tafico mwanza 1998 co ltd vs presidential parastatal sector reform commission 2003 tzhc 75 29 may 2003

IN TH E H IG H CO U RT O F TANZANIA (d T r ES SALAAM D IST R IC T R EG ISTRY ) AT DAR ES SALAAM M ISC. C IV IL CASE NO.lOO OF 2003 LT D ....................... A PPLIC A N T TA FIC O M W ANZA (1998) CO. VERSUS PR ESID EN TIA L PARASTATAL r f <sPO NDENT SEC TO R R E FO R M C O M M IS S IO N .......................... RESPONDED RU LIN G SHANGWA,_J. This is an application for leave to institute legal proceedings against the respondent PR E SID EN T IA L PARASTATAL SE C T O R R EFO R M C O M M ISSIO N Essentially, it lias been made in accordance with O.XLIII, R.2 of the Civil Procedure Code, 1966. Thus, it has been supported by affidavit of F ra n k M arealle. It has also been made under S.39(l) of the Public Corporations Act, 1992 as amended, and S.9(l) of the Bankruptcy Ordinance (Cap.25). 1 If I may comment a little bit on the last two sections under which this appl.cat.on has been made starting w.th S.39(l) of the Public Corporat.ons Act, 1992, I find that this section does not provide for the necessity of the leave of the Court before a suit can be instituted agamst PSRC. This section deals with something else and I need not mention it here. I also find that s 9 (1 ) of the Bankruptcy Ordinance is not relevant here. Under this section, leave of the Court before instituting legal proceedings is required in cases of • bankmptcy. petitions m . . Tn In this case TA FIC O M W ANZA (1998) CO. this case, LTD. is not intending to lodge a bankruptcy petition agamst PSRC as PSRC is not its debtor. PSRC is simply an official receiver of certain assets of T A FIC O which is under its receivership. The relationship between T A F IC O M W ANZA (1998) CO. L IM IT E D and PSRC is that of Buyer and Seller o f T A F IC O ’S assets respectively which relationship is governed by their Memorandum of Understanding. What T A FIC O MW ANZA (1998) CO. LTD. is intending to do is to lodge a claim against PSRC for damages in respect of loss of busmess for non­ performance on its part of certain obligations contained m their Memorandum of Understanding. This application was presented by Mr. Maira, Advocate. Mr. Fungamtama who appeared on behalf of the respondent PSRC did not object to this application. In fact, he had filed a preliminary objection which he also withdrew. 2 On my part, notwithstanding my comments above, I do not have any reason to refuse this application for leave to institute legal proceedings against the respondent which I hereby grant. Each Party to bear his own costs. It is so decided. A. SHANGWA JUDGE 29/5/2003 Delivered in Court in the presence of Mr. Kiwanga, Advocate holding brief for Mr. Maira, Advocate for the Applicant and Mr. Fungamtama, Advocate for the Respondent this 29th day of May, 2003. A. SHANGWA JUDGE 29/5/2003