MOSHI MAGISTRATES COURT UNLAWFULLY ORDERS SEIZURE OF BRITISH INVESTORS PROPERTY
On the 16th October 2007, the court of resident magistrate in Moshi (Kilimanjaro Region) ordered, on the request of Benjamin Mengi, the seizure of assets belonging to British investors Stewart Middleton and Sarah Hermitage whilst they were not present in Tanzania. The order demanded seizure by the court, of the investors property to the value of TSH90, 000,000 ($85,000). As a matter of law, the court acted ultra viries (outside of) its powers on the evidence before it.
The order surrounds a defamation case brought by Mengi against the investors in 2006. Mengi sued the investors for Libel in the Moshi magistrates court (magistrate Mkisi) for the following statements published in the Daily News on 2nd June 2006: -
David Stewart Middleton and his wife Sarah have told the 'Daily News' that their dream to settle in what they were made to believe was 'Investor-friendly Tanzania had turned into a nightmare because of routine harassment by police and abuse of judicial process in cases allegedly manipulated by the businessman. {Benjamin Mengi}
Dr Ngasongwa said the investors were bona fide and had been registered by the Tanzania Investment Center. They have the full support of his ministry, he said. "They are using local organs to harass legal investors. This is open corruption, which I strongly condemn. It shames us as a nation, which has set out to attract foreign investors," said the minister.
Mengi did not sue Dr. Juma Ngasongwa.
Under the Newspaper Act 1977 and the common law of Libel, only the printer, publisher and writer of any published material can be sued. Mengi therefore, had no right at law to sue the investors, his action should have been against the Daily News.
Under section 14, Order 11 (a) of the Civil Procedure Code of Tanzania, where a plaint shows there is no right to sue, there is an imperative duty on the court to reject the plaint or dismiss it at the earliest opportunity. Mkisi was therefore obliged to reject or dismiss Mengis claim.
Despite representations made to the PCCB and the former, Chief Justice, Mkisi heard the plaint in the absence of the investors. Despite the lack of any documentary evidence produced by Mengi to prove damages, Mkisi awarded Mengi TSH 90,000,000. The investors appealed the judgement and applied for a stay of execution, which was granted by Mkisi in September 2007 ordering them without cause, to pay TSH 90,000,000 into court. No date was set for the payment to be made.
Mr. Middleton left Tanzania for leave on the 8th October 2007. On the 16th October, the Moshi principle magistrate in charge, Dudu granted an application by Mengi for an attachment order of the investors property on the basis that the payment into court had not been made. Dudu stated that a date for the payment into court was written on the court file and the date had passed; he further stated there was no record on the court file of any pending appeal. This despite the presence of a filing receipt issued to the investors new lawyer Dr. Kamara (Dar es Salaam), from the Moshi High Court Registry.
Dudu called for no evidence to confirm the property Mengi was asking the court to seize, belonged to the investors. Mengi asked for cats, dogs, horses, tractors and company produce to be seized together with most moveable property situated on Silverdale & Mbono The court allowed Mengi to list items indiscriminately paying no reference to whether or not they were listed under Civil Procedure Code.
Following intervention by the British High Commission, it was established that in September 2006, an order was issued to the Moshi magistrates court, that all cases brought by Mengi against the investors should be stayed. The court ignored the instructions.
Since assigning the lease to Silverdale & Mbono Farms to Silverdale Tanzania Ltd the major shareholder of which was Stewart Middleton, Mengi and his wife Millie have brought ten civil cases against the investors together with numerous criminal charges one of which resulted in Mr. Middletons wrongful imprisonment. The Director of Public Prosecutions withdrew all charges. Mengis claim to evict the investors from the farms was dismissed by the High Court (Hon Kileo. Case No. 1/2006). The investors were left to pay $6,000 in costs.
Commenting on the Silverdale case in the Financial Times on 7th November 2007, the British High Commissioner Philip Parham is quoted as stating, Investor confidence is not helped by cases such as that of Silverdale Farm.
Roger Gale, Ms Hermitage's British MP, is asking ministers to exert pressure by withholding some of the £105m that the UK, the biggest donor, has committed to Tanzania's budget for 2007-08.
The seizure order has not been executed and the appeal is pending before the Moshi High Court.
15th November 2007.
