Mashado Game Fishing Lodge Ltd and Others vs Board of Trustees of Tanganyika National Parks (Civil Case No. 9 of 2000) [2000] TZHC 543 (17 November 2000)

:•_!_. •'-·' t IN THE HIGH COUHT OF TANZANIA qs:rA CIVIL CASE NO 9 OF 2000

1. MASHADO GAME FISHING LODGE LTD 2: ➔ :}1ASfL\DO LUXURY '1 1 ENTED SAFARIS LTD
2. ABERCROHBIE & KENT (TANZ,\NIA) LTD

• VRS - l·······PL.\INTIFFS THE BOiUID, OF TRUSTES$ OF TANG: ... NYIKA. ., 0 ... • ·mEFENDANTS . -N:'\TIONii.L PARKS. t/a r.i'\NAPA _, _; Mashdo Game FishiR Lodge Ltd' ..;. :·. to be ref el'r(f9· to .in this' action as Ma~~w.do I, Mashado Luxury Tented Safari's Ltd - to be referred to a:S ;Masha.do .LI,'. and Abercombie & Kent (Tanzania Ltd,) - to be refferred to as A & K. are the Plaintiffs is this case and Mashado I and II are suing through · their receivers/managers. The defendant is the Bocd'd of Trustees of Tanganyika Na.tional Parks t/a TANt,.Pilo The defendant manages'"the Nat:ional Parks in Tanzania. It has the -, controll of the land, Flo'ra and Fauna. 'rhe defendant ha μnfe;tered J ' .· - . . authority to lease any portion of. the land to interested,,,pc¢td.es. 1,, ··I·. j.·•·. \ f Mashado 1 hae leased some land fr;fu: the defendant, fu:!;',;·.,p:eiiod of time. ':':" . .'.--._,:.· ·,': . ·. ' . . , : -.· · .. ' · . -:- ;'-': . _ -. The leasess are in respect with land :r.n :Ngqr-ongor() arid: ,-:Trutangi::rre · National Parks. Mashado 1 has built in the leased lruid ,hat llavi(ben ,- .. ')· called "Luxury Tented Camps, ! .. ' The business in the§ 11..nrury tented· Camps is owned, run or managed by Mashado 11. Both l'iashado 1 and: 14 are under receivership. ·• T-he. receiver/manager of Mashado II has sectrr•,c{ buyer of the assets and business of t_he Luxury Tented Camps~ 'I'he cirtferewted buyer is A & K. - T-cih'.z:an;ia Ltd.· Le 3rd Plaintiff. The 3ft':pl-aintiff is ready to buy the assets and usiness on condition that th.e'r-emaining period of thE: lea,$,; o:(jli)asa.do I is reassigned to them~ > 0 ·t~~~hado I and • . •· . l II have no objection to the remaininc period of the lease being re-assi- gned to A & K. 'l'he defendant was requested to consent to such re-assig- nement but refused to consent to re-assignment of leases to A and K • • •.• • • 2/-

2 The Plaintiffs have thus instituted proceedings in this court seeking interalia., the following reliefs: namely; · tiCa) .!\ declarationthat the Defendants' action of with-holding their consent to the re-assignment ··;of the Leases to •i-bP.rcromhie & K.mt (T) Ltd is unreasonable and therc::fore null and void. (b) That coronary to the Court's declcl.ration in paragraph (a.) above, tho re-assignment of the leases by l'lashado Game Fishing Lodge Ltd. (through its subsidiary company Mashado Luxury 'i\mted Safaris Ltd) to Abercrombie g,. Kent (T) Ltd, is proper in law. (c) That a permanent Injunction be issued against the Def,::ndants, by itself, their agents or S8rvo.nts or any person purpo.cting to derive tit_le from the Defendant from interfering. in the · ·· Plaintiffs' right to possess and operate th0 fore-mentioned camps situate on the leased land" 1 • The defendant, has in its written statement of defence raised preliminary Objection on the grounds that the 1t\ 2rid and '.3rd. Plaintiffs hsv:e di'6 cause of action age.inst the defendant. This ruling, is therefore, in respect with this preliminary Objection. The defondant is represented by Professor Mwaikusa i.,,hile Mr. D\Souza, learned counsel represents the PlnintifL · Learned Couns_els, ' •. ,--1• ··.: f . 1 · .·• . t d 1 ).. ' - .. t.. -'-¼ -.·-· :· \ , ::"i t . or pec;.:;i.@.· ,.reasons,_ were;.gr:u1 -e eave ..,o suo11,l_1., .. v.,.,L arg1m1:m s in writ,tiri.F;,,.'i,•, Both counsels haye submitted authoritative l0gal arguments • ','i.J. ·' and I. wish· to thank them for their inchrntry ,. c.· <J - . ctgainst th8 defendant •. The· q'uesticn TW~w i,s, vJbat is this thing called . . ·._,· --- cause "o:attion TQ put it sim:ply, ,, ')•;;('.zon, is sa:;.d to have a c2.use of action •a.gaiJ~~ ~n;h:r:,, ~;herJ that pe,;s;1,, pas: a' right and that the other . ,- ·r,, .. pf;,r.p0n ha1f''infringed or breached that right v:ith the result that the . __ :....:•. preson;with. the right suffers material -.pss ,or any other loss. Thus, the prcson with the infringed ri1.:,ht cat?,,!3/.ic .. 1,the other preson in a .. · ~ . . . - . court of law seeldn, romedy for such in_fr,igcment: Professor, Hwaikusa, in his sul::;i'n:fssion has professionally stetted what the cause of ••ction is wh0n he writes, and.+ quote:- i 1 3. 1 ,'.s it. is, the Civil Procedure.•:G'odc 1966 does not define what is or what constitutes a cause of .action. It is gen<:::rally understood, however, that a cause of action is the basj,s upon which JhG Plaintiff's complaint arises • . A cause of actiol\ arises· when a.right of the Plaintiff is broached or infringed upon as a result or. qn account of some act or commission of the De·fendant. • • • • o3/- •

J . 3 In that regard, some comnientaries. on the Ind·i;a~. Gode of Civil Procedure, whose :r:,elevant provisions ar.e in .pari mateia with our* Civil Procedure Code 1966, ·J1ay t0 r,3ferred to. ,lccording to P.C. Mogha. Th0 Law 9£ pl,3_9.di,17-gs in India, Eastern La~: Ifouse,, palcutta .. 1987 ( .. nnex·JT..;1) Couse of action,1 ·means: every fact·:· · . . . '·v which, if trav1;,rsed, , the plain tiff mu."st prove· so, as . to gt a judgement in his f,vour (P,185);,:·The author· further states, at Po267. -· ·· · • 11 Cause of action means every fact which would be necessary for 1 thc Plaintiff to prove in order to support his title to a decree, in other words, it is a bundle of assent,ial · facts .which it is necessary for the Plaintiff to prove before he can succeed in the suit:! • .• nd in another work, N.S. Bindra's Pleadih s. nd 12ra¢Ji9_e. 8th Edition, ... lllabab"act 1·997 inne'x'JT-2) at ?221 it is stated, iiA cause of action is the sum total of all those ·allegations upon which the right. to the rclie{.ciilriied is founded. i\ plaintiff's •,_ cause of action is, therefor, not only the right which h0 asserts but ,the infringement of it by the defond6.nt. ;: · Learned cou.nsel, Vir. D' Souza I has not rnade arr7 comment on the aspects of what constitutes a cause of action as stated by Profossor Mwa;j.kusao .. •· . -: . · .. , .. , :· .. ,2: •. ,f What Professoi 11waikusa ria5: stated is he La:w· as I understand 1 t:\ f, Let mG- ·½;_otv ·apply the Law to the ·racts ilt th1s -case. · The subject matter ip the 'whole of the pkadin 5s is t_l1e _J_e 0 ee? hld by M9- 9 hado l ' as the LE3SEE and granted hy the defendant· as the L'?iSSOR~ Starti-ng ,. ...... -_ ........... with the 3rd Plaintii'f, .i:&K• what right has it got in th8 leases held by the Masha do o I. . A 8: K . is a strrigm:·, with re13p0ct to the leas.es . . . . . with no rights, ·at all. · ,:11 that it -has -in connection wHh the leD.ses Tented Camps which are situated in the lea.Bed· land 6l•ih<id bj Miishado I and managed by Mashado rr ~. & K i9:~Rit;:n9w ¥ -t~~ -d{endcip{,: because they have no businrns with them: :and tl'.:if§y ':have not in any ·way infrinf'.ed on its rihts and .i&l';: cli-srly:: can :.hoif s~y d,i.iith any truth that any of its rights h:we b0en infringed' bV' the d,efenaant. ii.& K, has there- - ~ ' fore no cause of action aga::imst' the -:defendant on any matter touching .. ' on the leases between Mashado I-and the defendant .. .• .. I turn now to Mashado II.. .iccor:,cttng the the plaint, we are told tp.at Mashado II 'das formed for the pu_rposcs of, and_ I __ quote part of para 10 of tho plaint: ••.do t'1 041. 4/-

4 i 1 The aim and objective of Hash.ado Luxury Tented Safari's Ltd was to own, manage D.nd run th0 'rented Camps which had beon acquired by Mashado Game ., • li'ishing Lodge Ltd from Ker & Dm-mey Safaris Ltd." The 'fented Camps are situated in th0 lnnds under the leases of Mashado f• This Mashado II is not the owner of the leases. Tht:y were only earrying on business on tho camps on an arang•ment between .. them :md the owner of the leases, ie Ma.sha.do I. 'I'hey have the right to sell their 2..ssGts and btisinGss to .'i._&_K, But the leases on 1:1hich •·· .. the Jusiness is to be opernted by • &: K remain that of Mashado I. They cnn not on their own ask tha defenrlant.to re-o.ssign the leases to ,, & K, beeauso the lc:ases do not bdong to them: And therefore they cnnot brin! any actton ;::gA-inst tho clef;.::nc1ant in resp8ct with the lBases. They have no cause of action against the defendant. •· The lnst po.rty is Mashado I. Hags.rding this party, Prof. Mwaikusa submitted, mid I quote:- . 11 4.2 'rhat ifashado I has no cause of action seems nbvious enough. No wh8re in the.plaint is it alleged that 3J1Y ric;ht of MRshado I is or ho.s been infringed by 'fANAP.l. As far as the. fact reveal, the lose asreements between T'AlAPA nns Mash2do I remain intact b2t\1een those two. T,-rnAPA has not said or done anything to Mashado I and Hashado I has absolutedly no basis for complaint c?.,gainst Ti-i!JAPA, and indeed the Fl::tint does not di 9 clo?-e. n;ty such complo.int by fbsl:1.:-..:.lo Io hie should perhaps just mention that th•:: Notice to vacate was not served. on Ma.slfodo Io ·. It t1ns sceved on other prties who were the one, specifi- cally i.ntl;)ded :to :.be serveci with that Ifofice; 1 ... . . -- Learned Counsel, Jvir. D'Souza, in his submim:ion ._stP.ted; ·and I quote:- . . r., UA3. 6n th ref1:!SG.l of cons ant, to tho assis-nmen~ on the notice to vo.cate In his. submiss:i.ons: .. tb--;:; leili'ned counsel fo~ defendant ·glosses ~~er-the facts .relating t9 thi~. aspect~·. · · In ua.ra. 15 of the· WSD ·the defendant admits that tbe le!:J;es stil:). subsist aniJ a.re yet to revert to the ·· defendant. We ae;ree •.. ':i;he ._positiqn :is .therefore the le3.ses subsist vift"h 1st .. plaintiff. The 2nd Plaintiff is the owner :of the assets on· behalf or as agent of its mother compar,ty, 1st pl 9 intiff, :- A & K {T) Ltd were· 'appointed managing agents of' 2nd plaintiff a:, per letter Ref:· MB/Mashado/46/99 o'r 8/7/99 whicl1 is An...'"lex .NP-3 to the, Written .Statement of Defence' 1 ., Nashado I as holder of majority shares i.n Masha.do II must be fully awc1.re of how the company is operaing. It.must therefore be aware of the intended sale of the assets anq..business of Mashado II. Ma.shad.o I must also be aware of the conditons given by A.& K before acquirine; the assets and business from Masha.do- II. MThe condition is that the un- expired period of th,: h,ases of Piasl:-iado I be re.,;assigned• to them. That is why in the Deed of :.ssig:nment - ilnnexture A, it is stated, I quote: &•noo••5/- • •

J • • ·,.,::, '. • f :,:. • .; ,.,•' ' . (-._.,·•:·.' •. ' ··;:,. 1"- ·,.,;·' ,..· ••. ,. f,1' ;:~ •.·. i ':·,~ :·'"'fi ,• c• ,\ , . ,it I . -._ .. •.-. '·. ,•.,,, .. ,.,, ... ,..5-,,,itlll•f'-'tYf,•".,'l'' .• ·;,;,.,,-•,.,.) ·1·:1,,' .• " . j\ t¥"l~~ .. )t• Al - ·' .' '·.·;:,/:~1-\ .. tN.A'l:.,<,, .; - · ·--:;· .. ~ 11 ;.';,.:---¥ f-,,:··'i.. J'!.-.··:.1,,,·::-~ .... :=·;,·~ t• ~ ·1= -; -··;'-'fi.1. ;=:i1 .•. .- .. -: _ _:,;__:.:.:Er)*'is 2 'rtt1t.;;; r~ b .• h __ :,,id ......... :.1_..:.:":.---· . . • , ' . " ·~ 'i " .•. , 'D,t; .. . 'I. fl!'.. . i--·--:-. -11¢ .. -.,, er.,:•1 , .. 91, • .-_..- .• ;: t, ''t,( \ "i'H$,.J}9;.§Ql{iNT i ~~e th.is. 5tiiti; --;:;;- r-r;-·-,:·999·' ~ · ,. ~ ·. :• . BE'rWEEN Ml.SlL'.DO G .1-.1':'lE FISHING LODGE ·LH1I'i'ED ( through its subsidiary Comany"' rJi:lSHADO LUXlT.RY ·l'ENTED SAF/,RIS LIMITED) ( h0r~n-:-~ftef: .IJ.f,rtd tG s ·the: · Assignor) of he_.'JW2Pi.,~~~ ~1!:Fl◊,R~~~-:· fr) LT. (here-- in-•a-f.ter ~~i:;~t!fili Jg . . _, he";dtμer

• ""' - .,, ;.::;;,,/!, - . . ·i!ll/{5"<. "' •' :~ ):::t;p.;i~~~h'- - - . . . ' .YdERE AS:- .. ..•,· · ··'.11•..-.1:.,-:r.1'tr-- 4 ~ •• ;-: • •• •• --- ... - .. _...., .. ·., ,:4./t•; .:1~~"'~~_,.-:. ::< ·;:',:·:':'t:·. . . ;•-·· .:·-:.:;:;.r{k .};:i(:,·:"!i~::: :,· .~: ... •. 1 _ :· .. , : . ~l,n of · a:rruary, •19.92. respec ... ., y.':',.. : 11:W--·artr ......... ·.·:c.,,,,"··· . ..,.,.,. ·- :--·•. "'.•r. · .. . . .'i.; 1 .:Jlefererred 1 o the. Head Leases). between The Board of . ·•··.· ,.,,:.··t·.. · · · . ""!,(I.e.· ••. ,. -·-:-j}J'.:,i;"::,".,Trust'ees of ·:,Caj-lfania National Pr.~ 9 of ·P. Oo Box )13·/+~ . ..... · . . . < /~ · ... ,'',, · Ar-usha and Ke'f:·& Downey Safaris Limited of Po o. Box .t't,:, 78, Arusha for Iiand sitated in :rrangire, Serengeti ,,. s ·· i(usini and North Serengeti (Wo 6 akuria) for terms of ,i~, 33 years i.e. up to 202}. on the said Land were situated ' three Luxury Tented Camps. · (2) On the 31st da.y of May, 1996 .the unexpired portions of the Lases were.re-assigned to Mashado Game Fishig Limited by Ker·,~ Downey afaris Ltd Suojct to same covemmts and condihons ·there,:-in contained • .... (3) Th€ Board of Trustees of TANAPA approved the re.a.&6igrul!ent in it's 2·)_rd ivieeting held on the 25th. o_f _June, 1997. '\ •·· ~ • , • • ,J - DEEi ··Jii 1 riE~~~~:~~~2:i;~~~~-·--·:;,~~:t:.'.,.·::· .. :: .• >/i ;. \ •.10 Tha'Ci-1ihd0Gain~"'Fi~~{i\fodge'.'.:'L1.fute'd~~~.t1irugh its . . iulisidiary Company Mashado Luxury 'l'ented Safaris Limited) ,. ~ I ,-_ ~ has rt'lii.e,ssigned. the· un-,expired. portions of the Leaset: •· . ' ,, .· ~ \ •. ·' a.fo:r-e_-menti9ned._ to :Abi;;;t:r-obb:·&·,Knt (T) .Ltd, m, .. ". ::~f!·; ·:--i:'~~!..t-. ·,~~i .. :t: .. · ::.;·.!. 't. • ? .. ·>' .. >~~t! .~~., . . . . J J

2. ine 1.ss1gnee,·...,:,e,.J .,un':?,&!11?1.e &: J<;e~ 1 ,till· be __ subJ ec ~ .o . .. . ..... ~ -r :..:- . ... , , ="' :,J .. .. .. ~ .(.\ 1v;'t • •• ·--t ... . ·.he1~~i,if,. ·ov 11a!At1:. · ::f,}·fftilit1r.d·· ccfod.itins'"' as a&!. er n:sa:i:., ', ,-. -• ~ ,., • • .... "'•• .... ",.'" __ ....,,,.,.:k,"'--- ••• ,/ d)'. ,,. li ........ ~ ".,;:./- lj'•e :,.,-_ - • • -• .. ... • "'• •. •T .. ~ ,#., • ~ ~ - ,,,,,,_ • , ..... .( } t"'1P.1 •--~~~m ·"'?f:-- ~~ • .....,.. - ~ in the He/:td Ireas1 r:;,::c .: :.t. :·r;1,{ boa:I'd'·"of .. .i.rust.eep; •'; · k .. ·:m_·•t&),faJ"Wt"''•:!:'.fiftr·;--- :6...,m'c ··wf$,,.-f&, •·.· : il ~ -= ~ ~ "· ~ ·. -.ceil-.i ~~~a•~· -'7 3 . ..__: ic!ir}l.-j! mi ,. ~~~r3.D. .--': ·d • r I ! i :. .,,f "'1 . •4_ . , :· . ,. . r, . •• ,,: .... ,..{.f--....,,i. i ':(,,i'/' .. r.'• , "' , . ..... ~ . :.-,-.: ,. ·r.;. - . . St;.. . .. :Jc,'Fl~,e ,de/C,P.-!¥!fif:1U_? __ l!ave read 1 i< ·'" .' ·, ci .: ;;.nd refus-"'. 1 t.(: r0as.1 ,;n... .,•"- · ·· · was dc:-f'i'i'1ly' directed to thorn., : i·. e~ i-iashacio -I. · There iG :i, douL-:; . ·IS '' tthi:t· 't·iashado I is a h:ssce of tne leases leased from L18 r1"'::0::.·.2,.1t I.- ' as the leasor. Thore is a dispute as to whether tho leaee hc.3 the .. ,.. rig-ht to reassign the_ loases with or without the consent of th,-' lessor. The differences of the parties on the issue of reassignment justifiably be refe1red to the.:'court for resolution. The rosult is therefore that Mashado II and A & K have no cause of action against the defendant and the plaint regarding. them in these ; ' 'l- ~ . .: ' :- ' ·: . /~ '.-, ' i·•'"'l'l .... .,. · .. pleadings is accordingly rejected. The first. plaintiff' i.e "t1asliado I :-- . ; has,· i:/ cause of action ,agairit tlie 'afriaa'i-it~.',,~ The:\fefendro-it is awa.rd :i, " .,,r J i , ~ t , -·~ ' - .. · f!.r'' .- _ ,costs. ' ..•.. . 6/ ... . , -. ,· '·'::• ·~ , . ·. :._-,.;. ;':'-~ ~~,-. : . . ~~' •• :1 . · r.i•

6 - I It will be noted that I have not.referred to some of the arguments in the submissions, Particularly, those of the counsel for the plaintiff. This is because greater portion of those argumen~·relate to whether or not the leases can be re-assigned, a c '.matter which .is not determinable at this stage. Before I pnrt with this matter, I wish to say a few words, ,\mong the documents filed: in this' case is a letter from receiver/manager of Mashado II addressed to Director General of T:NAPA. In that lettl}r, it is stated and I quote:- iiThe Advocates for the Plaintiffs and the Defendant appeared before the High Court on th0 2nd of August 2000 and they were instructed ·oy the Honourable Judge Mushi to try again to negotiate and settled this matter out of Court for the following reasons:- ( 1.) .'l'hat •:.::;:thii:f ,-ias a business'. fransaction and was there- fore an appropriate matter to be arbitrated and su.ttled out of Court. · That, although the Honourable Judge had not made up h;i.s rn:ind it appears on the face of it that it may not be possible for any of the parties to wi a hundred parcent outright••; 'Th.ii 1Ionou;abl e Judge is in~lined • to .vie'lj_ th,:d the demand .for ·vaeant possession .. by Tf.N.P;. is ont of p:tace a5 the Leases still existed as fhPCas''Hashado Grune Fishing Lodge Limited was concer.ned.and they could operate through any agent'if they so chose. However the Honourable Judge had doubts whether· the T.iNAPA Leases could be treat j4st like 0 ordinary Leases" to \vhich received · 1aw ," c:"ould be applied as far as our assertion that the :teases could b assigned without any consent. 11 Let me say that my thoughts are corectly stated. .At that time all the pRrties were Qi' the view that a settlement was a very much a possibility and were openly exploring possible reasons. On further scrutiny of the pleadings and the correspondences between the partie, it is apparent 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 for reaching effeetse Tourism industry and investment in the country, as a whole is likely to be · affected. 0:ther sectors of the f:ational economy are likely to be affected. If that be the case, there is certainly need for careful and ~xhaust;iv,econsultations with interested parties as to what should be, _the ,p_cui.qy .with regard to re.-assignment of leasses in the National Parks. ':I. sa;y .SO; j_because there has been a previous re-assignment. ... . ..... , ..

. i To reach such a decision it requires time but there is not much time regardinr:; the matter at he,nde :~ & K is already running the business in the camp a~ an agento The defendant may find it difficulat to remove them from the premisses for the rest of un-expired period of the lease sicne business wise the principal is practically dead. 17/11/2000 17/11/2000 Coram: N .M.Mushi, ,T • M.r. D 1 8ouza- advocate for thG plaintiffs Hro Ojare - advocate holding brief for Prof. Mw-,i_ikusa- :~dvocate for the defendant. Huling read in cha.rnberso · 17 /11/2.000 NMM/MS,.