Mpinzire
JF-Expert Member
- Jan 18, 2013
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Mahakama yabatilisha umiliki wa PAP, wakati ikisemekana PAP ndiye mmilikia wa IPTL na kufikia PAP kuiwekea dhamana mitambo yake sasa Mahakama imebatilisha umiliki uo.
Je, IPTL ni ya nani?
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MAHAKAMA ya Rufaa imerudisha kampuni ya Independent Power Tanzania Limited (IPTL) chini ya usimamizi wa Mechmar Corporation (Malaysia) Berhard kutoka Malaysia na VIP Engineering and Marketing Limited kutoka Tanzania.
Hii ni kufuatia uamuzi uliotolewa na Majaji Augustine Mwarija, Gerald Ndika na Mary Levira wa kubatilisha maagizo ya matokeo ambayo yalikuwa yametolewa na Mahakama Kuu kushughulikia mambo yote ya IPTL, pamoja na kituo cha umeme kwa Pan Africa Power Solutions Tanzania Limited (PAP).
"Tunatupilia mbali na kuweka kando maagizo yote ya matokeo yaliyotolewa na Mahakama Kuu. Kwa kuepusha shaka, maagizo ya Mahakama Kuu ya Septemba 5, 2013 bado yanaonyesha kwamba ombi hilo liliwekwa alama kuondolewa na bila amri yoyote kuhusu gharama," walisema. katika uamuzi wa tarehe 29 Julai, 2021.
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THE Court of Appeal has placed back the troubled Independent Power Tanzania Limited (IPTL) company into the management of Mechmar Corporation (Malaysia) Berhard from Malaysia and VIP Engineering and Marketing Limited from Tanzania.
This followed a decision made by Justices Augustine Mwarija, Gerald Ndika and Mary Levira to nullify consequential orders that had been granted by the High Court to handle all IPTL affairs, including the power plant to Pan Africa Power Solutions Tanzania Limited (PAP).
"We quash and set aside all the consequential orders made by the High Court. For avoidance of doubt, the High Court's orders of September 5, 2013 remains to the effect that the petition was marked withdrawn with no orders as to costs," they said in the ruling dated July 29, 2021.
The justices noted after allowing an application for revision lodged by Mechmar that the High Court had granted such orders after marking withdrawn a petition filed by VIP Company for winding up of IPTL on alleged mismanagement of the company by majority shareholder.
They thought that the effect of a withdrawal of a legal action is to place the parties in the same position as if no such action had been brought to the court.
In their research the justices could not readily find any local precedent aligned to or contradicting such a view.
The justices subscribed to a number of decisions handed down by the courts in India on the question, which had decided that the effect of the withdrawal of the suit is to leave the rights of the parties undetermined insofar as they were asserted in that suit.
According to the justices, what the court was empowered to do was to pass an order only in respect of the costs.
The justice, therefore, found no difficulty to endorse the submission that the High Court's issue of the consequential orders was a palpable error.
"While the termination of appointment of the Administrator General as provisional liquidator was understandably and naturally consequential to withdrawal of petition, the order for transfer of affairs of (IPTL) to the management and, or total ownership of (PAP) was manifestly improper," they said.
Such order, the justice noted, purported to pronounce and confer rights on PAP as if the court had heard and determined the petition on the merits.
Most disquietingly, they said, PAP was a third party as it was not a party to the proceedings before the High Court.
Equally irregular and improper, according to the justices, were the High Court's orders for "taking judicial notice of the Share Purchase Agreement " and that IPTL should "as soon as possible consider paying Law Associates Advocates undisputed claim of monies to honour the commitment by PAP.
They pointed out that such orders appeared to have been mistakenly issued as if the order permitting the withdrawal was a decree within the meaning of the Civil Procedure Code, but it was not.
"We are firm in our mind that the High Court should not have embedded the withdrawal order with any other consequential order save for the order in respect of costs.
The consequential orders in this matter simply did not have any legs to stand on," the justices said.
Efforts were not successful to reach Advocates Michael Ngalo, for VIP Company and Melchisedeck Lutema, for PAP, to give their comments or reaction on such legal dramatic turn of events.
In IPTL, Mechmar held 70 percent shares, while 30 percent shares bought by PAP as per Share Purchase Agreement dated August 18, 2013, are owned by VIP Company.
Je, IPTL ni ya nani?
======
MAHAKAMA ya Rufaa imerudisha kampuni ya Independent Power Tanzania Limited (IPTL) chini ya usimamizi wa Mechmar Corporation (Malaysia) Berhard kutoka Malaysia na VIP Engineering and Marketing Limited kutoka Tanzania.
Hii ni kufuatia uamuzi uliotolewa na Majaji Augustine Mwarija, Gerald Ndika na Mary Levira wa kubatilisha maagizo ya matokeo ambayo yalikuwa yametolewa na Mahakama Kuu kushughulikia mambo yote ya IPTL, pamoja na kituo cha umeme kwa Pan Africa Power Solutions Tanzania Limited (PAP).
"Tunatupilia mbali na kuweka kando maagizo yote ya matokeo yaliyotolewa na Mahakama Kuu. Kwa kuepusha shaka, maagizo ya Mahakama Kuu ya Septemba 5, 2013 bado yanaonyesha kwamba ombi hilo liliwekwa alama kuondolewa na bila amri yoyote kuhusu gharama," walisema. katika uamuzi wa tarehe 29 Julai, 2021.
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THE Court of Appeal has placed back the troubled Independent Power Tanzania Limited (IPTL) company into the management of Mechmar Corporation (Malaysia) Berhard from Malaysia and VIP Engineering and Marketing Limited from Tanzania.
This followed a decision made by Justices Augustine Mwarija, Gerald Ndika and Mary Levira to nullify consequential orders that had been granted by the High Court to handle all IPTL affairs, including the power plant to Pan Africa Power Solutions Tanzania Limited (PAP).
"We quash and set aside all the consequential orders made by the High Court. For avoidance of doubt, the High Court's orders of September 5, 2013 remains to the effect that the petition was marked withdrawn with no orders as to costs," they said in the ruling dated July 29, 2021.
The justices noted after allowing an application for revision lodged by Mechmar that the High Court had granted such orders after marking withdrawn a petition filed by VIP Company for winding up of IPTL on alleged mismanagement of the company by majority shareholder.
They thought that the effect of a withdrawal of a legal action is to place the parties in the same position as if no such action had been brought to the court.
In their research the justices could not readily find any local precedent aligned to or contradicting such a view.
The justices subscribed to a number of decisions handed down by the courts in India on the question, which had decided that the effect of the withdrawal of the suit is to leave the rights of the parties undetermined insofar as they were asserted in that suit.
According to the justices, what the court was empowered to do was to pass an order only in respect of the costs.
The justice, therefore, found no difficulty to endorse the submission that the High Court's issue of the consequential orders was a palpable error.
"While the termination of appointment of the Administrator General as provisional liquidator was understandably and naturally consequential to withdrawal of petition, the order for transfer of affairs of (IPTL) to the management and, or total ownership of (PAP) was manifestly improper," they said.
Such order, the justice noted, purported to pronounce and confer rights on PAP as if the court had heard and determined the petition on the merits.
Most disquietingly, they said, PAP was a third party as it was not a party to the proceedings before the High Court.
Equally irregular and improper, according to the justices, were the High Court's orders for "taking judicial notice of the Share Purchase Agreement " and that IPTL should "as soon as possible consider paying Law Associates Advocates undisputed claim of monies to honour the commitment by PAP.
They pointed out that such orders appeared to have been mistakenly issued as if the order permitting the withdrawal was a decree within the meaning of the Civil Procedure Code, but it was not.
"We are firm in our mind that the High Court should not have embedded the withdrawal order with any other consequential order save for the order in respect of costs.
The consequential orders in this matter simply did not have any legs to stand on," the justices said.
Efforts were not successful to reach Advocates Michael Ngalo, for VIP Company and Melchisedeck Lutema, for PAP, to give their comments or reaction on such legal dramatic turn of events.
In IPTL, Mechmar held 70 percent shares, while 30 percent shares bought by PAP as per Share Purchase Agreement dated August 18, 2013, are owned by VIP Company.