MZUNGU APPLICATION INJUNCTION

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 11164 OF 2024 IN THE MATTER OF THE COMPANIES ACT, CAP 212 R.E 2002

AND

IN THE MATTER OF AFRICAN DEM ADVENTURE COMPANY LIMITED

AND

IN THE MATER FOR PETITION FOR UNFAIR PREJUDICE UNDER SECTION 233(1), (2), (3) OF CAP 212 [R.E 2002] ERROL LLOYDE BAILLEY ……………………………….…….……..…..1ST APPLICANT PHILIPPA SMITH ………………………………………………………….2ND APPLICANT

VERSUS EMANUEL PHILP KUTTA ………………………………………………1ST RESPONDENT AFRICAN DEM ADVENTURE COMPANY LIMITED…………..…..2ND RESPONDENT

RULING 25th June & 13th November, 2024 MWANGA, J. 1 The applicants and the 1strespondent are the shareholders of the 2nd Respondent, African Man Dem Adventure Company Limited, which was incorporated in Tanzania on the 16th Day of December 2020 and issued Certificate of Incorporation No. 147251017 and Tax Identification Number [TIN] 147-251-017. The company was granted a license to carry on the business of Tourism—Class A license No. 006534 and a Business license No. 20000014644. In the said company, the 1st respondent, Emmanuel Philip Kutta, a Tanzanian citizen, is prearranged with 450 Ordinary Shares and holds the pivotal roles of majority shareholder, Company Secretary, and Director at the formation of the Company. His responsibilities are significant, and his role is crucial. In contrast, the 1st applicant, Errol Lloyd Bailey, a British citizen, is prearranged with 200 Ordinary Shares and is a Director and Chief Executive Officer, bearing significant responsibilities. The 2nd applicant, Philippa Smith, a British citizen, is prearranged with 200 Ordinary Shares and is a Director and Chief Finance Officer, also carrying substantial responsibilities for African Man Dem Adventure Company Limited. By way of the said affidavit, the applicants first entered into the jurisdiction of the United Republic of Tanzania on October 19, 2020, and 2 were granted Tourist Visas for three

months. This was the beginning of a series of events that led to their meeting with the 1st Respondent, Emmanuel Philip Kutta, after being recommended as a driver by Sultan Iqbal Ibrahim from Mjimwema Kigamboni within the Dar es Salaam Region. Consequently, on the 25th Day of October 2020, an initial Agreement for Investment between the 1st Applicant on one part and the 1st Respondent on the other part was signed between the parties. The agreement was based on transporting tourists in Tanzania to hotels, airports, and places of interest such as Bagamoyo, Zanzibar, Mafia, and Mtwara to provide an affordable and friendly service to help and encourage Tanzanian economic development. As further pointed out in the affidavit, this agreement witnessed initial payments; thus, the 1st Applicant initially gave one thousand (£1000/=) Sterling Pounds to the 1st Respondent for him to have his seven (7) seater taxi customized for tourist safety with the hope to invest more funds and form a viable business proposition with the 1 st Respondent shortly. Other finances were injected to purchase the land, equipment and machines, vehicles, and constructed buildings for businesses. Currently, they are residing together in the said premises. 3 The facts deposed by the applicants suggest that the conduct of the 1st respondent has been unfairly prejudicial to the company's members, i.e., the

applicants and the 2nd respondent, AFRICAN DEM ADVENTURE COMPANY LIMITED. It is alleged, as the business endures, the 1st Respondent, who is the majority shareholder and who is responsible for the day-to-day activities of the Company, has been conducting the affairs of the Company in a manner that is unfairly prejudicial to the interests of its members and subsequently, the Company found itself in misunderstandings among Directors and Shareholders and as a result the objectives of the Company became inoperative. The particulars of unfair prejudices are; i. From the diverse dates of February 2022 onwards, the 1st respondent bought many bad bargains against the Company’s interests and the Applicants’ instructions; the Applicants had strongly considered, suggested, and opted to buy new brand items with warranties and guarantees instead, the 1 st Respondent herein, mostly purchased refurbished and 2 nd hand items for the Company with no receipts and warranties. ii. The applicants have noticed missing receipts for company items and properties as hereby appearing: - 4 (a). Missing receipt in respect of the sale of a 3-wheel diesel dump Truck, allegedly for 6/7million, together with its Contract for Sale; (b). Missing receipt in respect for the Sale of brick machine reportedly for 10 million, together with its Contract for Sale; the said machine was bought for Thirty-Three Million

Tshs [33] but sold without the applicant's knowledge or consent the facts which he confessed but there was no accountability for the said amount; (c). There have been missing items and receipts in respect of the T-shirts.250,000/= deposit paid for the second (2 nd) Sugar Cane machine, July 2023; (d). There is a missing correct receipt for a new Refrigerator for 2,800,000/=, a missing receipt in respect of four (4) house fans, a missing receipt in respect of the swimming pool tester kit reportedly for 280,000/= and a missing receipt in respect of the old refrigerator repair, reportedly for 200,000/=, (h). Missing receipt in respect of repairs to Toyota Rav 4 (Jeep) for reportedly 4,500,000/=, missing receipt and accessories in 5 respect of Vacuum Cleaner, allegedly purchased for 450,000/=; missing receipts in respect of shisha pipes, missing receipts in respect of worker’s child hospital cancer insurance for reportedly 250,000/=, paid to the wife of Sijanoa; missing receipts for generator repairs, chicken feed machine, mattress, most building materials bought, most labor paid for, iii. The 1st respondent has moved the premises to unknown and undisclosed locations to the Applicants and only knows to himself; this was done without the 1st and 2nd Applicants’ consultations. It is asserted that the following are missing (off- site) assets that belong to the Company after being taken

by the 1st Respondent together with his allies from the Company’s premises without explanation, namely; a) Cement Mixer, b) Compressor, c) 5 kilowatts Generator, d) Egg incubator, e) Solar panels from Banda roofs 6 f) Seven (7) seater taxi with Registration number T 337 BPU, which was intended to be registered under the Company’s name and reportedly paid for repair in 2020, has never been on site to date, g) 20 liters of honey and 20 liters of oil reportedly ordered from Singida for approximately 300,000/= never arrived, h) Managing Director Emmanuel Kutta took (30 pairs of shoes) from Mr. Errol Lloyd Bailey; to date, the same has never been returned or reimbursed. iv. The 1st respondent's dishonesty conduct has been persistent, with extreme aggression towards the applicants, refusing to grant the Applicants herein access to the Stamp of the Company, Visitors Book, Main Gate, Stores, Bar, Cottages, Fridge, and the Company’s motor vehicle Land Rover Defender 110 make with Registration Number T 440 DFA, registered in the Company’s name and which recently has been used for his activities without approval or consultations from the and with a Tourism License which expired on the 31st December 2021, never renewed. 7 v. The Respondent has been frustrating the Applicant's access to the basic needs of every human being, explicitly running water and power. The water Infrastructure is

poorly installed, and the farm, which includes crops, chicken and dog breeding, and visitors, has all collapsed. vi. The 1st Respondent is mistreating the Applicants with extreme aggression and subjecting them to torture, mistreatment, inhuman and degrading their dignity by refusing them access to water, sabotaging the storage water tanks and refusing funding access to check the pump machine and electricity; he is refusing the Applicants access into the credit machine which is used to insert electricity credits paid. The Respondent is denying the Applicants access to BRELA Company’s account, particularly the password and the username, which is known to himself; further, the Respondent is also denying the Applicants herein access and the use of the kitchen, store, and use of fridge, as an alternative the Applicants are now using their living room area for preparation and cooking of food. 8 vii. The 1st Respondent has been using abusive language against the Applicants. The Applicant's friends have been aggressively threatened and denied access to the Company’s premises. Applicants’ personal and Company items have disappeared or been lost unceremoniously; these include a 5kw generator, five mosquito lights bought for 45,000 each, the compressor machine, shoes, and an egg incubator. viii. The Applicants herein has, on the 05th of January 2023, opted to report a series of criminal

elements which were conducted in times by the 1st Respondent against the Applicants herein at Kigamboni Police Station and was issued with a Police Case File reference number |KGM|CID|PE|03|2024|; since then, the Respondent has been threatening the Applicants verbally and sending text messages through his personal WhatsApp Application account number +255 652 527 268, registered in his name. ix. The Respondent, who is a Director, Shareholder, and Company Secretary, neglected the Applicants’ requests in times without number for a Director’s Meeting, Extraordinary Meeting, or 9 Annual General Meeting from the Respondent and by the Company’s Memorandum and Articles of Associations together with the provisions of the law and many requests have been ignored by the Respondent. Given the above, the applicant sought it prudent to file a Petition for unfair prejudice in Petition No. 10989/2024. The same was followed by the application for temporary injunction filed under a certificate of urgency where the applicant is requesting this court orders to temporarily restrain the 1st Respondent, his agents, representatives, group of persons acting under the instructions of the 1st Respondent and/or any other persons acting on that behalf from taking part in the management of the affairs of the Company or acting in any manner whatsoever; preventing and prohibiting them from continuing using,

alienating, possessing, annoying, disturbing, and occupying Company premises; including possessing in any manner whatsoever Company properties including Motor Vehicle, Registration number T 440 DFA Land Rover Defender, and surrender the ignition keys to the 1st and 2nd Petitioners, and preventing them from exploiting, applying, making, offering for sale, selling and/or using any methodology and process to use the Company’s properties for any commercial purposes or gain, and 10 from making advertisements in any social media platforms including booking.com and Instagram and in respect of the Company’s business within the jurisdiction of the United Republic of Tanzania, or elsewhere pending the final determination of the main suit. The application is brought under section 68(e), 95, and Order XXXVII Rule 2(1) and Rule 4 of the CPC. It is accompanied by the affidavit affirmed by Saidi Hassan Kivuyo, the Applicants' advocate. Reciprocity, the first respondent, filed a counter affidavit with facts deposed and sworn by Mr. Linus Macha, the holder of Emmanuel Philip Kutta's power of attorney. In the counter affidavit, the respondent denied the allegations. However, he admitted there had been a misunderstanding with the applicants about their business caused by their ill motive to advertise the Coca-Cola drinks as spurious, contrary to the MEMARTS. He added that the applicants sold the

brick machine independently, and the accrued money was used to install the electricity on their premises. The goods or items in the container belong to him because he is the consignee. It is also his assertion that he saved the 2nd applicant when he was about to drown at sea, and as a result, she has been taking care of him and his family. 11 During the hearing, Mr Kivuyo argued and reiterated that he adopted the affidavit's contents. According to him, the applicant's claims are based on unfair prejudice against the company's management, the 2nd respondent, on matters related to fraud in purchasing land for the company, misappropriation of funds, and severe misuse of the company's capital or investment money from the applicants, loss of properties belonging to the company suggested theft and dishonesty. He pointed out that the applicants, the sole investors, and the company financier can suffer irreparable loss if the application is not granted. The counsel cited the case of Dangote Cement Company Limited, where it was held that a temporary injunction is granted to prevent the ends of justice from being defeated, as stipulated under section 68) (e) of the CPC); and that the preconditions to the grant of the temporary injunction are the existence of serious questions to be tried, a demonstration that the applicant stands to suffer irreparable loss, and proof of hardship or

mischief sustained by the applicant. Conversely, the respondent, through Mr. Linus Macha, adopted the contents of the counter affidavit sworn by Mr. Emanuel Kutta. He said the 12 allegations posed by the applicants are not valid. He asserted that the applicants are not sole investors. The 1st respondent bought the plot amounting to Tshs. 60,000,000/- from Stella Happo Bukeni. He also invested his efforts, time, and preparation for the farms and witnessed other farm purchases. The applicants wanted to do business differently from the ones registered in the MEMARTS. The applicants wanted to damage the Coca-Cola business through advertisement, contrary to the law. The applicants even used forgery to procure fake permits. The RECEIPTS Payments are present. The brick machine was sold and fetched TSH. 10,000,000/= to install the power on the premises. The equipment alleged to be stolen are the properties of the 1st respondent. According to him, no fraud was committed, and they always cooperated with the 1st respondent to take money from the company account and develop the properties. The 2nd applicant and 1st respondent were signatories to the account of the 2nd respondent. Therefore, there was no dishonesty among them. The parties live together on the suit premises; no threat is posed to the applicants. 13 He prayed to the court to disregard the allegations and to allow the

parties to continue living together on the same premises. Mr. Kivuyo rejoined that the applicants have taken steps to report the fraud and misappropriation of funds at Kigamboni Police Station, which issued them with RB NO. P1/KGM/CID/PE/03 of 2024. Therefore, the allegations are valid. He contended that the claim that the respondent injected 60 million to buy the land was false. The alleged land is in the company name and not in a personal capacity. He said the money for the land purchase was paid by the 1st applicant and injected by the 2nd applicant into the 1st respondent's bank account (CRDB). His account was used because the company had no bank account at that particular period. Additionally, the allegations that the company wanted to deal with business contrary to MEMARTS are untrue, and the issue of making fake permits has no basis. The licenses were wrongly stamped by Migration themselves. Later, they issued another permit, and they have a valid visa to live here in Tanzania. Nothing was sold in consultation with the applicants. How the properties were taken and sold and who sold them was not part of the applicant's consent. See items in paragraphs 10 and 11 of the affidavit. The 14 applicants have no idea if the money from the sale was used to install the electricity on the premises. Paragraphs 12, 13, 14, 15, and 18 of the affidavits contain dishonest allegations.

Therefore, the applicants' shares are diminishing in value. The first respondent is still the company's capital for his benefit. Annexures to the counter affidavit are irrelevant in the application and main case. The fact that his name appears in the bill of lading has no basis or date. The items in the containers belong to the applicants. He did not pay for the transportation of the containers. The first respondent is taking advantage of the fact that he was involved in receiving the items from the UK. Counsel insisted that it is hazardous for them to live in one compound. The first respondent has degraded the applicants. The applicants have no access to the TRA companies account or the BRELLA account. They are denied access to water and other basic necessities. Georges, C.J., enunciated the principles that govern the grant of a temporary injunction in Atilio v. Mbowe (1969) HCD 284. These principles are the existence of a serious question of facts or triable issues, the possible existence of irreparable loss that needs to be protected by the court, and the 15 fact that, on the balance of convenience, the plaintiff is likely to suffer more significant hardship and mischief if the injunction is withheld. As in this application, the applicants must demonstrate, through sworn deposition, that their rights can be addressed through the injunctive order, failure of which may result

in irreparable loss as the subject matter of the claim is under any threat that may lead to dissipation in value or its existential form. This remarkable holding was stated in the case of Agricultural Produce Market Committee v. Girdharbhai Ramjibhai Chhaniyara; AIR 1997 SC 2674. In our jurisdiction, the grant of a temporary injunction is predicated upon the applicant meeting the conditions set out in the celebrated decision in Atilio v. Mbowe (supra). The principle in Atilio v. Mbowe, as splendidly emphasized in the subsequent decisions of this Court and the Court of Appeal of Tanzania, is that all of those conditions must be cumulatively met before such a grant can be considered. One such decision is the holding in the Court of Appeal of Tanzania in Abdi Ally Salehe v. Asac Care Unit Ltd & 2 Others, CAT-Civil Revision No. 3 of 2012 16 (unreported); owing to its mighty significance, I find it apt to reproduce part of the excerpt quoted by the learned counsel. “…. in deciding such applications, the Court is only to see a prima facie case, which is one such that it should appear on the record that there is a bonafide contest between the parties and serious questions to be tried. So, the court cannot prejudice either party's case at this stage. It cannot record a finding on the main controversy involved in the suit; nor can genuineness of a document be gone into at this

stage...” While dealing with issues of a similar nature, Hon. Ismail, J., as in the case of Jitesh Jayantilal Ladwa Versus Houses and Homes Limited And 5others, Misc. Civil Application No. 97 Of 2022(HCT-Unreported) had this to say; “The Court’s view at this stage is to assess if there exists a bonafide contest between the parties, call it a prima facie case, and that there is a serious question to be tried. In my unflustered view, the claims of unfair prejudice raised in the petition are such a contest. It is bonafide and serious and falls 17 in the mold of the first principle in the Atilio v. Mbowe (supra)”. My view also beds well with the commentary made by authors of Sarkar in Sarkar on the Code of Civil Procedure, 10th ed., Vol.2 p.2011, wherein the following remarks were made: “In deciding an application for an interim injunction, the court is to see only prima facie case, and not to record finding on the main controversy involved in the suit prejudging issue in the main suit, in the latter event the order is liable to be set aside.” [Emphasis added] After examining the affidavit and counter-affidavit and the respective parties' submissions, I profoundly believe that the prima facie case, as one of the vital ingredients in granting the temporary injunction, has been established. It is undoubtedly demonstrated on the record that the 1 st applicant has invested money in

establishing a viable tourist business between the parties, and their initial agreement is expressed in annexture P-1. The 1st respondent acknowledges in his counter affidavit that the 1st applicant has been supporting him and the family financially after he had 18 saved her from drowning at sea. On the other hand, he denied all allegations against him, stating further that their dispute emanates from his refusal to accept a proposal from the applicants for the company to advertise that Coca-Cola is a poisonous drink. He also refused the allegations that he had disposed of the company's assets without the applicants' consent and offered no accountability for the sale. In his counter affidavit in paragraph 9, the applicant only submitted a receipt for purchasing spare parts of the motor vehicle T256 DQG valued at Tshs. 4, 430,000/=, and the applicants themselves sold the brick machine. There is no explanation on his side as to whether other assets allegedly disappeared. Given the above, there is a bonafide contest between the parties. Based on the above, I am satisfied that, looking at the depositions in the affidavit, the application has met the threshold requisite to trigger the exercise of the Court’s discretion to grant temporary restraint orders against the respondents. However, the prayers sought in the chamber summons supporting this application resemble the prayers set

out in the main application, application No. 10989 of 2024. For instance, the prayer that the respondent, his agents, and workers be restrained from possessing in any manner whatsoever Company properties, including Motor Vehicle, 19 Registration number T 440 DFA Land Rover Defender, and surrender the ignition keys to the 1st and 2nd Petitioner, or elsewhere pending the final determination of the main suit. The prayer that the respondent should be restrained from continuing to use and occupy Company premises, as well as restraining him from dealing with the first respondent's affairs pending the final determination of the primary matter, all these prayers cannot be granted at this stage as granting them will be determining the main suit the act that is prohibited by the law see the case of Abdi Ally Salehe v. Asac Care Unit Ltd & 2 Others, (supra). Based on the reasons above, I will therefore grant the prayer for injunction as follows; (1) The 1st Respondent is ordered to involve the applicants in managing the company's affairs and ensuring the company’s affairs are conducted. Decisions are reached per the memorandum and articles of the company's association, pending the final determination of the petition. (2) The 1st Respondent, his agents, assignees, workmen, or any other person acting on his behalf shall not operate and deal with the Company Properties, including Motor

Vehicle, Registration 20 number T 440 DFA Land Rover Defender without the consultation and consent of the applicants ERROL LLOYD BAILEY and PHILIPPA SMITH pending final determination of the petition. (3) The 1st Respondent, his agents, assignees, workers, or any other person acting on his behalf are prevented from exploiting, applying, making, offering for sale, selling, and using any methodology and process to use the Company’s properties for any commercial purposes or gain, and from making advertisements in any social media platforms including booking.com and Instagram and in respect of the Company’s business within the jurisdiction of the United Republic of Tanzania, or elsewhere pending final determination of the petition. Consequently, the application is granted to the extent explained above. Costs to be in the cause. Order accordingly.

MWANGA J JUDGE. 21 13/11/2024 COURT: The ruling was delivered at Dar es Salaam on November 13, 2024, in the presence of Said Kivuyo, counsel for the applicant and 1st Respondent, in person.

MWANGA

JUDGE 13/11/2024 22