Mahakama yazuia ombi la kampuni ya NSK kuifilisi Dangote Cement

Nakulilia Kikwete ulivyojitahidi kutafuta investors, sisi tunawakimbiza. Tukiwaambia wataishi kama mashetani!!!
 
Return of Undertaker,
Kwa manufaa ya uzi huu makini na pia kukata kiu kama wasomaji wana maswali mengi kuhusu sakata hili na kuwezesha kutoa maoni kufuatana na yaliyojiri ktk hukumu na mkataba baina ya NSK na Dangote nimeweka waliyojiri mahakamani na hoja za mawakili wasomi mbele ya Mh. Jaji B.K Phillip

Dangote Cement Ltd vs NSK Oil & Gas Ltd (Misc. Commercial Appl. No.05 of 2020) [2020] TZHCComD 1995; (11 August 2020)​


IN THE HIGH COURT OF TANZANIA
(COMMERCIAL DIVISION)
AT ARUSHA
MISC. COMMERCIAL APPLICATION NO.5 OF 2020
(ARISING FROM COMMERCIAL CASE NO. 7 OF2020)
DANGOTE CEMENT LIMITED.......................................APPLICANT
Vs
NSK OIL & GAS LIMITED..........................................RESPONDENT
RULING
B.K. PHILLIP, J.
The applicant herein lodged this application under the provisions of Rule 2
(2) of the High Court (Commercial Division Procedure) Rules, G.N. No. 250
of 2012, Sections 68 (e) and 95 of the Civil Procedure Code (Cap 33 R.E.
2019) and section 2 (1) and (3) of the Judicature and Application of Laws
Act (Cap 358 R.E. 2019) praying for the following orders;
i. That this Honourable Court be pleased to issue preservatory orders
so that the current status quo
as between the Applicant and the
Respondent be maintained and/or preserved pending the hearing and
final determination of the main suit between the parties herein.
ii. That this Honourable Court be pleased to issue restraining orders
against the Respondent, its servants, agents, assignees or any

provisions of the law cited in the Chamber summons are not enabling
provisions to move this court to grant the orders sought by the applicant.
Mr. Sambo, contended that the provisions of Rule 2(2) of the High Court
(Commercial Division) Procedure Rules, 2012, as amended by GN No. 107
of 2019, just permits the applicant to resort to the provisions of the Civil
Procedure Code, Cap 33, R.E 2019, (Henceforth "the CPC"), in case there is
a lacuna, thus it is not an enabling provision to grant the orders sought. He
proceeded to submit that section 68 (e) of the CPC is used in supplemental
proceedings for the Court to make interlocutory orders whereas section 95
of the CPC provides for the inherent powers of the Court. As regards the
provisions of section 2(1) (3) of the Judicature and Application of Laws Act,
(Henceforth "JALA") Mr. Sambo submitted that they just provide for the
general powers of this Court, but they are not enabling provisions for this
court to grant the orders sought in this application.

To cement his arguments he cited the case of Majura Magafu and Peter Swai Vs The Managing Editor, Majira Newspaper and Business Times Limited,
Civil Application No. 203 of 2015
(unreported), in which the court held
that non-citation of enabling provisions of the law renders the application
incompetent and the case of
Robert Stephano Vs Vedastina Archard
Msika, Land Application No. 43 of 2018,
(Unreported) which has a similar holding to the case of Magafu Majura (supra).

As regards the second point of preliminary objection, Mr. Sambo submitted that, the prayers sought by the applicant in this application are untenable
because granting them will prevent the respondent from exercising its
4

rights provided under the Companies Act, 2002 Mr. Sambo insisted that
granting the prayers sought will be irregular and contrary to the laws.
In rebuttal, Mr. Mushi submitted that this court is properly moved. That
the provisions of the laws cited in the chamber summons are enabling
provisions for this court to grant the orders sought in this application. Mr.
Mushi went on to submit that the provisions of Rule 2(2) of the High Court
(Commercial Division) Procedure Rules, 2012, allow a party to resort to the
provisions of the CPC in case there is a lacuna. The applicant resorted to
the provisions of sections 68(e) and 95 of the CPC because there is a
lacuna in the High Court (Commercial Division) Procedure Rules, 2012, as
there is no rule which could be cited to move this court to grant the reliefs
sought in this application contended Mr. Mushi. It was the contention of
Mr. Mushi that the provisions of sections 68 (e) and 95 vest powers to this
court to entertain any application for meeting the ends of justice since the
CPC is not exhaustive and it is not expected to cover all sorts of reliefs that
a party may pray before the Court. Moreover, Mr. Mushi submitted that
the provisions of section 2(1) (3) of JALA gives unlimited jurisdiction to this
court, which covers the prayers sought in this application. To bolster his
arguments, Mr. Mushi referred this Court to the case of Tanesco Vs IPTL
and two others, consolidated Civil Application No. 19 and 27 of
1997, (2000) TLR, 324 and the case of Monaban Trading &
Farming Company Ltd Vs The Cereals and other Produce Board of Tanzania, Misc Application No 61 of 2019 (unreported).
5

Mr. Mushi further submitted that the fact that Mr. Sambo failed to cite any
other provisions of the laws which could be used by the applicant to move
this court to grant the orders sought in this application, proves that the
provisions cited by the applicant are proper and this court is therefore
properly moved.

As regards the second point of preliminary objection, Mr. Mushi refuted Mr. Sambo's contention that granting the orders sought in this application will
prevent the respondent from exercising its rights provided under the
Companies Act, Cap 212. He contended that the applicant is just praying for an order restraining the respondent from filing an application for winding up of the applicant because there is a case pending in court and that order, if granted will expire upon the determination of the main case.
In conclusion of his submission, Mr. Mushi told this court that the
respondent's threat to file a petition for winding up of the applicant is real
and that it was necessary for the applicant to lodge this application
because once the application for winding up is filed the applicant will have
no room to lodge any application apart from filing an affidavit to oppose
the petition for winding up. He insisted that this application is properly filed
and invited this court to grant the orders sought in this application.

In rejoinder, Mr. Sambo reiterated his submission in chief. He further
contended that he was not duty bound to cite the enabling provisions of laws after pointing out that the ones cited by the applicant are not enabling provisions of the law for this court to grant the relief sought. He distinguished the case of Monaban (supra) and Tanesco (Supra) from
6

this application on the ground that the prayers that were sought in those
cases are different from the ones sought in this application. Mr. Sambo
insisted that if at all the respondent will file the petition for winding up,
the applicant will have an opportunity to raise its concerns/ complaints in
the affidavit in opposition to the petition for winding up. Moreover, upon
being probed by the court on how this application is related to the main
case, Mr. Mushi told this court that the applicant has stated in its defence
in the main case that it is just awaiting for the court's decision on who is
the proper recipient of the money claimed by the respondent, as between
Plaintiff and the respondent. He also told this court that he opted not to
join the plaintiff in this case because the orders sought in this application
will not affect the plaintiff.

Upon analyzing the competing arguments raised by the learned advocates
and reading the cases referred to this court, I wish to start with the
second point of preliminary objection, for obvious reasons that the same is
concerned with the appropriateness of this application, that is, whether
or not this application is properly filed in this court and /or tenable since
this court cannot proceed with the hearing of an application which is not
tenable.

I have taken into consideration Mr. Sambo's argument that if this
application is entertained in effect it will prevent the respondent from
exercising its rights to file a petition for winding up provided in the
Companies Act. In my considered view, this argument is void of merit as
any injunctive order for maintaining status quo or preventing a certain
7
action from being done to enable the ends of justice to be met, sometimes
may prevent the other party from doing something which the laws allow
him or her to do. As correctly submitted by Mr. Mushi, since such orders
normally expire upon the determination of the main suit/ a matter pending
in Court, cannot be termed as irregular or wrong in the manner presented
by Mr. Sambo.

However, I have noted that in this application, the applicant and the
respondent are all defendants in the main case. As it can be noted from
the background of this matter narrated earlier in this ruling, the main case
is all about the claims of money arising for the contracts entered between
the plaintiff and the defendants. In fact, there is no any case between the
applicant and the respondent. What we have in court is the plaintiff's case
against the parties herein. So, the applicant's prayer that this court be
pleased to issue an order for maintaining the status quo between the
applicant and the respondent pending the hearing of the case between the parties in this application is misconceived and not tenable, since neither the applicant nor the respondent has instituted any case in this court which it can be relied upon to move this court to issue the orders sought in the chamber summons.

Secondly, the main case has nothing to do with the disputes between the
applicant and the respondent as well as the alleged threat for filing an
application for winding up the applicant made by the respondent. Mr.
Mushi's contention that the applicant is awaiting for the court's order on
who is the rightful recipient of the money claimed by the respondent is
8

based on the applicant's defence in the main case which cannot be taken
to be the correct position as far as the dispute between the applicant and
the respondent is concerned. After all, it has to be noted that a written
statement of defence cannot be used to raise any claim for determination
by the court. All in all, looking at the facts surrounding this application, it
is evident that there is a dispute between the applicant and the respondent
on the payment of some money. According to the demand notice that was
served to the applicant in which the respondent intimated its intention to
lodge a petition for winding up, the respondent demanded payment of a
sum of Tshs. 3,729,216,275.86/= as per the deed of settlement which was
signed between the applicant and the respondent.

The fact that the applicant has not joined the plaintiff in this application
proves that the dispute between the applicant and the respondent which
has lead to the respondent's threat to file a petition for winding up of the
applicant has nothing to do with the claims in the main case. The dispute
between the applicant and the respondent, according to what is deponed in the affidavit in support of this application emanates from the deed of settlement which was entered into between the applicant and the
respondent. The deed of settlement between the applicant and the
respondent has nothing to do with the plaintiff's claims in the main case
and the plaintiff is not a party to that deed of settlement. Good enough,
the deed of settlement was attached to the affidavit in support of this
application as an annexture, thus I had opportunity to read it.
9

From the foregoing, what I have explained herein above, shows that the
cause of action in the main case is different from the cause of action in the
dispute between the applicant and the respondent which has lead to the
respondent's threat to file a petition for winding up of the applicant. As
indicated earlier in this ruling, in the main case the plaintiff claims against
the applicant and the respondent jointly and severally for payment of Tshs
5,838,231,353.58/= whereas in the notice served to the applicant by the
respondent in which the respondent intimated its intention to file a
petition for winding up of the applicant, the respondent demanded to be
paid a sum of Tshs 3,729,216,275.86/= only.

From the foregoing it is the finding of this court that this application is not
tenable as, there is no any case pending in court between the applicant
and the respondent in relation to the aforesaid dispute between the
applicant and the respondent, and the respondent's threat to file a petition
for winding up of the applicant. Thus, this application has no legs to stand on.

Having made the above findings, I do not see any plausible reasons to
continue with determination of the 1st of point of Preliminary objection.

By passing, I wish to point out that if at all the respondent will file a
petition for winding up of the applicant as intimated in its demand notice
then, the applicant will have opportunity to raise its defence to challenge.
10

the same in a manner provided in the Companies Act, Cap 212 and
Company (Insolvency) Rules, 2005.
In the upshot this application is hereby struck out. No order as to costs.
Dated at Arusha this 11th day of August, 2020

Signed
B.K Phillip
Judge

Source : https://tanzlii.org/tz/judgment/high-court-commercial-division/2020/1995-0
 
Hotel zinakuwa hostel za watoto na viwanda vipo hoi bin taaban.

Tanzania ya uchumi wa kati ina vituko
 
Etwege said:
Hiyo ni habari nzuri sana kwa chadema leo watashangilia usiku kucha.
Click to expand...
Acha kuchukulia kila kitu kisiasa
Great mind discuss ideas na issues
Sasa haya ndo maswala muhimu usilete siasa za kichama kwenye maswala nyeti ya uchumi .
umejaza propaganda kwenye akili zako...
 
Hivi ilani ya uchaguzi ya chama chetu ilitaja viwanda tena kama ilivyokuwa 2015 au waligundua kuwa kabla ya viwanda tunahitaji nishati?
 
Mods mmefanya vizuri kurekebisha heading ya uzi lakini nadhani mlipaswa pia kumchukulia hatua Return of underpants kwanza kwa kuleta uzi wa uongo lakini pia kwa kuwa na mood ya kufurahia issue nzima kama ingekuwa ya ukweli.. Haitakii mema nchi, sio mzalendo.. Kama watu wa dizain yake wanastahili vitanzi same here alipaswa kupewa kitanzi cha ki-JF..
 
Haya Mambo yetu yashanishinda taarifa inakanushwa baadaye ukweli unatoka Kama majibu ya mitihani.
 
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