TGInnocent
JF-Expert Member
- Feb 7, 2013
- 1,088
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Rejea utetezi wa Waziri Mkuu bungeni.....Kadanganya kuwa IPTL walivuta fedha za akaunti ya ESCROW. ukweli ni kama waraka huu wa mahakama unavyo fichua........
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In the high court of Tanzania
At dar es salaam
(dar es salaam district registry)
Consolidated miscellaneous civil cause no. 49 of 2002
And
Miscellaneous civil cause no. 254 of 2003
In the matter of the companies ordinance cap 212
and
in the matter of the companies winding up rules, 1929
and
In the matter of WITHDRAWAL OF THE PETITION for winding up of independent power Tanzania limited (IPTL)
And
In the matter of an application for enforcement of the CONSENT ORDERS OF the HIGH court OF TANZANIA (HON. UTAMWA, J) dated 5th september, 2013
Between
- VIP ENGINEERING AND MARKETING LIMITED .......... 1ST APPLICANT
- INDEPENDENT POWER TANZANIA LTD . ... 2nd APPLICANT
Versus
- PAN AFRICA POWER SOLUTIONS (T) LIMITED ........ 1ST RESPONDENT
- BANK OF TANZANIA .. ... 2ND RESPONDENT
- STANBIC BANK TANZANIA LTD ... . .. 3RD RESPONDENT
- UBL BANK (TANZANIA) LTD ..... 4TH RESPONDENT
affidavit of james burchard rugemalira in support of the chamber summons
I, JAMES BURCHARD RUGEMALIRA, Adult Christian, Male, Resident of Dar es Salaam, P. O. Box 70457, hereby TAKE OATH and state as follows:
- That I am authorized by the Board of Directors of VIP Engineering and Marketing Limited, a Company incorporated in Tanzania under the Companies Ordinance Cap 212 (now the Companies Act Cap 212 R.E. 2002), the Applicant above named, (hereinafter also referred to as VIP) to depone on its behalf this Affidavit in support of the Chamber Summons accompanying this Affidavit.
- That I am a Director of Independent Power Tanzania Ltd, the 2nd Applicant above named (hereinafter to be referred to as IPTL). I have been advised by Respicius Didace Advocate for VIP that as a Director of IPTL, I am enjoined under Tanzania Law with a duty to bring to the notice of the Honourable Court the conduct of the 1st Respondent, Pan Africa Power Solutions Tanzania Ltd (hereinafter to be referred to as PAP) which conduct threatens to illegally convert the Assets not only of VIP but also of IPTL.
- That VIP is a shareholder of IPTL, a Tanzanian company that owns and operates a 100MW power plant in Tegeta Dar es Salaam Tanzania (the Plant).
- That on behalf of VIP, I negotiated with Pan Africa Power Solutions (T) Ltd (PAP) and on 19th August 2013 signed the agreement for Sale and Purchase of VIPs 30% Shares in IPTL dated 15th August 2013 (the Agreement) whose non performance by PAP gives rise to this application.
- That in the Agreement, PAP undertook to pay VIP the sum of US$ 75 million in exchange for all of VIPs 30% Shares and future interests in IPTL as of 31st August 2013 without prejudice to VIPs past damages claims and claims for past consequential losses against Standard Chartered Bank and Others.
- That in return, VIP would, upon payment, convey its 30% Shares and subsisting future interest in IPTL to PAP and consent to PAPs acquisition of the remaining 70% Shares and interests in IPTL that are held by Mechmar Corporation Malaysia (Behard) (MECHMAR). For convenience of reference, a copy of the Agreement dated 15th August 2013 that was signed on 19th August 2013 is attached hereto at TAB-4 to be referred to as part of this Affidavit.
- That in order to further the public interest and to facilitate the operation, conversion to gas firing to reduce the IPTL Power Tariff to TANESCO to between USCents 6 and 8/unit, and expansion of the IPTL Power Plant to about 500MW, VIP also agreed to apply to this Honourable Court to withdraw the winding-up proceedings of IPTL that VIP had commenced at the High Court of Tanzania Dar es Salaam District Registry under Misc. Civil Cause No. 49 of 2002 since 25th February 2002.
- That relying upon PAPs representations, VIP also agreed to request the Court to Order the Provisional Liquidator of IPTL, who had been appointed by the High Court (Hon. ORIYO, J. as she then was) since 16th December 2008, to hand over to PAP the day-to-day operations of the IPTL Power Plant before the full and final performance of PAPs obligations under the Agreement. By 10th September 2013 the Provisional Liquidator of IPTL had handed over to PAP all the Affairs of IPTL including the IPTL Power Plant at Tegeta Dar es Salaam.
- That under the Agreement, however, VIP would be deemed not to have transferred its 30% shares in IPTL to PAP, or to have consented to the transfer of the MECHMARs 70% shares in IPTL, until full payment for VIPs 30% Shares in IPTL including accrued interest was made to VIP by PAP.
- That consequently, relying on the Agreement, on behalf of itself and PAP, VIP duly applied to this honourable Court to withdraw its winding-up petition. On 5 September 2013, this honourable Court took judicial notice of the Agreement, and, relying on that agreement, permitted VIP to withdraw its petition for winding of IPTL in a ruling and order (respectively, the 5 September 2013 Ruling and 5 September 2013 Order, attached hereto at TABS 5 and 6 to be referred to as part of this Affidavit).
PAP has Taken All the Benefits of the Agreement
and the Property of IPTL for Itself
- That as of the date of this application, PAP is in default of its obligations under the Agreement. PAP has failed to pay amounts now due and owing for several months. PAP is therefore in violation of the Agreement, and is disobeying and frustrating the 5 September 2013 Order and Ruling of this Court.
- That as stated in the preceding paragraphs above, PAP has failed to make the payments that have been inarguably due since 20 September 2013, despite repeated promises to do so. This has not, however, stopped PAP from illegally exercising control over IPTLs property or money as if it had properly performed all its obligations under the Agreement.
- That specifically, PAP has exercised control over the escrow account which was established by the GOT and IPTL with the Bank of Tanzania (BoT) as a result of disagreements between IPTL and Tanzania Electric Supply Company Ltd (Tanesco) over the amounts due under the Power Purchase Agreement (PPA) between them. This escrow account was established with the BoT for purposes of depositing those payments claimed by IPTL but which were disputed by TANESCO.
- On 27th October 2013, probably also believing that PAP was acting in good faith under the Agreement and Court Order in its commitments to pay off all genuine Creditors of IPTL and to expand the IPTL Power Plant capacity to about 500MW and to reduce the IPTL Power Tariff to TANESCO to between USCents 6 and 8/unit and to complete performance of all its obligations under the Agreement, the Government of Tanzania (GOT) through the Permanent Secretary Ministry of Energy and Minerals notified the Bank of Tanzania (BOT) that TANESCO no longer disputed the IPTL Capacity Charge invoices. Consequently, GOT also advised BOT that all the monies and financial instruments in the Tegeta Escrow A/c jointly held at the Bank of Tanzania by the GOT and IPTL shall hence-force be deemed to belong to IPTL.
- That as of mid-November 2013, the Tegeta Escrow Account at the BOT contained approximately US$ 125 million. Between 28 November 2013 and 5th December 2013. BoT released all the funds in the Tegeta Escrow Account including IPTL Treasury Bills at the direction of PAP, and Mr. Singh, who incompetently represents himself as the CEO of IPTL. The funds and Treasury Bills in the Tegeta Escrow Account have, however, been transferred to accounts belonging not to IPTL, but to PAP.
- That similarly, I am aware that PAP has been collecting revenues due to IPTL under the Power Purchase Agreement and taking those revenues for the benefit of PAP and its shareholders without meeting the terms of the Agreement and the Court Order.
- That PAP has taken actual physical possession of the IPTL Power Plant and continues exercising dominion over IPTLs real and personal property, despite the fact that it has no legal right to do so, having failed to make the required payment to VIP.
PAP Has Made Repeated False Promises to Pay
- That PAP made the agreed initial payment of US$ 7.5 million several days after the agreed due date. The Agreement required that PAP make full payment to VIP by 30 August 2013. See Agreement Article 2.3. PAP did not do so.
- That the Agreement permitted PAP, for a reasonable cause, to delay payment of the balance due until 20 September 2013. PAP requested that VIP agree to delay payment of the balance due until 20 September 2013, and VIP agreed.
- That the Agreement further provided for an interest of 22.31% p.a on payments of the price that are not timely made. See Article 5.4 of the Agreement.VIP has never agreed to waive its entitlement to default interest under the Agreement.
- That PAP failed to make payment by 20 September 2013 as promised.
- That after 20 September 2013, PAP repeatedly contacted me, through Harbinder Sethi Singh, promising that payment would be made eminently. On several occasions, Mr. Singh also acknowledged that interest was owing on the overdue balance.
- That for example, on 8 November 2013, Mr. Singh sent me a text message from his Mobile Telephone No. + 255 767 258777, indicating that THE BALANCE OF 67.5M USD WITH INTEREST WILL MOST LIKELY BE FULLY PAID BY 15TH NOV.
- That no payment was made by PAP on 15 November 2013.
- That On 15 November 2013, Mr. Singh sent me another text message in which he promised, on behalf of PAP, that TRANSFER WILL BE EFFECTED NEXT WEEK. HUNDRED PERCENT NOW. DR. SETHI.
- That No payment was made by PAP the next week.
- That on 21 November 2013, Mr. Singh sent me still another text message in which he stated: WE ARE READY TO PAY BY MONDAY.
- That No payment was made by PAP on Monday.
- That as of the date of this application, PAP has failed to make the payment due under the Agreement, despite its repeated promises to do so.
- That on 5th December 2013 vide letter Ref: VIPEM/JB/JK/41/2013, I wrote to the Governor of the Bank of Tanzania a reminder Notice not to allow PAP to be paid money from the Tegeta Escrow A/C at the BOT on behalf of IPTL. A copy VIPs letter Ref. VIPEM/JB/JK/41/2013 dated 5th December 2013 without its 5 Annextures is attached hereto at TAB-7 to be referred to as part of this Affidavit.
- That on 5th December 2013 for the 1st time since 19th August 2013, PAP raised potential taxation issues arising from the transaction. VIP has made it clear to PAP and to the Tanzania Revenue Authority that it is prepared to cooperate fully to ensure that any and all taxes will be paid. VIP has however disputed that PAP is entitled to withhold any taxes from the Sales of VIPs 30% Shares in IPTL to PAP that would prevent PAP from making payment under the Agreement. PAP has still failed to make the full payment of the Agreed Price.
- That on 12th December 2013, the Governor of the Bank of Tanzania Prof. Ben Ndulu replied to VIPs letter Ref: VIPEM/JB/JK/41/2013 dated 5th December 2013 and informed that funds in the Tegeta Escrow A/C were all already paid to IPTL between 28th November 2013 and 5th December 2013 pursuant to the Agreement between IPTL and GOT dated 27th October 2013 and in accordance with the High Court order dated 5th September 2013. A copy of the Governor of BOTs said letter Ref: No.NC.53/135/085 dated 12th December 2013 is attached hereto at TAB-8 to be referred to as part of this Affidavit.
- That on 19th December 2013 the Deputy Governor of the Bank of Tanzania, Mr. Juma H. Reli wrote to the Permanent Secretary of the Ministry of Finance Dr. Servacius Likwelile with a copy to VIP among other parties advising the GOT to close the Tegeta Escrow A/C at the BOT and that all the funds in the Tegeta Escrow A/C at BOT had by 5th December 2013 already been transferred and or paid to IPTL. A copy of the Deputy Governors said letter dated 19th December 2013 is attached hereto at TAB-9 to be referred to as part of this Affidavit.
- That even though the Bank of Tanzania letters referred to above state that the Tegeta Escrow A/C funds were transferred and or paid to IPTL in reality I have been made to believe that PAP fraudulently misled the operating officers at the Bank of Tanzania to pay the said funds to PAP and not to IPTL contrary to what Governor and the Deputy Governor of the Bank of Tanzania represent.
Immediate Ex Parte Relief is Necessary to Protect
IPTLs Assets And VIPs Interests
- That on 27th December 2013, VIP received from the Secretary General of ICSID a copy of a request for arbitration No. 2013057 of the United Republic of Tanzania against MECHMARs illegal and unauthorized actions in IPTL questioning why after TANESCO paid to IPTL hundreds of Millions of Dollars by way of Capacity Charges some purported IPTL lenders still claim to be owed hundreds of Million of Dollars by IPTL against the original drawn down IPTL loan amount of about USD 85.0million. A copy of the said ICSID documents is attached hereto at TAB-10.
- Save that I dispute ICSID jurisdiction and I also dispute the prayers made by GOT against IPTL in the request for Arbitration No. 213057, otherwise I crave for leave of the Court to adopt the other contents of GOTs request for Arbitration to be referred to as part of this Affidavit.
- That on 31st December 2013, PAP sent a text message that it would pay every penny due to VIP up to USD 79.0million but only after assessment of taxes by TRA. PAP stated categorically that it was ready to pay on 31st December 2013 after clarity that TRA taxes would be paid by VIP.
- That on 31st December 2013, I on behalf of VIP sent to Harbinder S. Sethi of PAP VIPs letter Ref. VIPEM/JB/SR/44/2013 advising PAP to deposit USD 71.5million in VIPs Trust Bank A/C at Mkombozi Commercial Bank PLC and I instructed the Managing Director, Mrs. Edwina Lupembe to hold the amount in Trust if received from PAP until VIP and TRA will have agreed on the amount of income tax payable and the agreed tax deducted from the deposit of USD 71.5million and remitted to TRA.
- That on 6th January 2014, I on behalf of VIP sent out an email to the Managing Director of Mkombozi Commercial Bank PLC Mrs. Edwina Lupembe to confirm to VIP whether or not by the close of business today 6th January 2014 PAP had deposited USD 71.5million into VIPs Trust Bank A/C as requested in VIPs letter to PAP dated 31st December 2013 referred to at para 38 above. A copy of VIPs mail dated 6th January 2014 is attached hereto at TAB-11 to be referred to as part of this Affidavit.
- That the Managing Director of Mkombozi Commercial Bank PLC has written back advising that the deposit of USD 71.5million has not yet been made by PAP into VIPs Trust Bank A/C at Mkombozi.
- That on 6 January 2014 the Secretary General of ICSID sent a mail extending GOTs time to provide additional information on the present status of IPTL and comments on Article XXI of the Implementation Agreement between GOT and IPTL that was signed on 8th June 1995. A copy of ICSID email is attached hereto at TAB-12 to be referred to as part of this Affidavit.
- That VIP contributed for IPTL the Power Purchase Agreement (PPA), the Implementation Agreement (IA), the Government Guarantee (GOT) and the Electricity Generation and Selling Licence. These VIPs contributions are undisputably the most important Assets of IPTL.
- That according to paragraph 45 at page 10 of the 1st Interim Report of the Provisional Liquidator for IPTL dated 15th May 2009 apart from the money paid by TANESCO into the Tegeta Escrow Account which as stated in paragraph 15 above amounted to about US$ 125.0million, TANESCO also paid to IPTL Capacity Charges amounting to US$ 190,558,060.35.
- That inspite of IPTL or persons representing themselves to be IPTL having been paid total Capacity Charges of about US$ 315,558,060.35, VIP has never been paid even a single cent for its investment in IPTL which as stated in para 42 above represented the most important Assets of IPTL.
- That I have personally served as a director of IPTL since 1st November 1994 to date without being paid even a single cent by IPTL to date. I state that IPTL owes me for my services a total of US$ 54,720,000.- [US$ 1000 X 8hrs X 360 days X 19 yrs] which given the present conduct of PAP I am now entitled to claim from PAP.
- That PAP has already received all of the benefits of its agreement with VIP which was ratified by this Honourable Court. However, PAP has by its conduct demonstrated that despite of taking over all the affairs of IPTL and disposing of its property, it is unwilling to pay the agreed price unless it is compelled to do so by this honourable Court.
- That as noted above, PAP was permitted immediate access to IPTL and its operations to facilitate the transfer of control under the Agreement, based on its representations in the Agreement, and its undertakings before this Honourable Court and to the employees of IPTL and to the Public through the News Media.
- That until the Agreement is fully performed by PAP, PAP has no ownership interest in IPTL, and no right to funds belonging to IPTL. PAP is therefore wrongfully in possession of funds belonging to IPTL, and there is a substantial risk that PAP will dispose of those funds in a way that will make them unrecoverable causing undue embarrassment and hardships to VIP, IPTL and to all the juristic and natural Citizens of Tanzania.
- That PAP has by recent conducts demonstrated that it is not willing to honour the Agreement and the orders of this Hon. Court.
- That I have been advised by Respicius Didace, Advocate for the Applicants that this honourable Court has jurisdiction to hear and determine both the exparte application and the Application interparties which is being filed in this honourable Court under a Certificate of Urgency.
- That after hearing and determination of the exparte application the Applicants will serve copies of the interparties Application upon other persons who are not parties in these proceedings for any or all who may have interest or who may be affected by the orders prayed for to apply to join in the proceedings either in support or in opposition of the Application.
VERIFICATION
- I, JAMES BURCHARD RUGEMALIRA do hereby state and verify that all what is state in paragraphs 1 to 51 above is true to the best of my knowledge, save what is stated in paragraphs 2, 9, 10, 11, 12, 17, 36, 46, 47, 48, 50 and 51 above, which is true based on the Advice I received from Advocate Respicius Didace, which advice I verily believe to be true and correct, and what is stated in paragraphs 14, 15, 16, 34, 35, 42, 43, 44, 45 and 49 above is true according to my own beliefs the grounds of which have been stated therein and which I verily believe to be true and correct.
Dated at Dar es Salaam this .. day of January 2014.
. . .
JAMES BURCHARD RUGEMALIRA
DEPONENT
SWORN at Dar es Salaam by the said]
JAMES BURCHARD RUGEMALIRA]
who is known to me personally]
in my presence]DEPONENT
this .. day of January 2014.]
BEFORE ME:
NAME: . .. ...
SIGNATURE: ..
ADDRESS:
QUALIFICATION: .
Presented for filing this .. day of January 2014.
.
REGISTRY OFFICER
JOINTLY DRAWN AND FILED BY:
Mob:+255 756 066889 +255 715 066889/+255688066889
- Respicius Didace Advocate
Didace & Co. Advocates
4th Floor, Mkunazini Building
Kiungani Street, Mnazi Mmoja Area
P.O Box 78799
DAR ES SALAAM
Email: didace@gmail.com
Ngalo & Company Advocates
- Michael Ngalo Advocate
Samora Avenue/Azikiwe Street
6th Floor, IPS Building
P.O. Box 79872
DAR ES SALAAM
Email: mikengalo@gmail.com
Tel: + 255 764 601 018
Law Associates Advocates
- Cuthbert Tenga, Advocate
CRDB Building, 6th Floor Wing B
Azikiwe Street,
P.O. Box 11133,
DAR ES SALAAM
Email: catenga@gmail.com
Tel: + 255 688 477 377
Mutabuzi & Co. Advocates,
- Dosca Mutabuzi, Advocate
NIC Life House,
5th Floor -Wing B,
Sokoine Drive,
P.O. Box 5339,
DAR ES SALAAM
Email: dbaregu@yahoo.com
Tel: + 255 754 398 566 / + 255 682 679 009
COPY TO BE SERVED UPON:-
C/o Harbinder Singh Sethi
- Pan Africa Power Solutions (T) Ltd
Mrikau Street, Masaki Area
P.O. Box 4262
DAR ES SALAAM
Email: sethi@tanzsa.com
Fax: +27 865528635
Tel: + 255 767258777/+27843991110
Bank of Tanzania
- The Governor
Litigation Investigation Department/Directorate of Finance
C/o Mr. Mustafa Ismail/Mr. Angelo Julius
P.O. Box 2939
DAR ES SALAAM
Email: mkismail@hq.bot-tz.org ; jrangelo@hq.bot-tz.org
Tel: + 255 222233225/+255 754 785633
Stanbic Bank Tanzania Ltd
- The Managing Director
Stanbic Centre
Plot No. 99A
Kinondoni Road/Ali Hassan Mwinyi Road
DAR ES SALAAM
Tel:+255 22 2666430
UBL Bank (Tanzania) Ltd
- The Managing Director
26 Mkwepu Street
P.O. Box 5887
DAR ES SALAAM
TANZANIA
Tanzania Revenue Authority
- The Commissioner General
C/o Mr. Rished Bade
Sokoine Drive, Mapato House
P.O. Box 11491
DAR ES SALAAM
United Republic of Tanzania
Email: rished.bade@tra.go.tz
Tel: + 255 789 777 006; +255 222 130381
C/o Hon. Justice Frederick Werema (MP)
- The Hon. Attorney General
Attorney Generals Chambers
Kivukoni Front
P.O. Box 9050
DAR ES SALAAM
Email: fredwerema@hotmail.com
Tel: + 255 759 481 064
C/o Hon. Prof. Dr. Sospeter Muhongo (MP)
- The Hon. Minister for Energy and Minerals
Ministry of Energy and Minerals
P. O. Box 2000
DAR ES SALAAM
Email: profmuhongo.sospeter@gmail.com / s.muhongo@mem.go.tz
Email: y.samamba@yahoo.com
Tel: + 255 789 555 555/ Tel: + 255 719 787 882/ + 255 659 250 050
Ministry of Energy and Minerals
- The Permanent Secretary
C/o Eliakim C. Maswi
P. O. Box 2000
DAR ES SALAAM
Email: ecmaswi@yahoo.co.uk /ps@mem.go.tz
Tel: + 255 789 555 555
C/o Mr. Joseph Makandege
- Bulwark Associates Advocates
Plot No. 158, Mikocheni B
Bima Street, Off-Mwai Kibaki Road
P.O. Box 32032
DAR ES SALAAM, TANZANIA
Tel: + 255 22 2780731
Fax: + 255 22 2780361
Email: makandege@yahoo.co.uk
C/o Mr. Melchisedeck S. Lutema
- Asyla Attorneys
DAR ES SALAAM, TANZANIA
Email: lutema@asylattorneys.com
Tel: + 255 773 398 555/+ 255 754 398 551
- Dr. Mr. Camilo B. Schutte
Advocate| lawyer | abogado
T +31 20 7173414
M +31 6 13221698
F +31 20 4702237
c.schutte@sshj.eu
Schutte Schluep & Heide-Jørgensen
De Lairessestraat 97
NL-1071 NX Amsterdam
Miller & Wrubel P.C.
- S. Christopher Provenzano Counsel
cprovenzano@mw-law.com / www.mw-law.com
Tel: (212) 336-3518 (Direct Phone) | (212) 336-3555 (Fax)
570 Lexington Avenue | New York, NY 10022
Mobile + 191 769 08764
Mkombozi Commercial Bank PLC
- The Managing Director
C/o Mrs. E. Lupembe
Plot 40, Manfield Street
P.O. Box 38448
DAR ES SALAAM
Email: eddy@iwayafrica.com Edwina.lupembe@mkombozibank.com / nwaka.mwabulambo@mkombozibank.com
Tel: + 255 754 784 808
C/o Dr. C.B. Schutte and Mrs. L. Heide-Jorgensen
- Stichting Beheer Derdengelden Schutte Heide-Jorgensen Advocaten
De Lairessestraat 97
NL-1071 NX Amsterdam
The Netherlands
Email: c.schutte@sshj.eu and l.heide@sshj.eu
Fax: +31 20 4702237
Independent Power Tanzania Ltd
- General Manager
Kunduchi Sala Sala
P.O. Box 77173
DAR ES SALAAM
Tel: + 255 753 773 031/ + 255 756 143 758
Email: magesvaran86@googlemail.com / admin@iptl.co.tz
Tanzania Electric Supply Company Ltd
- The Managing Director
C/o Engineer Mramba
DAR ES SALAAM
Tel:
Email: Felchesmi Mramba
Ministry of Finance
- The Permanent Secretary
C/o Dr. Servacius Likwelile
P.O. BOX 9111
DAR ES SALAAM