpose of paying for block fees and other payments as required by the government is hanging and is not supported by any document or independent evidence probably from Amour and/or Muhsin. I therefore hold that Halima, PW1 paid the said money from her own pocket and the company was aware and consented to the transactions. It is on these grounds that I answer the 8th issue in affirmative that is to say the plaintiff with the knowledge of the defendant incurred personal expenses in procuring Sasawala hunting block for the company Issue No 9 is a follow-up issue from issue No 8. Summing up the monies paid by the plaintiff to the Ministry of Natural Resources and Tourism as per exhibits P2 26 and P3, respectively the amount boils down to USD 27, 500.00. Thus, the amount incurred by the plaintiff is USD 27, 500. 00 Issue No 10 is whether the plaintiff did unlawfully and without any colour of right interfered with the business and affairs of the defendant's company. Having resolved that the plaintiff is still a share holder and director of the defendant's company it is absolute imperative to hold that whatever she did for the company she did in her capacity as the company's director. Thus, issue no 10 is answered in the negative. That is to say the plaintiff did not unlawfully and without any colour of right interfered with the business and affairs of the defendant's company and her actions do not amount to trespass. This also answers issue No 11 whether or not the defendant suffered any loss and/or damages due to the plaintiff's action. It is the testimony of Jamal Abdullah Suleiman Bin Thabit DW3 that the major loss the defendant suffered is depletion of wildlife at Sasawala hunting block. He stated that the plaintiff leased out the block to Mr Rostam Aziz and was paid over USD 300, 000.00 which she pocketed. No evidence was adduced to substantiate this allegation. The defendant did neither produce a copy of the said lease agreement for inspection by this court nor did he call Mr Rostam Aziz or any other person to testify on this issue. As I have already found, as a matter of fact that whatever done by the plaintiff in the said hunting block was so done in her capacity as a director and share holder of the defendant's company it follows as the day follows night that she had authority and mandate to do what she did in the hunting block. The last issue is about reliefs. The first relief sought by the plaintiff in the amended plaint filed on 7th August, 2007 is a declaration that the plaintiff is a bona fide director and share holder of the defendant's company. I have resolved that the Board Meeting which purports to have passed a resolution forfeiting the plaintiff's shares and all the subsequent steps thereafter were a nullity and of no legal consequences. It is imperative therefore to hold and declare that the plaintiff is still a bona fide director and share holder of the defendant's company. 27 Secondly, the plaintiff is claiming for Shillings 124, 312, 000.00 being special damages. No evidence was led to show how the total amount claimed was reached. There was, however, evidence to support the claim of USD 27, 500. 00 being monies paid for obtaining a professional hunting licence (Exhibit P3), Block fees and contribution to Wildlife Protection Fund (Exhibit P2) which was paid to the Director of Wildlife. No other evidence was led to prove that campsites worth Shillings 37, 120, 000. 00 were erected within the block. Similarly the plaintiff did not give evidence to substantiate her claims for Shillings 15, 552, 000. 00 paid for Anti-Poaching Activities and another Shillings 30, 000, 000. 00 allegedly paid for road maintenance and water services. In the case of Sabuni Detergents Limited Vs Murzah Oil Mills Limited Commercial case No 256 of 2001,(unreported) this court (Dr Bwana J, as he then was), observed that: "....usually it is preferable that the two heads of damages-special damages and general damages be separated. This is so because of the standard of proof required. Special damages have to be specifically claimed and have evidence adduced in support thereof. Hence the plaintiff must show how he arrived at the figures claimed. Hypothetical calculations of the damages are discouraged. General damages, on the other hand, are discretionary awarded by the court after taking into consideration all relevant factors of the case"[emphasize mine] In Siere Vs Lake Turkana EL Molo Lodges Ltd (2002) 2 EA 521 the above principle was echoed and the Kenyan court emphasized that special damages must not only be specifically pleaded but also strictly proved. From the findings above and the principles quoted in the two cases cited the plaintiff is entitled to reimbursement of the sums she personally spent in procuring and maintaining the Sasawala hunting block which belongs to the defendant's company. In this respect the amount proved to have been paid for the company is USD 27, 500. 00 I therefore award the plaintiff USD 27, 500. 00 being the actual amount she personally spent in procuring the block and the block fees and maintenance paid for three years from 2004 to 2006. It should be clear from what I have stated above that the basis of the plaintiffs claim for refund of the amount used for erection of campsites, road maintenance, Anti- Poaching 28 activities and water services in the Sasawala hunting block is weak and does not meet the requirement of strict proof of special damages. Judged by the standards enunciated in the siere Vs Lake Turkana EL Molo Lodge Ltd case (supra), the plaintiff's evidence in this aspect was most unsatisfactory. The plaintiff is also claiming for general damages of shillings 200, 000, 000. 00 on the ground that the officers and agents of the defendant's company wrote embarrassing and defamatory letters to various government authorities thereby the reputation and personality of the plaintiff in the society and as a Member of Parliament. The plaintiff's complaints are against a letter dated 2nd June, 2006 from the defendant's company addressed to Principal Secretary Ministry of Natural Resources and Tourism and copied to the Director of Wildlife, The director General TRA and the Principal Secretary Ministry of Industries Trade and Marketing and also against stories published in local newspapers about her removal form the company. Jamal Abdullah Suleiman Bin Thabit DW3, admitted in cross-examination the defendants' company to have authorized the circulation of the said letters. He did not dispute the publication of the report. The plaintiff's argument is that the information was false and defamatory against her as a director of the defendant's company and also as a Member of Parliament. In law the basis of the tort of defamation is injury to reputation so it must be proved that the statement was communicated to someone other than the person defamed. In the present case there is evidence that the letter was communicated to the Ministry of Natural Resources among other places. In the case of Sim Vs Stretch [19361 2 ALL ER 1237 (HL), it was held that the publication of untrue statement about a person that tends to lower his reputation in the opinion of the right-thinking members of the community or to make them shun or avoid him is defamation. In the present case the defendant do not dispute to have circulated the statement nor do they deny causing the same to publish in some of the local newspapers. In her evidence the plaintiff testified unchallenged that in one of the Local newspaper there was an article published with the heading " 29 Mbunge abwagwa, atupwa nje ya kampuni" which literally mean a Member of Parliament has been thrown out of the company. As stated earlier, this assertion is not disputed. Apparently the defendant maintains the same position that the plaintiff is untrustworthy person. This is evident from the testimony of Jamal Abdullah Suleiman Bin Thabit DW3. In cross- examination, Jamal Abdullah Suleiman Bin Thabit DW3 told the court in Kiswahili that ; "Nani Halima?....... Yule mwizi bwana, mama Anna kaniambia mwizi mwangalia" which literally means that the plaintiff was nothing but a mere thief. This, in my view is self confession to the allegation of defamation. There are two remedies in defamation cases. The first and most common are compensatory damages which seek as far as is possible to compensate or make up for damages suffered by the plaintiffs reputation as a result of the defamatory statement. The second is punitive or exemplary damages. These are damages which aim to punish the defendant. In the case at hand I am of the view that given the circumstances of the case the plaintiff is entitled to compensatory damages. What is the amount payable under this heading? The plaintiff is claiming Shillings 200, 000, 000. 00 which she placed under the title general damages. I feel that the amount proposed by the plaintiff is rather on the higher side of the scale. I think the award under this category should be proportionate to the damages which the plaintiff had suffered. It must be a sum which is necessary to award him to provide adequate compensation and re-establish her reputation. In assessing the appropriate damages for injury to reputation, the most significant factor is the gravity of the libel, the more closely it touches the plaintiffs personal integrity, professional reputation, honour, courage, loyalty and the core attributes of her personality, the more serious it is likely to be. Now taking all that into consideration and taking into account that the plaintiff who was the Chief Secretary of CCM Women wing commonly known as UWT and is no longer in that position, and that she is (at the time she gave her testimony) a Member of Parliament on special seats ( though I am not sure if she is still a member at the time this judgment is handed down), I award her Shillings 50, 000, 30 000.00. as general damages suffered by her as the result of the acts of the defendant and or its officials. In summary therefore, I enter Judgment for the plaintiff against the defendant and order as follows: 1. That the Plaintiff Halima Mohamed Mamuya is declared a bona fide Director and Share holder of the defendant's company known as Morogoro Hunting Safaris Limited. 2. The Defendant is ordered to pay to the Plaintiff USD 27,500. 00 being the amount paid by the plaintiff to the Ministry of Natural Resources and Tourism on behalf of the defendant's company for procuring and maintaining the hunting block known as Sasa Wala hunting block in Ruvuma Region. 3. The Defendant shall pay to the Plaintiff Shillings Fifty Million being general damages. 4. The amount payable under 2 above shall carry interest of 5% per annum from the date of filing the suit to the date of judgment and further interest of 2% from the date of judgment to the date of full settlement. 5. The defendant shall pay costs in this suit. 6. The defendants counter claim (in any form) is dismissed. Order accordingly. A.R. MRUMA JUDGE 1/4/2011 Coram: Hon. A.R.Mruma, Judge. For the Plaintiff - Mr. Ngeleshi for Plaintiff. For the Defendant - Mr. Josiah for the Defendant CC: J. Grison. 31 COURT: Judgment delivered in presence of Mr. Ngeleshi, Advocate for the Plaintiff and Mr. Josiah, Advocate for the Defendant this 1st day of April, 2011. JUDGE 1/4/2011 11,386 - words 32