Mashado Game Fishing Lodge Ltd and Others v Board of Trustees of Tanganyika National Parks (Civil Case No. 9 of 2000) [2000] TZHC 696 (17 November 2000)

MASHADO GAME FISHING LODGE LTD AND TWO OTHERS v. BOARD „, A OF TRUSTEES OF TANGANYIKA NATIONAL PARKS (t/aTANAPA) 319 of the matter has been taken away as it were. Consequently, there is no election which the court is called upon to declare null and void. Accordingly, the objection is sustained. The appeal is incompetent, it is struck out. The circumstances of the case are, in our view, such that we feel it is undesirable to award costs. Each party to bear his costs. MASHADO GAME FISHING LODGE LTD AND TWO OTHERS v. BOARD OF TRUSTEES OF TANGANYIKA NATIONAL PARKS (t/a TANAPA) HIGH COURT OF TANZANIA AT ARUSHA (NMMushi, J.) CIVIL CASE No. 9 OF 2000 Civil Practice and Procedure - Pleadings - Pleadings not disclosing a cause of action -Cause of action defined. The first plaintiff failed to get consent from the defendant to assign the remainder of the the term of its lease to the third plaintiff. After that failure the plaintiffs instituted proceedings in the High Court for diverse relief, including, a declaration that the defendant ’ s action of withholding constent to the re-assignment of the leases to the third plaintiff was unreasonable and, therefore, null and void. Counsel for the defendant raised a preliminary objection that the plaintiffs had not disclosed a cause of action . The trial judge considered the meaning of “ cause of action ” , and whether the plain! disclosed a cause of action. Held: (i) A person is said to have a cause of action against another where that person has a right and the other person has infringed or breached that right with the result that the person with the right suffers material loss or any other loss;

320 TANZANIA LAW REPORTS [2002] T.L.R. A (ii) Since the third plaintiff has no right which could be infringed by the defendant, the third defendant has no cause of action against the defendant; (iii) There being no relationship between the second plaintiff and the defendant, the second plaintiff has no cause of action against the defendant; B (iv) As there is a relationship giving rise to rights and obligations between the first plaintiff and the defendant with regard to the leases, and since the first plaintiff believes he has a right to assign the lease, the first plaintiff has a cause of action against the c defendant. Plaint in respect of second and third Plaintiffs is rejected Mr D 'Souza, for the Plaintiffs jj Professor Mwaikusa, for the Defendant RULING (Delivered 17 November 2000) E NM Mushi, J.: Mashado Game Fishing Lodge Ltd, to be referred to in this action as Mashado I, Mashado Luxury Tented Safari ’ s Ltd, to be referred to as Mashado II, and Abercrombie and Kent (Tanzania) F Ltd), to be referred to as A and K, are the plaintiffs in this case and Mashado I and II are suing through their receivers and managers. The defendant is the Board of Trustees of Tanganyika National Parks, t/aTANAPA. (-I The defendant manages the National Parks in Tanzania. It has the control of the land, flora and fauna. The defendant has unfettered authority to lease any portion of the land to interested parties. Mashado I has leased some land from the defendant, for a period of time. The H leases are in respect of land in Ngorongoro and Tarangire National Parks. Mashado I has built in the leased land what have been called “ Luxury Tended Camps ” . The business in these Luxury tended Camps is owned, run or managed by Mashado II. Both Mashado I and II are I under receivership. The receiver/manager of Mashado II has secured a buyer of the assets and business of the Luxury Tended Camps. The

MASHADO GAME FISHING LODGE LTD AND TWO OTHERS v. BOARD 321 OF TRUSTEES OF TANGANYIKA NATIONAL PARKS ( t/a TAN APA ) interested buyer is A and K. Tanzania Ltd. i.e. third plaintiff. The third plaintiff is ready to buy the assets and business on condition that the remaining period of the lease of Mashado I is reassigned to them. Mashado I and II have no objection to the remaining period of the lease being re-assigned to A and K. The defendant was requested to consent to such re-assignment but refused to consent to re-assignment of lease to A and K. The plaintiffs have thus instituted proceedings in this Court seeking inter alia, the following reliefs, namely: (a) A declaration that the defendants ’ action of with-holding their consent to the re-assignment of the leases to Abercrombie & Kent (I) Ltd. is unreasonable and therefore mill and void. (b) That corollary to the court ’ s declaration in paragraph (a) above, the re-assignment of the leases by Mashado Game Fishing Lodge Ltd. (through its subsidiary company Mashado Luxury Tented Safaris Ltd.) to Abercrombie & Kent (T) Ltd. is proper in law. (c) That a Permanent Injuction be issued against the defendants, by itself, their agents or servants or any person purporting to derive title from the defendant from interfering in the Plaintiffs ’ right to possess and operate the fore-mentioned camps situated on the leased land . The defendant has in its written statement of defence raised preliminary ’ objection on the grounds that the first, second and third plaintiffs have no cause of action against the defendant. This ruling is therefore, in respect of this preliminary objection. The defendant is represented by Professor Mwaikusa while Mr D ’ Souza, learned cousel represents the plaintiff. Learned counsels, for special reasons, were granted leave to submit their arguments in writing. Both counsels have submitted authoritative legal arguments and I wish to thank them for their industry. The objection is that the plaintiffs have no cause of action against the defendant. The question now, is, what is this thing called cause of action. To put it simply, a person is said to have a cause of action

322 TANZANIA LAW REPORTS [2002]T.L.R. A against another, where that person has a right and that the other person has infringed or breached that right with the result that the person with the right suffers material loss or any other loss. Thus, the person with the infringed right can sue the other person in a court of law B seeking remedy for such infringement. Professor Mwaikusa, in his submission has professionally stated what the cause of Action is when he writes, and I quote: 3.1 As it is, the Civil Procedure Code 1966 does not define what is or what constitutes a cause of action. It is generally understood, however, that a cause of action is the basis upon which the plaintiff ’ s complaint arises. A cause of action arises when a right of the plaintiff is breached or infringed upon as a result or on account of some act or omission D of the defendant. 3.2 In that regard, some commentaries on the Indian Code of Civil Procedure, whose relevant provisions are in pari materia with our Civil Procedure Code 1966, may be referred to. According to PC Mogha, The Law E of Pleadings in India, Eastern Law House, Calcutta 1987 (Annex JT-1), “ cause of action ” means every fact which, if traversed, the plaintiff must prove so as to get a judgment in his favour (page 185). The author further states, at page 267. F Cause of action means every fact which would be necessary for the plaintiff to prove in order to support his title to a decree, in other words, it is a bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in the suit. G And in another work, NS.Bindra ’ s Pleadings and Practice, (8 ed), Allahabad 1997 (Annex JT-2) at page 221 it I stated: A cause of action is the sum total of all those allegations upon which the H right to the relief claimed is founded. A plaintiff ’ s cause of action is, therefore, not only the right which he asserts but the infringement of it by the defendant. Learned counsel, Mr D ’ Souza, has not made any comment on the 1 aspects of what constitutes a cause of action as stated by Professor

MASHADO GAME FISHING LODGE LTD AND TWO OTHERS v. BOARD 323 OF TRUSTEES OF TANGANYIKA NATIONAL PARKS (t/a TANAPA) Mwaikusa; what Professor Mwaikusa has stated is the Law as I A understand it. Let me now apply the law to the facts in this case. The subject matter in the whole of the pleadings is the leases held by Mashado I as the LESSEE and granted by the defendant as the LESSOR. Starting B with the third plaintiff, A and K, what right has it got in the leases held by the Mashado L? A and K is a stranger with respect to the lessers with no rights at all. All that it has in connection with the leases is the interest it has shown to buy the assets and business of c Luxury Tended Camps which are situated in the leased land owned by Mashado I and managed by Mashado II. A and K is not known by the defendant, because they have no business with them and they have not in any way infringed on its rights and Aand K clearly can u not say with any truth that any of its rights have been infringed by the defendant. A and K, has therefore no cause of action against the defendant on any matter touching on the leases between Mashado I and the defendant. E I turn now to Mashado II. According to the plaint we are told that Mashado II was formed for the purposes of, and I quote part of para 10 of the plaint: F The aim and objective of Mashado Luxury Tented Safari ’ s Ltd was to own, manage and run the Tented Camps which had been acquired by Mashado Game Fishing Lodge Ltd from Ker and Downey Safaris Ltd. The Tented Camps are situated in the lands under the leases of Mashado f . I. Thus Mashado II is 4j°t the owner of the leases. They were only carrying on business on the camps on an arrangement between them and the owner of the leases, i.e. Mashado I. They have the right to sell their assets and business to A and K but the leases on which th e business is to be operated by A and K remain that of Mashado I. They cannot on their own ask the defendant to re-assign the leases to A and K, because the leases do not belong to them. And therefore they cannot bring any action against the defendant in respect of the leases. They have no cause of action against the defendant. ’

324 TANZANIALAW REPORTS [2002]T.L.R. A The last party is Mashado I. Regarding this party, Professor Mwaikusa submitted, and I quote: 4.2 That Mashado I has no cause of action seems obvious enough. No where in the plaint is it alleged that any right of Mashado I is or has bee infringed by TANAPA as far as the fact reveal, the lease agreements between TANAPA and Mashado I remain intact between those two ... TANAPA has not said or done anything to Mashado I and Mashado I has absolutely no basis for complaint against TANAPA, and indeed C the plaint does not disclose any such complaint by Mashado I. We should perhaps just mention that even the Notice to vacate was not served on Mashado I, It was served on other parties who were the ones specifically intended to be served with that Notice. D Learned counsel, Mr D ’ Souza, in his submission stated, and I quote: A3. On the refusal of consent, to the assignment and on the notice to vacate E In his submissions the learned counsel for defendant glosses over the facts relating to this aspect. In paragraph 15 of the WSD the defendant admits that the leases still subsist and are yet to revert to the defendant. We agree. The position is therefore the leases subsist with first plaintiff. F The second plaintiff is the owner of the assets on behalf or as agent of its mother company, first plaintiff- A and K(T) Ltd were appointed managing agents of second plaintiff as per letter ref: MB/Mashado/46/99 of 8/7/99 which is Annex TNP-3 to the WSD. G Mashado I as holder of majority shares in Mashado II must be fully aware of how the company is operating. It must therefore be aware of the intended sale of the assets and business of Mashado II. Mashado I must also be aware of the conditions given by A and K before acquiring H the assets and business from Mashado II. The condition is that the un-expired period of the leases of Mashado I be re-assigned to them. That is why in the Deed of Assignment - Annexure A, it is stated, I quote: I

MASHADO GAME FISHING LODGE LTD AND TWO OTHERS v. BOARD OF TRUSTEES OF TANGANYIKA NATIONAL PARKS (t/a TANAPA) DEED OF ASSIGNMENT THIS ASSIGNMENT is made this 5 May 1999 BETWEEN MASH a DO GAME FISHING LODGE LIMITED (through its subsidiary Company MASHADO LUXURY TENTED SAFARIS LIMITED) (Here m -after referred to as the Assignor) of the one part and ABERCROMBIE & KENT (T) LTD (hereinafter referred to as the Assignee of the other Part) It will be noted that I have not referred to some of the arguments in the submissions, particularly, those of the counsel for the piamtiiT. This is because greater portion of those arguments relate to whether or not the leases can be reassigned, a matter which is not determinable at this stage. Before I part with this matter, I wish to say a few words. Among the documents filed in this case is a letter from receiver/ ------- manager of Mashado II ad d r ess ed to Director General of TANAPA . In that letter, it is stated and 1 quote: The Advocates for the plaintiffs and the defendant appeared before the High Court or, the 2 August 2000 and they were instructed by the Honourable Judge Mushi to try again to negotiate and settle this matter out of Court for the following reasons:

1. That this was a business transaction and was therefore an appropriate matter to be arbitrated and settled out of Court.
2. That although the Honourable Judge had not made up his mind it appears on the face of it that it may not be possible for any of the parties to win a hundred percent outright. The Honourable Judge is inclined to view that the demand for vacant possession by TA NA PA is out of place as the Leases still existed as far as Mashado Game Fishing Lodge Limited was oncemed and they could operate through any agent if they so chose. However the Honourable Judge had doubts whether the TANAPA Leases could be treat just like “ Ordimuy Leases ” to which received law could be applied as far as our assertion that the leases could be assigned without any consent.

326 TANZANIA LAWREPORTS[2002]T.L.R, A Let me say that my thoughts are correctly stated. At that time all the parties were of the view that a settlement was very much a possibility and were openly exploring possible reasons. On further scrutiny of the pleadings and the correspondence between the parties, it is apparent B that any legal decision one way or the other, its effects will not be limited to the interests of the parties only. It will have more far reaching effects. Tourism industry and investment in the country as a whole is likely to be affected; other sectors of the national economy c are likely to be affected. If that be the case, there is certainly need for careful and exhaustive consultations with interested partiesas to what should be the policy with regard to re-assignment of leases in the National Parks. I say so, because there has been a previous re-assignment. To reach such a decision it requires time but there is not much time regarding the matter at hand. IN THE MATTER OF COMPANIES ORDINANCE AND IN THE MATTER OF FAHARI BOTTLERS LIMITED BETWEEN FAH ARI BOTTLERS LIMITED AND THE REGISTRAR OF COMPANIES AND NBC (1997) LIMITED AND OTHERS (OBJECTOR) HIGH COURT OF TANZANIA AT DARES SALAAM Ajr (Kalegeya, J.) MISCELLANEOUS CIVIL CAUSE No. 155 OF 1998 H (Consolidated with Miscellaneous Civil Causes Nos. 146,147,148,149,150,151,152,153 and 154 by order ofthe Court dated 16 July 1999) Company law - Scheme of arrangement - Approval of scheme of arrangement I - Principles to be taken on board before sanctioning such approval - Section 154 of the Companies Ordinance Chapter 212.