MILLICOM T N

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 81 OF 2015 MILLICOM TANZANIA N.V.................................. PLAINTIFF VERSUS GOLDEN GLOBE INTERNATIONAL SERVICES LIMITED............................... 1s t DEFENDANT REGISTRAR OF COMPANIES.................... 2nd DEFENDANT RULING Mansoor, J: Date of Ruling- 30th SEPTEMBER 2015 Millicom Tanzania N.V, a limited liability company incorporated under the laws of Curacao filed a case in this Court, Commercial Case No.81 of 2015 against Golden Globe International Services Limited and the Registrar of Companies, 1 for a declaration that Millicom Tanzania N.V is the owner of 64,229 shares in MIC Tanzania Limited, and as against the Registrar of Companies for an order to expunge from the records maintained at the registry by removing therefrom any document or materials or entries which purport to show Golden Globe International Services (the 1st defendant herein) as the shareholder in MIC Tanzania Limited . MIC Tanzania Limited is a limited Liability company registered in Tanzania. Plaintiff annexed the share certificates in its plaint. According to the share certificates attached to the plaint as Annexure MTNV-1 the shareholders of MIC Tanzania Limited are as follows: o Share Certificate No. 1 for 29,101 ordinary shares issued to Millicom (Tanzania) N.V on 8th November 2005; o Share Certificate No. 3 for 5,378 ordinary shares issued to Millicom (Tanzania) N.V on 15th February 2006, and, o Share Certificate No. 5 for 29,750 ordinary shares issued to MIC Tanzania N.V on 18th June 2015. Thus, as per the Share Certificates the shareholders of MIC Tanzania Limited are Millicom Tanzania N.V holding 34,479 ordinary shares, and MIC Tanzania N.V holding 29,750 ordinary shares. 2 The Share Certificates attached to the plaint shows a contrary position to what is pleaded in paragraph 5 of the plaint, where the plaintiff, Millicom Tanzania N.V states, and I quote: “the plaintiff is the owner o f 64,229 shares of THz 25,000 each in the capital o f MIC Tanzania Limited, , a limited liability company incorporated under the laws o f Tanzania and having its registered office at Derm Complex, Plot no. 11 Block 45A, New Bagamoyo Road, P.O. Box 2929, Dar es Salaam, Tanzania (“the Company”) Again, Annexure MTNV-2 to the plaint is an extract from the Register of Members of MIC Tanzania Limited, which shows the history of the allotment of shares and transfer of shares in MIC Tanzania Limited, it shows as follows: o On 3/08/2000 MIC Tanzania N.V was allotted 19,649 ordinary shares and a Transferor Folio No. 3 was cancelled; o On 4/02/2004 MIC Tanzania N.V was allotted 8,620 ordinary shares and a Transferor’s Folio No. 2 was also cancelled. o On 8/11/2005 MIC Tanzania N.V was allotted 29,101 shares numbering from 00001 to 29101; 3 o On 23/02/2006 MIC Tanzania N.V was allotted with 5,378 shares numbering from 29102 to 34479; o On 21/12/2010 MIC Tanzania N.V was allotted with 29,750 shares numbering from 34,481 to 64,230. o Shai Holding S.A is also shown as the shareholder holding 1 share numbering from 34480 to 34480. Thus, from the extract of the Register of Members the shareholders in MIC Tanzania Limited are: • MIC Tanzania N.V holding 64,229 shares; • Shai Holding S.A holding 1 share. The records in the Register of Members also reflects that the plaintiff herein is not the Shareholder in MIC Tanzania Limited but the shareholder is MIC Tanzania N.V. holding 64, 299 shares as at 12/12/2010 but the Share Certificate was issued to MIC Tanzania N.V on 18th June 2015 for only 29,750 shares. Again, Annexure MTNV-3 to the plaint is a Report by the Registrar of Companies dated 8th June 2015 showing that the Share Capital of MIC Tanzania Limited is THz 2,500,000,000 divided into 100,000 shares of THz 25,000 each, and the shareholders of MIC Tanzania Limited as at the date of the Report are : 4 • Golden Globe International Services Limited holding 34,479 shares; • Shai Holding S.A holding 1 share. Again, Annexure MIC-1 to the Reply to the written statement of defense are copies of the Annual Returns for the years ended 31st December 2012, 31st December 2013, and 31st December 2014 all showing that the shareholders of MIC Tanzania Limited are: • Millicom Tanzania N.V holding 64,229 shares; • Shai Holding S.A holding 1 share. Again, there is a Ruling of Justice Kalegeya dated 20/11 /2009 in Civil Case No. 306/2002 while determining the objection proceedings filed by MIC Tanzania N.V and Ultimate Communications Limited (attached to the Reply to the written statement of defense by the plaintiff as annexure MIC-2), confirming that MIC Tanzania N.V is the shareholder of 34,479 shares in MIC Tanzania Limited, and the shareholder in MIC Tanzania Limited is not Millicom Tanzania N.V. I have reproduced, and given the summary of the shareholding structure of MIC Tanzania Limited as pleaded by the plaintiff in the plaint, and in the Reply to the written statement of defence, and its annexures so as to establish the status of Millicom Tanzania N.V as the shareholder of 34,249 shares or 5 64,229 shares in MIC Tanzania Limited as pleaded by the plaintiff, before indulging into disposing the preliminary objections raised by the defendants. The pleadings are indeed very confusing as it is not clear whether Millicom Tanzania N.V is the shareholder of MIC Tanzania Limited holding 64,229 shares as pleaded in paragraph 5 the plaint, and as reflected in the Annual Returns of 2012, 2013 and 2014 or whether the shareholder in MIC Tanzania Limited is MIC Tanzania N.V who is allegedly holding 64,229 shares as shown in the Register of Members or 34,480 shares as shown in the Ruling of Justice Kalegeya made on 20/ 11/2009 or 29,750 as shown in the Share Cerificate No. 5 attached as an annexure to the plaint. The Share Certificates attached to the plaint also do not give a clear picture of the shareholding structure of MIC Tanzania Limited, according to share certificates Millicom Tanzania N.V is holding only 34,479 shares and MIC Tanzania N.V is holding only 29,750 shares contrary to what it is pleaded in paragraph 5 of the plaint. There is nowhere in the pleadings by the plaintiff or the annexures attached to the plaintiff’s pleadings showing that there was any transfer of shares from MIC Tanzania N.V to Millicom Tanzania N.V entitling Millicom Tanzania N.V to file this suit and representing itself as the shareholder of MIC Tanzania Limited. There is also no record annexed or pleaded in the plaint showing that MIC Tanzania N.V changed its name to Millicom Tanzania N.V. It is not clear by reading the plaint and its 6 A? annexures as to whether Millicom Tanzania N.V has a locus standi and consequently a valid cause of action to file this case against the current respondents claiming to be the shareholder o f 64,229 shares in MIC Tanzania Limited. Nevertheless, as I have not moved by the parties to determine the locus standi of the plaintiff to institute te case, I shall not determine that issue at this stage of the suit, but only made an observation regarding it. I shall therefore, assume that Millicom Tanzania N.V is the shareholder of 64,229 shares in MIC Tanzania Limited, as alleged in para 5 of the plaint for purposes of determining the 1st point of preliminary objection raised by the 1st Defendant regarding the cause of action, and the jurisdiction of this court to entertain the suit. Together with the filing of the written statement of defense, the 1st and the 2 nd defendants have filed the preliminary objections on the point o f law. The objections raised by the 1st Defendant are as follows: 1. That the plaint does not disclose any cause o f action against the First Defendant, or at all; 2. That paragraph o f the plaint 12 (sic) does not disclose sufficient facts fo r the purposes o f the Court’s jurisdiction to entertain the suit; 7 3. The Honorable Court is not the Court of the lowest grade to entertain the suit; and 4. The suit is incompetent for being commenced by a plaint without Board Resolution annexed thereto. The 2nd Defendant ‘s objection is that “the plaintiff’s allegations at paragraph 12 of the plaint specifically regards cause of action which is clearly lacking against the 2nd defendant shall pray by way of preliminary objection that the suit be struck out with costs. ” Before I determine the preliminary objections raised by the defendants, it is pertinent to give the brief history of the matter. As pleaded in paragraph 9 of the plaint, there was a case at the High Court, Civil Case No. 306 of 2002 between James Allan Russel Bell (plaintiff/decree holder) vs MIC UFA Limited (1st defendant/1st judgement debtor), Millicom International Cellular S.A (2nd defendant/2nd judgement debtor and MIC Tanzania Limited (3rd defendant/3rd judgment debtor). James Allan Russel Bell obtained a decree against the judgement debtors. James Allan Russel Bell applied for attachment and sell of the shares in the 3rd Defendant’s company i.e. MIC Tanzania Limited. According to Annexure MIC-2 to the Reply to the written statement of defense, MIC Tanzania N.V and Ultimate Communications Limited filed objection proceedings under Order 21 Rule 57 and prayed for an order that the attachment of 80% of the shares in MIC Tanzania Limited be raised and the order for sale of the said shares be set aside. This application was successful. The Ruling was delivered by Hon. Judge Kalegeya on 20/11/2009. It was established in this Ruling that MIC Tanzania N.V was holding 84% of the shares in MIC Tanzania Limited, and the total shares issued in MIC Tanzania Limited as at the date of the Ruling were only 34,480. The pleadings reveals that 34,479 shares held by Milicom Tanzania N.V in MIC Tanzania Limited were auctioned by the Court Broker, purchased and hence acquired by Golden Globe International Services Limited in execution of a Decree of the High Court of Tanzania, at Dar es Salaam in Civil Case No. 306/2002. The public auction was conducted by the Court Broker on 5th November 2014. The Certificate of Sale was issued by the Court on 10th November 2014. The Registrar of Companies, the 2nd defendant herein was asked by the District Registrar of the High Court under a letter Reference No. GGI/MIC/03.11/14 dated 17™ November 2014 to effect the transfer of 34,479 shares from Millicom Tanzania N.V to Golden Globe International Services Limited, and the Registrar of Companies complied. 9 Now this suit is brought by Millicom Tanzania N.V claiming to be the shareholder of 64,229 shares in MIC Tanzania Limited requiring this Court to make a declaration that Millicom Tanzania N.V is the owner of those shares in MIC Tanzania Limited, and also an order against the Registrar of Companies requiring it to expunge from its records and removing therefrom any document or materials or entries which purports to show that Golden Globe International Services Limited as the shareholder in MIC Tanzania Limited. As it can be shown from the above brief history, there is an unexplained gap between the period 20/11/2009 when Justice Kalegeya held that the shares belonging to MIC Tanzania N.V in MIC Tanzania Limited were un-attachable in execution of a Decree of a Civil Case No. 306 of 2002 and the period of 5th November 2014, when the Public Auction was conducted whereby the 34,479 shares of Millicom Tanzania N.V in MIC Tanzania Limited were attached and sold in execution of the Decree of the High Court in Civil Case No. 306 of 2002. There is also no explanation in the pleadings of whether Millicom Tanzania N.V, the plaintiff herein is also known as MIC Tanzania N.V, or there was a change of name from MIC Tanzania N.V to Millicom Tanzania N.V or there was a transfer of shares from MIC Tanzania N.V to Millicom Tanzania N.V; 10 There is again no explanation or averments in the pleadings, apart from the Ruling of Justice Kalegeya (in which Ruling the plaintiff was not a party thereto) stating that the Decree issued by the Court in Civil Case No. 306 of 2002 were against MIC UFA Limited and Millicom International Cellular S.A, only and not against MIC (TZ) Limited, who was the 3rd defendant in the suit. My reading in the Decree of the Court shows that the Decree was issued against all the three defendants jointly and severally. The Decree of the Court in Civil Case No. 306 of 2002 reads as follows: IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 306 OF 2002 JAMES ALAN RUSSELL BELL.................................. PLAINTIFF VERSUS MIC UFA LTD.......................................................................1s t DEFENDANT MILLICOM INTERNATIONA CELLULA S .A .....2n d DEFENDANT MIC (TZ) LTD....................................................................... 3r d DEFENDANT DECREE The plaintiff above named prays for judgement and decree against the defendants jointly and severally as follows: (a).......... (b).......... ( c ) ........... (d).......... (?)........... (f)............ This case coming on 13th day of May 2005 before Hon. JUSTICE IHEMA for judgment, in the presence of Mr. MAFURU Learned Advocate for the 3rd defendant also holding brief of Mr. Mgare for the plaintiff and in the absence of 1st and 2nd defendants to be notified. THIS COURT DOTH HEREBY ORDER The plaintiff is granted a default judgement pursuant to Oder VIII Rule 14 (1) of the Civil Procedure Code, 1966 as amended as prayed. Given under my hand and the seal of the Court this 10th day of June 2005. 12 Plain reading of the above reproduced Decree of the Court is that the Decree was issued against all the three defendants jointly and severally. Now coming to the preliminary objections raised by the defendants in this case, and also assuming that the plaintiff is the registered owner of 34,479 shares in MIC Tanzania Limited, I shall say the following. It should be noted and as noted herein above that according to the Ruling of Justice Kalegeya delivered on 20/11/2009 the registered owner of 34,479 shares in MIC Tanzania Limited before the public auction was MIC Tanzania N.V. MIC Tanzania N.V participated fully when the shares were attached in 2009, and it successfully lifted the attachment through an application made under 0.21 Rule 57 of the Civil Procedure Code. The 1st defendant states that it is the bonafide purchaser and the plaintiff has no cause of action against it. The first defendant states that this suit is an abuse of the court processes and that no valid cause of action can be conceived or founded on such gross abuse of court process. The 1st defendant also states that throughout the plaintiff’s averments in the pleadings there is no mention of any wrong doing or breach of any duty or obligation by the 1st defendant or any of the defendants, and that no suit can be brought after the sale has become absolute whose effect of the suit can affect the rights of the bonafide purchaser. The 1st defendant submitted that the plaintiff’s case and the reliefs sought are brought as a distinct platform or a launching pad for undoing the execution processes of the court which issued the decree i.e. Civil Case No. 306 of 2002. The 1st defendant submits further that there cannot be a cause of action in a new suit, and this Court cannot in law make and issue order(s) whose legal effects are to undo the judicial processes of the same court in another court. In short the 1st defendant is also objecting the jurisdiction of this Court. He said if this court shall issue a declaration that the 34,479 shares belongs to the plaintiff, then there will be two parallel decisions of this same court in deferent cases, whereby as per the sale conducted in execution proceedings of Civil Case No. 306 of 2002 the shares were already sold to the 1st defendant, the sale became absolute, and a certificate of sale was already issued, and again, if there shall be a declaratory order of this Court declaring that the 34,479 shares sold in execution of a Decree in Civil Case No. 306 of 2002 belongs to the plaintiff herein, then the High Court would be giving two contradicting decisions. The Counsel for the 1st defendant referred me to the case of Shirika la Usafiri Dar es Salaam Limited & National Microfinance Bank Limited vs Brands International Limited & 2 others, Consolidated Misc. Cause No. 37 and 43 of 2014 (unreported) where at page 19, Hon Judge Makaramba while approving what was said in the case of Omari Yusufu vs Rahma Ahmed Abdulkadir (1987) T.L.R 169, he also said that the rights of a bonafide purchaser must be secured. In the case of Omari Yusufu vs Rahma Ahmed Abdulkadir (1987) T.L.R 169, it was held that: “A bonafide purchaser who is a stranger to the decree does not lose his title to the property by the subsequent reversal or modification of the decree” Counsel for the 1st defendant also submitted that this present suit is a disguise and any decree or order that will be issued in contravention of the Order and Certificate of Sale in the former matter will have no legal force as the latter suit is pleaded in the way of seeking to set aside or nullify the order and certificate of sale issued in the former suit. On this the counsel for the 1st defendant referred me to the decision of the Court of Appeal, the case of Meis Industries Limited vs Mohamed Enterprises (T) Limited & 2 others, Civil Ref No. 2 of 2011, where it was observed as follows: “on 30th November, Prf Juma J, issued an injunction Order in Civil Case No. 110 of 2010 in respect of Account No. 004-200-000-2216 of the judgement debtor held at the Tanzania Investment Bank, restraining parties from withdrawing monies from the said account. But prior to that date that is on 27th October 2010 Kama J, in Civil \ . 15 Case No. 124 of 2010 had already issued an execution Order, interalia, for the judgement debtor to pay an amount o f US$ 20,000,000. We wonder whether the respondent herein had no knowledge of that order of Kama J. In view of that Order Kama J, which came first, obviously the Order of Juma J, had no legal force as both are judges of the High Court. ” The Counsel for the 1st defendant continued submitting, quoting Black Law Dictionary , 17th Edition at page 214, that “matter, such as the present one, whose reliefs, if granted would have no legal force, cannot give rise to a valid cause of action, and strictly speaking, this Honorable Court is not legally enjoined, and this lacks jurisdiction, to entertain this matter in as much the reliefs sought, if granted, would be an affront to the Certificate of Sale and Order issued by the District Registrar in execution proceedings of a former suit." The Counsel also referred me to the case of Mohamed Enterprises (T) Limited vs Masoud Mohamed Nasser , Court of Appeal, in Civil Application no. 33 of 2012 (at page 14-15), where the Judges of the Court of Appeal had this to say: “....there should be no room open to the High Court and Courts subordinate thereto whereby one judge would enter judgement and draw up a decree (thus bringing a suit to a finality) only to find another judge of the High Court soon thereafter setting aside the said judgement and decree and substituting thereof with a contrary judgement and decree in a subsequent application. To do so in our considered opinion, amount to gross abuse o f the court process. Such abuse should not be allowed to win ground in tis jurisdiction. ” In answer to the above submissions, the Counsel for the plaintiff submitted that the effect of non-disclosure of a cause of action in a plaint is not to dismiss or strike out the suit, rather it is the rejection of the plaint as clearly provided in Order VII rule 11 (a) of the Civil Procedure Code, Cap 33 R: E 2002. The Counsel continued arguing that the plaint does disclose the cause of action, and defined the cause of action to mean that every fact that would be necessary for the plaintiff to prove in order to support his right to the judgement of the Court. Quoting D. P. Mullah, the Code of Civil Procedure, 1908 3rd Edition, pg. 90 the Counsel for the plaintiff said “Cause of action comprises every fact which is necessary to be proved to entitle the plaintiff to a decree. ” The counsel submitted that in order to decide whether or not a suit discloses a cause of action, one looks only at the plaint and attachments and assumes that the facts alleged therein are true. The Counsel referred me to the case of Court of Appeal, in Jeraj Sheriff & Co. vs Chotai Fancy Stores (1960) E.A 374 at pg. 375, the 17 case of Attorney General v Olouch (1972) E.A 392 at pg. 394 and the Court of Appeal decision John M Byombalirwa vs Agency Maritime Internationale (Tanzania) Limited (1983) T.L.R 1. The plaintiff counsel stated that paragraph 6, 7 and 9 of the plaint give particulars of the facts asserting the rights of the plaintiff and that those rights have been violated by the defendants. And that the plaint may disclose a cause of action without containing all the facts constituting the cause of action provided that the violation by the defendant of a right of the plaintiff is shown. On this the Counsel for the plaintiff refered me to the case of Auto garage & others vs Motokov (No. 3) (1971) E.A 514. The Counsel for the plaintiff in his oral submissions distinguished the case o f Rahma Abdulkadir cited in the case decided by Hon Makaramba J and stated that the stage at which the 1st defendant will be able to make a case that it is a bonafide purchaser whose title cannot be disturbed has not been reached, and that the submission regarding that case requires an analysis of evidence at trial, and that the cases cited by the Counsel for the 1st defendant does not support the objection that the plaint does not disclose the cause of action. On abuse of the court process because there is no valid cause of action, the Counsel for the plaintiff submitted that whether 18 there is a valid cause of action or not, this is to be determined at trial, and on jurisdiction of the Court the Counsel says that this also has to be determined on trial and not at the stage of preliminary objection. He also said that issues of whether or not the shares were acquired properly by the 1st defendant during public auction and whether the execution was proper, these are matters to be litigated during trial. The Counsel submitted that the Counsel for the 1st defendant should be prohibited to introduce his defense at this stage of the suit. The Counsel for the plaintiff submitted orally that Order 21 Rule 76 of the CPC is applicable only when there is an irregularity in public auction, and in this case there is a certificate of sale which shows that the sale was absolute, and that rule requires that the plaintiff who relies on order 21 Rule 76 has to show to the court that he has suffered pecuniary damages and injury in order to pursue the remedies available in Rule 76 of Order 21 of the CPC. The Counsel submitted that the only injury suffered by the plaintiff is the proprietary rights in the shares. That the plaintiff still has the share certificate but in the records of the Registrar of Companies the plaintiff is not reflected at all as the shareholder in MIC Tanzania Limited. The Counsel admitted that he did not file this present suit under Order 21 Rule 76 of the CPC as he cannot point out any fraud or wrong committed by the Court or purchasers in the auction, as the plaintiff did not participate in the auction or the entire execution processes. 19 I have read extensively, and carefully, heard and considered the parties pleadings, the written skeleton arguments of both parties as well as the oral presentation of their arguments in support and in opposing the 1st objection. The first objection is actually on jurisdiction of this court to entertain this suit whose cause of action emanated from execution processes of a Decree of the High Court of Tanzania in Civil Case No. 306 of 2002. This objection is paramount and it need to be addressed first before trial. The Court needs to be satisfied that it is clothed with jurisdiction to entertain and determine this suit, before parties are allowed to proceed with trial. The question of jurisdiction does not require analysis of evidence as submitted by the Counsel for the plaintiff. The question of jurisdiction must be pleaded in the plaint as required by the rules of the Civil Procedure Code. The plaintiff is given the duty to plead the jurisdiction of the Court. The Plaint lacks this very important fact, and therefore in the absence of the pleaded jurisdiction of the subject matter, this Court cannot assume jurisdiction, it is very dangerous to assume jurisdiction, jurisdiction is a fundamental aspect affecting competence of courts to try an action and Court must be satisfied that it has jurisdiction. The question to be determined by this Court at a preliminary stage in the present suit, whose reliefs, if granted would have the effect of setting aside the sale of 34,479 shares sold at 20 public auction in execution of a Decree of the High Court in Civil Case No. 306 of 2002, is this Court clothed with jurisdiction to issue an order which would render a decision of a court which tried a former suit of no legal force. There is no dispute that the cause of action of this present suit emanated from the sale of 34,479 shares allegedly belonging to the plaintiff in MIC Tanzania Limited. These shares are immovable property in terms of order 21 of the Civil Procedure Code. The sale of any property immovable in execution of a decree for money is governed by the provisions of Order 21, Rule 53 to Order 21, Rule 101 of the CPC. These are the specific provisions for sale and for setting aside the sale. Section 38 of the CPC relates to questions to be determined by the Court executing the decree. It contemplates that all questions relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree. Section 38 of the CPC is applicable to parties to the suit only. However, a purchaser of property at a sale in execution of a decree is deemed to be a party to the suit in which the decree is passed. Therefore since MIC Tanzania Limited was a party to Civil Case No. 306 of 2002 whose shares have been sold in execution, if it needed any question to be determined by the court relating to execution, discharge or satisfaction of the 21 decree, it could have filed an application to that effect before the Court executing the Decree, subject of course to limitations. For the purposes of section 38 of the CPC, the defendant against whom a decree was issued and a purchaser at a sale in execution of the decree are parties to the suit. It is clear that sale of shares in execution of a decree and registration of the shares by the Registrar of Companies in compliance with the Order of the Deputy Registrar of the High Court are considered to be questions relating to the execution, discharge and satisfaction of the decree within the meaning of section 38 of the CPC. Therefore, setting aside such sale or questioning the validity of the sale cannot be done by way of a fresh suit. In any case there is specific provisions under Order 21, Rules 87 and 88 of the CPC to set aside the sale. Therefore, a sale cannot be set aside under a new suit ignoring completely the provisions set forth in Order 21 of the CPC and Section 38 of the CPC. Doing that under a separate new suit would amount to an abuse of the process of the court as it was clearly states in the case of Meis Industries Limited vs Mohamed Enterprises (T) Limited, and the case of Mohamed Enterprises (T) Limited vs Masoud Mohamed Nasser .(supra). Under the provisions of Order 21 Rule 76, any person sustaining injury by reasons of irregularity in publishing or conducting the sale of movable property may institute a fresh suit. However, in the present case the plaintiff has admitted in his submissions that he cannot point out any irregularity in publishing or conducting the sale of the said shares during the auctioning, thus he cannot invoke the provisions of 0.21 Rule 76 of the CPC. He also did not mention any wrong in publishing or conducting the sale by the court to enable the plaintiff to institute a suit for compensation or for recovery of the shares from the defendants, under 0.21 Rule 76 of the CPC. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor (MIC Tanzania Limited of which the plaintiff alleges to be the shareholder) must in my view be determined by the executing Court and not by another different Court by way of a separate suit. Therefore, the question of validity of sale, in my opinion, and as soon as the judgment-debtor's property sold in auction and the decretal amount realized by the decree-holder, the decree stands satisfied. In this present case the decree has been discharged and satisfied and the auction purchaser has been put in possession of the shares by the Registrar. Whether the sale was valid or not this is the question of satisfaction of the 23 decree and the same can be questioned by MIC Tanzania Limited (the judgement debtor) under Section 38 of the CPC. Millicom Tanzania N.V or MIC Tanzania N.V whoever is the shareholder in MIC Tanzania Limited cannot treat and separate itself from its company, and that a shareholder cannot be treated as a separate entity different from its company. Thus, in so far as the Company’s Liability to third parties arising out of a business transaction, or a suit (like in the instant case), a shareholder therein, to the extent of his shares therein cannot treat and separate itself from the company. The case of Solomon vs Solomon & Co. Limited (1897) AC, 22 (1895-9) All ER Rep 33, HL is of relevancy in this case. Again, Order 21, Rule 95 of the CPC speaks about resistance or obstruction, possession of immovable property, and under sub-rule (2), the Court is called upon to adjudicate upon the application in accordance with the provisions therein contained. Even under this section a person who is facing resistance or obstruction of execution of a decree is required to make an application for removal of obstruction before the executing court and not by a separate suit. In this case neither the plaintiff nor MIC Tanzania Limited (the 3rd judgement debtor in the original Decree had applied for setting aside the sale under Order 21, Rule 88 of the CPC. 24 None of the three judgement debtors had applied for setting aside the decree in the High Court or in the Court of Appeal, the decree was never reversed or set aside. Even if the decree was reversed or set aside, that would not have affected the sale as the sale was confirmed as absolute by the Court and the right of the auction purchaser could not be disturbed by such reversal. This was held in the case of Omari Yusufu vs Rahma Ahmed Abdulkadir (supra) where the Court of Appeal upheld that after issuing the Certificate of Sale to the auction purchaser, the sale becomes absolute and the sale must be confirmed notwithstanding the reversal of the decree for sale. On this I would import the decision of the Supreme Court in Kanthilal vs Smt Padma and Another ILR 1999 KAR 2114, Karl J 193 which held as follows: "If the purchaser were to lose the benefit o f his purchase on the contingency of the subsequent reversal o f the decree, there will be no inducement to the intending purchasers to buy at execution sale and consequently the property would not fetch its proper price at such sales, and the net result would be that the judgment-debtor would be the ultimate sufferer. This wise policy of protecting the title of the stranger purchaser, even though in any individual case it may work some hardship, is clearly conceived in the interest of the general body o f judgment-debtors so that purchasers will freely bid at the auction without any fear of later objection”. 25 I shall also import the wisdom of the Supreme Court of India in the case of Municipal Corporation of Delhi v Pramod Kumar Gupta Supreme Court of India said, to the following effect: "An examination of the relevant provisions of Order 21 of the Code of Civil Procedure will show that the title to the property put on auction sale passes under the law when the sale is held. The owners and certain other interested persons are afforded opportunity under the Code to make a prayer for setting aside the sale on enumerated grounds, and after all such matters are disposed of without disturbing For the reasons already given and the decisions noticed, it must be held that unless a stranger auction-purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Civil Procedure Code makes ample provision for the protection of the interest of the judgment-debtor or third parties who feels that the decree ought not to have been passed against him or execution should not be levied against 26 it. On the facts of this case, it is difficult to see why the judgment-debtor or any other person such as the Plaintiff herein did not take resort to the provisions of Order 21, Rule 88 or Section 38 of the CPC and thus have the sale set aside. In view of the above facts and legal position, I have no hesitation to hold that the present suit is an abuse of the court process as if the relief sought in the plaint shall be granted, will have the effect of rendering the sale of shares in the execution of a decree of the High Court in Civil Case No. 306/2002 as nullified, and therefore the facts pleaded in the plaint cannot give rise to a valid cause of action, and therefore this Court is not legally enjoined and thus lacks jurisdiction to entertain the suit. This Court has no jurisdiction under Order 21 Rule 76 of the CPC to issue a decision which will have the effect of cancelling the sale certificate issued by the competent court of law, when there is no irregularity or fraud pleaded, and the sale certificate can only be cancelled by the court executing the decree in the manner and mode prescribed under the provisions of Order 21 Rule 88 and Section 38 of the CPC. The Counsel for the plaintiff was not able to point out in his plaint and submissions as to which provision of the law either in the rules of Order 21 of the CPC or the Companies Act, that empowers this Court to entertain this suit, whose effect would be to render the sale of 34,479 shares sold in execution of a Decree of the High Court in Civil Case No. 306 of 2002 invalid or of no effect. I hold this in line with the 27 holding of the decision of the Court of Appeal in the case between Mohamed Enterprises (T) Limited and Masoud Mohamed Nasser (supra), “that there should be no room open to the High Court and courts subordinates thereto whereby one judge would enter a judgement and draw a decree (thus bringing a suit to a finality) only to find another judge of the High Court soon thereafter setting aside the said judgement and decree and substituting therefore with a contrary judgement, and to do so amounts to gross abuse of the court process. This suit is therefore dismissed on the first ground of objection that the facts pleaded in the plaint cannot give rise to a valid cause of action in this suit, and thus the court is not properly enjoined, thus lacking jurisdiction to entertain it. Since the first objection suffices to dispose of the suit since it is on the jurisdiction of the Court, the rest of the objections shall not be considered. The suit is therefore dismissed with costs for this court lacks jurisdiction to entertain it. Suit dismissed with costs. DATED at DAR ES SALAAM this 1st day of October, 2015 28 MANSOOR JUDGE, 1st October 2015 29