peter claver bakilana the liqudatior tri tel t ltd in liqudation vs citibank t ltd 2005 tzhccomd 14 30 june 2005

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ESSALAAM MISC.COMM.CAUSE NO.6 OF 2003 IN THE MATTER OF THECOMPANIES ORDINANCE CAP.212 AND IN THE MATTEROF THE LIQUIDATION OF TRI TELECOMMUNICATION TANZANIA LIMITED BETWEEN PETERCLAVER BAKILANA (THELIQUIDATOR) TRI-TELECOMMUNICATION TANZANIA LIMITED (IN LIQUiDATION APPLICANT AND CITIBANK TANZANIA LIMITED RESPONDENT Mr. Peter Claver Bakilana, the Liquidator of Tri Telecommunication Tanzania Limited (in Liquidation) has filed an application under Rule 8(2) of the Companies (Winding Up) Rules 1929; Section 68(b) and 95 of the Civil Procedure Code 1966 and ex debito justitiae. The applicant is praying for several declaratory orders against Citibank Tanzania Limited, the respondent in this application. The declaratory orders are aimed at stopping the respondent from making further application aimed at halting the liquidation process. The applicant has also prayed for protective and preventive orders. He has asked this court to order the respondent to deposit into this court USD 40 million to secure the petitioner's rights and interests as well as to deposit USD1.8 million as security for costs already incurred. The application is supported by the affidavits of Peter Claver Bakilana and James Burchard Rugemalira. The application has been filed by F K Law Chambers, with Dr. Luoga Learned Counsel appearing. The respondent is represented by IMMMA Advocates and Mr. D. Kesaria Advocate. The affidavit of Peter Clover Bakilana is a very long one giving sequence of the events which have been taking place between the parties since the order for the winding up of TRITEL was given. The main complaint given by Mr. Peter Claver Bakilana is that throughout, the respondent has been a hurdle in the winding up process by filing a series of applications which ended up against the respondent. The applicant's opinion is that the applications were unmeritorious and frivolous and they were filed deliberately to defeat ends of justice. The applicant sees a possibility of this process continuing and that is why declaratory orders as well as preventive orders have been requested for as given in the chamber summons. The respondent seriously opposed the application. A number of preliminary points of objection have also been raised. Among them is the jurisdiction of this court to grant the prayers sought in the chamber application. Mr. Galeba Learned Advocate who argued the preliminary objection for the respondent, submitted that the court does not have jurisdiction to issue declaratory orders to stop the respondent from filing applications in court because that will infringe their Constitutional right. He submitted further that the court can not also issue a declaratory order that the right of the respondent to contest the decision of this court made on 12th June 2003 long ceased after the publication of the winding up petition and the consequential winding up order. Mr. Galeba submitted that issuance of such orders will violate the respondent's rights of access to justice and the right of appeal as enshrined in Article 13(3) and article 13(6)(a) of the Constitution of the United Republic of Tanzania. He said the rights are fundamental and the court has no jurisdiction to take them away from any individual or any party or any citizen. The court was referred to the decision of the Court of Appeal in Attorney General Vs Lohay Akonay & Another (1995) TLR80 where the Court of Appeal held that, any purported ouster of the jurisdiction of the ordinary courts to deal with any justiciable dispute is unconstitutional. As regards the prayer by the Applicant for deposit of USD 1.8 million being costs already incurred, Mr. Galeba said that there is no such procedure of enforcement of costs. He said the enforcement of costs is regulated by The Advocates Remuneration and Taxation of Costs Rules, 1991 - GN 515 of 1991. He submitted further that the majority of the applications were terminated by the Court of Appeal. Costs granted by the court of Appeal are only taxable by the Court of Appeal. On the prayer for deposit of USD40 million, Mr. Galeba submitted that the provisions of the law under which the application has been preferred relates to attachment before judgment. He made reference to Section 68{b) and Order 36 arguing that for an application for attachment to be successful, there must be in existence a pending suit between the parties. Since there is no pending suit, the prayer for deposit of USD40 million cannot be granted by this court. It was further submitted that the same prayer was made in the Court of Appeal but the Court of Appeal refrained from making a decision on the point. Mr. Gulabe argued that since the Court of Appeal did not make a decision on the point, the proper remedy for the Applicant was to prefer for a remedy in the Court of Appeal but not to come back to this court. There is no provision for filing the application in this court. The last point relates to the affidavit of James Burchard Rugemalira.ThesubmissionbyMr.Galeba is that the affidavit is not an affidavit in law as it only listsdown the prayers in the chamber summons and says nothing more in support of the application. In support of Mr. Galeba, Mr. Mujulizi submitted that the application raises issues in another proceedings which are inappropriate. He said the winding up rules contain sufficient remedy to cure any abuse of the process of the court which seems to be the underlying factor over this application. He said for each and every application filed in court, the respondent has the right to respond and object. In reply Dr. Luoga submitted that the application falls within the broad powers of the court to control the judicial process and ensure that the ends of justice are met. It was in this context that Section 68 of the Civil Procedure Code 1966 was invoked as it provides for supplemental proceedings that aim at preventing the ends of justice from being defeated. Dr. Luoga said since the application addresses vexations proceedings which are not unknown menace to judicial process and dispensation of justice, they deal with powers already vested in court. Dr. Luoga's opinion is that the preliminary points are all misconceived. On the prayers asked for, Dr. Luoga submitted that prayer one seeks to restrain the respondent from abusing the judicial process under the guise of exercising their rights to courts of law. As the applicants are already before the law when the applications are entertained, the court will be shown how the respondent engages in frivolity and abuse of the court process. It is at that point that the applicant will have an opportunity to address those concerns. Dr. Luoga's view is that the matter cannot be entertained at the level of the preliminary objection. He prayed for the dismissalof the first ground of objection. He asked the court to make a finding that a plea of contravention of right is substantive and cannot be taken as a preliminary point of objection. He made reference to Articles 12(3) and 26 of the Constitution and asked the court to make a further finding that the right of access to courts of law is not an absolute right. It requires a person seeking such access to follow procedures and not to abuse the right. As for the second preliminary point, Dr. Luoga submitted that prayer 5 seeks for an order for security for costs. The court is merely moved to examine the conduct of the respondent and if the court finds that it amounts to an abuse to grant a remedy by a deposit for costs. He said such an application merely seeks to secure good conduct by the parties before the court and prevents ends of justice from being defeated. He said it is not an application outside the jurisdiction of this court. He said the order sought is consequential and comes after the parties have been heard and cannot be taken as a preliminary point of objection. The submission by Dr. Luoga on the third preliminary point is that the argument by the respondent ties down with what he has already submitted. He said in supplemental proceedings such orders are discretionary. The court has to make an opinion and assesswhether it isjust and convenient to make any order to regulate the conduct of the parties before it. He said the court has wide powers under Section 68(e) and 95 of the Civil Procedure Code 1966. Prayer 4 relates to the deposit of USD40 million Dr. Luoga said the submissionmade is substantive and it would move this court to consider the question whether there is any legal basis to grant the prayer for the deposit. He said once that prayer is paused for consideration by this court, the matter ceases to be one for consideration by preliminary objection. As regards the argument that the matter was also raised in the Court of Appeal in Application No.3/2005 and so it is res judicata, it was submitted by Dr. Luoga that this point was not contained in the notice of preliminary objection. Besidesit is a substantive point which will move the court to consider the question why the point was not addressed. He said this cannot be done by way of a preliminary objection because the court needs to be appraised on the status of the prayer in the Court of Appeal. He said since the prayer was made as an alternative prayer and was not considered at all he could not from the Bar conveniently address the point without causing embarrassment. The response by Dr. Luoga on the preliminary objection touching on the affidavit of James Burchard Rugemalira is that an affidavit cannot be challenged by a preliminary objection. It is not a proper procedure. The proper procedure is to lodge an application for striking out the affidavit. He said the invitation to the court to read the affidavit at this stage falls outside the scope of a preliminary objection. The respondent applied to withdraw an objection in respect of the affidavit of Peter Claver Bakilana. Dr. Luoga joined issueswith the respondent, saying that the preliminary objection on this point was embarrassing for not detailing paragraphs of the affidavit containing arguments, opinion and conclusion. He prayed to the court to hold that all matters raised in the Preliminary Objection are not qualified to be entertained as preliminary objections. They are neither points of law nor do they raise jurisdictional issues.He prayed that they be dismissedwith costs. In brief reply Mr. Galeba reiterated what he said in his earlier submissionand Mr. Mujulizsupported him. My considered opinion is that the matters raised in the preliminary objection can be easily disposed of without wasting the court's time. My focus will be on one point and this is the jurisdiction of this court to grant the prayers made in the Chamber Application. As correctly pointed out by Mr. Galeba the Constitution of the United Republic of Tanzania Article 13 (6}(a) requires every person to be given a fair hearing. There is no way in which the court can pre determine an application which has not been presented before it. The court can only say that an application is frivolous or has no merit after going through it and made an assessmentof that application under the background in which it is brought before the court. This court sees no possibility of being in a position for granting the declaratory orders which the applicant is praying for. Granting such orders will amount to blocking their access to justice. The case of Attorney General V Lohay Akonay & Another (supra) cited by Mr. Galeba has no relevancy in this application. The court dealt with ouster clauses. In this application the court is being asked to block the respondents from making frivolous application. The question is how can the court know before hand that the respondents will file frivolous applications. It is only after an application has been filed before the court that the court can be in a position to make an assessment of the application but not before that stage. As regards the prayers for deposit of USD40 million and USD 1.8 million as security for costs I would say they are also prayers which cannot be granted even if the application proceeds to full hearing. In this regard, I share the views expressed by Hon. Justice Kalegeya in his decision when he refused the respondent leave to appeal to the Court of Appeal in his ruling delivered on 10/2/2005. The court should be in a position to make a decision on an application which is not likely to be determined in favour of the applicant at an early stage instead of giving the applicant false hopes. Such attitude will also unnecessary inconvenience the respondent. I thus uphold the preliminary objections on the declaratory orders and the protective and preventive orders and dismiss the application with costs. N.P.KIMARO, JUDGE 28/06/2005 Date: 30.6.2005 Coram: Hon. N.P. Kimaro, Judge. For the applicant - Mr. Laswai. For the Respondent - Absent. CC: R. Mtey. Court: Ruling delivered today. Order: The preliminary objection is upheld and the application is dismissed with costs. N.P.KIMARO, JUDGE 30/06/2005. 2,917 - words. Jd. n.J' ., ':' ~h;s is a true <lnd correct o. ! r. eo: :} Ii;) r'der J \Lig~~ment Rulli ng " ign . Or·· .~._ ,; _._ ..__ ~._~ , . _ ~..,,~._.._ .. _ ~:;~;~~:~ :'t?]j2pI~~. D,m.