tafico mwanza 1998 co ltd vs presidential parastatals sector reform commission 2003 tzhc 14 29 may 2003

~ IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAl\1 PRESIDENTIAL PARASTATAL SECTOR REFORM COMMISSION RESPONDENT RULING This is an application for leave to institute legal proceedings against the respondent PRESIDENTIAL PARASTATAL SECTOR REFORM COl\1MISSION. Essentially, it has been made in accordance \\lith O.XLIII, R.2 of the Civil Procedure Code, 1966. Thus, it has been supported by affidavit of Frank l\1arealle. It has also been made under S.39(1) of the Public Corporations Act, 1992 as amended, and S.9(l) of the Banknlptcy Ordinance (Cap.25). If I may cOlmnent a little bit on the last two sections under which this application has been made starting with S.39(1) of the Public Corporations 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 against PSRC. TIns 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 petitions in banlmlptcy. In this case, TAFICO l\1'VANZA (1998) CO. LTD. is not intending to lodge a bankruptcy petition against PSRC as PSRC is not its debtor. PSRC is simply an official receiver of certain assets of TAFICO wInch is under its receivership. The relationship between TAFICO l\1WANZA (1998) CO. LIMITED and PSRC is that of Buyer and Seller of TAFICO'S assets respectively which relationship is goven1ed by their MemorandlU11of Understanding. What TAFICO l\1WANZA (1998) CO. LTD. is intending to do is to lodge a claim against PSRC for damages in respect of lpss of business for non- JIt .. ,;-c perfonnance on its part of certain obligations contained in 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. On my part, notwithstanding my COlmnents 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. ~UJ' A. SHANGWA JUDGE 29/512003 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;> ~ "1~ ~ ~ A. SHANGWA JUDGE 29/5/2003