Serafim Antunes Affonso vs Portan Enterprises Limited and Others (Commercial Civil Case No. 17 of 2000) [2000] TZHC 539 (26 September 2000)

.. . • ·_,.4. ' ~ lt . -·-,.: ~ .: ..!,. ~ • tA / IN THE HIGH COURT OFT ANZANIA (COMMERCIAL COURT DIVISION) AT DAR ES SALAAM COMMERCIAL CIVIL CASE NO. 17 OF 2000 SERAFIM ANTUNES AFFONSO .... ..... ............... PLAINTIFF VERSUS PORT AN ENTERPRISES Ll;\1ITED .............. l 5T DEFEDA:\T DR. EDOUARDO VIEIRJ\ PEREIRA. ............ 2:-,;o DEFENDANT DR. CANUTE MTEMA ..... ................... ...... 3Ro DEFENDANT WILDRED KJLI\VA ................................ .4n 1 DEFENDANT LUCIDA EUSTOBIOLA ..................... ....... 5T 11 DEFENDANT TII . ANDREIA FALC.\O ............................... .. 6 DEFENDANT (struck out on 28/7/2000 up.on plaintifrs pray<.>r) ESTELATO MTEi\lA ................................ 7 111 DEFENDANT REGISTRAR OF CO::IPANIES .................... 8THE DEFENDANT RULING KALEGEYA . .J: This ruling is in respect of preliminary objections raised and also an application for secu!·ity for costs. As regards preliminary ob_icl.'.tions. both camps decided to t:nkr the li•.:ld. The 3 rd • 4 th and S' h Defendants contend, That the suit Jiscloscs no cause of action au.a inst anv of thc:n ~ J (h) The ,ppointmcnt of fr. Julio ivlanuc.1 Pires da (\ista is unlawful and indlective as the donor n1· the I\i,H:·r or :\ttornl'Y had ,ilre,1.J:- appointed :rnvthcr person to :ict for him in T:mz:mia". \·.hile the PbintifL in response t<.1 the said pJ.rtics· \Hitten statement of Dclcnce urge. " .... that porogruph 12 (a). rhJ and re) ,(the HTiuen statement r/ Defence of the 3 rd . -1'1' ond f;, /)e/:11du11ts is inco111pete11t and bad in la11· and ough1 to he struck 0111 011 the ground that rhe ---=--~ /··.T Ii/~~ /"', / ·'\ ;. \ ,- (-< ·i•?\ '1~ , . . (· . j \ ! ·• I· .. ' 11 • ~ , ,· • ,,. ..... J I \ ;.;. 4 f .; ~- . .J • ) \· . --------:.- . . ,;) -----,~ .' ... :~~\ ·-.:/

matters therein could only have been validly raised by way of counter-claim ". On the application for security for costs, the 3 rd · 4 lh and 5lh Defendants pray for orders that "The plaintiff be ordered to give security to the amount of Tanzania shillings Six Hundred Million or any other amount the Honourable Court shall deem appropriate being security for payment of all costs incurred and likely to be incurred by the third, fourth and fifth Defendants in this cause within a time specfied by this Honourable Court, default of which the suit be dismissed with cos1s." The Plaintiff is represented by Maajar, Rwechungura, Karneja and Nguluma /\dvocatcs while the rt1 - 5 th Defendants are represented by Scnni Malirni. Advocates. Arguments were made by way ofvvritten submissions. I will start with the preliminary objections raised by the 3'tl - 5 th Defendants. First, on whether or not the plaint r::iises a cause of action against them. This should not deter us at all. The trite position of the lmv is that when deciding on whether or not.a cause of action is disclosed \Ne only have to cast our eyes within the four ''corners of'' the plaint. We only have to peruse the plaint alone. tPgether with its annextures, if any. f\t this stage we don't have the evidence before us: the plaintiff is simply alleging that thi..'. Defcncbnt has wronged him !'or \Vhicl1 he bclic'CS is an actionable wrong. With this limited ambit we ha\·e to assume tk1t the !'actual allegations thus nwdc. ,·hcthcr c:-:prcssly or impliedly arc true (.Jc raj Shariff & Co. v.s Chotai Fancy Stores [ l 960I EA 3 75; East African Ovcrsc:1s Trading Co. vs Tansukh S. Acharya [ 19631 E.A -468). Now, looking at the plaint before us. one is left \'ith no doubt at all that a cause of action is fully established. It is no ,·ondt.'r that in their submissions 3rJ -5 th Defendants they concede as such negating ~~the ,·er:,· objection the> arc tr:,·ing to install. :- g-:0;,T u1:~~ • ,, r'"\ .j:' r-. /; \ r. • \ . f ... (' ::' 3- ~ ...: (.. '- .. ~ I . .:·, '.r \·. : : : . 7' 'j \ '- : I ) -"-- .\ \ • ...:".-.;..·__,:,;..J . '\ . .?- " ',, .... ' .. :·. \ . /, ........... - ..,;,. -=---~

.... ' I Firs~ they maintain silence concerning 3 rd and 4 th Defendants, and when they turn to the 5 th Defendant whom they say is not touched upon at all they paint, the opposite: a totality of her involvement. The following excerpt from the submission tells it all - "My Lord reading through the Plaint, one can simply notice that there is no where in it where the fifth Defendant is named. Even the annexures filed in support of the Plaint have not indicated any contribution of the fifth Defendant. In fact my lord. paragraph 21 of the Plaint filed supports the appointment of the fifth Defendant a Director of the l s ' Defendant company. The Plaintfimher affirms that the action done by other Defendants affected her position together with that of the Plaintiff. The Plaintiff has nm-vhere in the Plaint dispwed her appointment, neither Does he object to the transfer ofshares made by him to her among Others." Herc, they involve themselves in double contradiction. And it is not hard to see the basis. The plaint and annextures clearly point to the alleged 5 th Defendant's involvement as they themselves concede in the quoted excerpt of their submission. The plaint alleges that the I 51 Defendant Company was incorporated under the laws of Tanzania on 23 rd October, 1997 \vith a share capital of Tshs.6000,0000,000.00 divided into 1000 ordinary shares of Tshs.600,000.00 each and fully allotted as follows:- 900 shares to Plaintiff I 00 shares to 3 rd Defendant in trust for one Plat in Priva Mtcma (a minor): that the Plaintiff and t1 1 Defendant became the first Directors of the I si Defendant: that without abiding by the I s t Defendant's :\rlicks nf :\ss1xiatil111. four mc-:tings which purported. among others, to change the share and 1'-lanagcrncnt structure of the Company were subsequently unlawfully held. l)dailing what took place. the pbint alleges that the I 8 th April. 1998 Meeting in which the following share transfers was intended: 350 shares tu 2 nd Defendant: 175 shares to Dr. Carlos Alberto Cap::ir Bom: 125 shares to .loao Caldeira and 25 shares to Armando Jose Lopes Ruano was nut effected: let alone the :1pp,)intmcnt -----~ -:-r :,,· -- / ' ··! ·-'. . ; .. r--· _,.. ,,,_\ ·. -. ::.- \ • ' !/'-4. :. ::, ·7 \ I :... r· :. : . .\ \ I :- . .- > I \ ".. / ;;1' . :' !/ \ -::.._: ·.. -: .·; \ - -.:... ____ -~ :-;· "-.' .· - ~~: .':··_-:.,.,.✓· --

. ,, 4 of Dr. Carlos and Joao as additional Directors the reason being that save for 3 rd defendant the lest who attended the meeting were not Company members. The plaint further alleges that on 30 th March 1999 the 3 rd Defendant purported to transfer the share held in trust of Platin as follows - 2 shares to Juma Shitta, 2 shares to Callistus Mtema; 2 shares to 7 th Defendant. 2 shares to 2 nd Defendant and 2 shares to George Mjema. The plaint maintains that there was no such transfer and the shares remained with 3 rd Defendant. Further to the above, the plaint alleges that on 22/4/99 there was a purported extra-ordinary meeting of I st Defendant Company in which the authorised share capital was increased to 1,200,000,000.00 by creation of l 000 ordinary shares of Tshs.600,000.00; Plaintiff was removed form the Company's Board of Directors and the 2 nd , 3 rd and 5 th defendant's were appointed as Directors instead. Ann. S.A - 3 supports this assertion. There is yet another meeting said to have taken place on 23/4/99 in which the Board of Directors appointed passed a resolution appointing 3 rd Defendant as a Managing Director of the 1 st Defendant Company and alloted the 1000 shares created to 2 nd Defendant. Ann. ''SA - 4" backs this up. The centre-piece of the plaint and anncxtures is that all the said actions were unlawful and illegal hence the prayers th::it all the meetings of22/4/99 and 23/4/99 be ckclarcd unlawful. with further decbrations that the Plaintiff is still the lawl'td shareholder of900 shares as is the ytt Delcndant in Trust for Platin for 100 shares: his removal from the Board of Directurs was null and \·oid and that the 1 s: Defendant Company's Board of Directors is constituted of Plaintiff and ih Defendant. Not of less significance is the allegation in the plaint and its annextures that the purported changes were filed with the Registrar of Companies on 10 th i,lay. 1999. ----:-:::::--,. /t1· - -· .-!~~ II.:..--- r- /"' '\ . : ' ( ' :?- ((~ . :· :.:;\ ~/ \ --. . .. . ... ;, . ',::: ,.,. ,/:_,, !, I"- , , . . 1 ,, , f > I • I .. _" j •; \ ~ ·.· - _ -· / ,-:~d·

. .. . ' As rightly submitted by the Counsel for plaintiff, while the 3 rd and 4 th defendants are fully intenwined with plaint hence lack of any submission regarding their alleged non- involvement, the 5 th Defendant who has been portrayed by the records of the company as being a shareholder and a member, which status are under attack and challenge, cannot escape the umbrella of the action now before us on pretext of lack of cause of action, for, in considering its existence we ha\·e to look just at the plaint and its annextures. The preliminary objection on cause of action fails. Next we tum to the alleged inapplicability of the given power of Attorney. On this, the following facts are not disputed. The plaintiff at different times has given powers of Attorney to two different persons. He first bestowed the same to one Victor Manuel Alegria Franco. This was vide a Power of Attorney signed and dated 11/2/99 and duly registered on 14/1/2000. It is entitled, "GENERAL PO!VER OF ATTORNEY know all 1;fen H 1 Jwm it may concern. " He subsequently issued another to one .Julio Manuel Pires Da Costa on 22/10/99 and this was registered on 13/1/2000. This one is entitled, "THE REGISTRATION OF DOCUMENTS ORDINANCE CAP 117 SPEC/AL POWER OF ATTORNEY .. The present suit was tiled by the later in exercise of the power so given. The Yd - 5 th Defendants are challenging that this is illegal. V/hy? They a;-c strongly on record urging, " .... 11·e dispute the clwructcr 0/1/11.: />laint!fTwho hus heen issuing Pou·ers appointing ,·/Uorneys. 11·itlw111 rugurd to the conjlict afuction rhur ma_,. arise ...... Jh1: pu11·ers so donorecl ho'e not been re'oked. The Plui11t(!}'clo11atio11 (/the pm1·u o( uttarney to Mr. Julio H'ithowjirst rernking the poH·er appoinring A:/r. Victor. is therejhre 0(110 legal effect. ·· The Plaintiffs' counsel try to repel this by arguing that there is no law \·hich prohibits a principal from appointing more than one agent unless tlh.' first is e:clusi\·el> so pro'ided. In the alternati'e. tl~~-..Jl...teir aid S.159 of the La\' of Contract ',\ \J. ,. ~ ,, ... -" . . ... ; ., . ' . .\ ,,,r- ('\ - \ ( ~ (" .,".'.;\ 7 \ \ I,; (. . '. '. ·\ ''.) .- l ;,.:/ . f • _i, '-- . . . ·,l J ~•. -----:__.; . ...>~ . • :)/ . .,.•, _:'..:.~

.. 6 Ordinance (Cap 433), that revocation or renunciation of an agency " may be expressed or may be implied in the conduct of the principal or agent respectively." There is no magic about the term 'Power- of Attorney'. As fitly put by the Plaintiff, it is an instrument authorising another to act as one's agent or attorney. The Black's Law Dictionary, 6 th Edition to which plaintiff sought support on the definition gives the generally accepted standard meaning of the tem1inology, " an instrument in writing whereby one person, as principal. appoints another as his agent and confers authoriry to perform certain specified acts or kinds of acts on behalf of principal .............. such power may be either general (full) or special (limitec~i. ,. What is before us? The obvious is that the power given to Victor is the usual. general, one depicted in the commonly used format '-'Yhilc the other one given to Julio is specific. The latter was appointed an Attorney, " to c1ct for the Principal and 011 Principul ·s account in connection with the following matters. that is to say:- i) The principal ·s interest in the Companies kn011m as lANGOL FJSI-JJ:VG CQ1,f PA!\T LIMITED AJ\D POR-TAN ENTERPRISES LIM/TD incorporated in Tanzania. ii) The principal ·s interests in the Marine Fishing Vessels k1101vn as BANUSO 11 and BANUSO ill. iii) All leg(// proceedings o.f ony description or nature whatsoe,,er in which the Principal is or may he invo!vcc/ in Tanzaniu either as plaint!fl defenclont. third party or othent·ise . .. POR-TAN ENTERPRISES Ll\llTED is the 1 ' t Defendant Cc1mpany. It should be noted that here m .. ~ arc m)t dealing \'ith a dispute bct,,ccn Victor and Julio. No one among the t\'o is challenging the other. calling in the supremacy l'r the appointment. It is just third panics \'ho arc bringing in the challenge in relation to their connections to the claim.

7 I must confess that my research did not land me on any authority or legal literature which provides that a principal who has given a power of Attorney in the nature of the one dated 11/2/99 cannot subsequently issue a specific one as the one dated 22/ l 0/99. In my opinion however, I cannot find any basis which can deter a principal from thus acting. He may have issued a general power of Attorney only to find at a particular point in time that the one with the same, for one reason or another, would not execute the duties given, on a particular subject, as soon as he (Principal) would have wanted (either because the Attorney is busy, sick, travelled to a distant place from \Vhere the power is to be exercised). I so hold, provided, the relationship thus created does not exclude the other nor create contradictions. It would then remain with the different Attorneys appointed to act according to opportunities at their disposal. I must concede that tl;is is not without prob km, because, unaware of the other, the Attorney may act in contradiction of e1ch other but this is the maximum we can lament. For that reason I cannot associate myself with the plaintiffs· proposition given in the alternative that S.159 of the Law of Contract should be invoked. in that by appointing Julio, the plaintiff, impliedly revoked or renunciated the powers earlier on given to Vich)r because while the former's powers were limited the latters' are very wide to encompass any other relationship or transaction the plaintiff may be involved in. In my view, s.159 of Cap. 433 would have come into play if the two instruments carried same substance. I find nothing wrong with the manner the powers of Attorney were issued. The fact that there is a possibility of the Attorney setting in conflicts while e;-;crcising their powers separately is irrelevant to the issue before us. Again the preliminar) objection on this is dismissed. We move on to the plaintiffs· complaint k\·clkd on para. 12 (a) and (b) and (c) of the 3 rd -5 th Defendant's Written Statement of Dclcncc in that it could only have been validly pleaded by way of counter claim. I have. at great l.:'ngths. abo\T indicated the 'arious transactions which plaintiff alleges to ha\·e been illegal. He rnds up by saying that the \ ' 1 Defendant Company·s structure and management is as it was ::it the time of incoqxm1tion (23 1 I 0 1 97) and asks ..-- - - -:--, ~ .. ··L• ij- .- ..... , / '.\ ·' '-: '"'-. . " . . ~ I°'. ,....,,,.---:-\ ... , /_: /"··. . .'-.z:·\ -:/ \ I ..::: ..: '• :• !"~ /'""/ d • • I . I i\ .(. .... J / ----..:...:...,;.~ . "'-· J·.> . ' ,, """ .. "-... , ·, . ~/ .....,_____ ..• . ,Ll.-'\ ..., __ _;;;;;,

.. 8 this court to so declare. The 3 rd

• 5 th defendants concede to the alleged illegality and unla'wfulness. However, they don ·1 end there, for while they support the claims that the purported transfers and changes were unlawful, they insist that there were other transactions, involving them, which were la¼ful, which militate against some of the plaintiffs prayers because not only him and 3 rd Defendant in Trust for minor Platin have shares but 5 th and 6 th Defendant as well hence the contentious para. 12 of the .vritten statement of defence. For clarity, even at the danger of making this ruling unnecessarily long, let me reproduce it in full including the prayers thereto: - " a) On the 1 (J1h day of July 1998, the Plaintiff executed an instrument transferring 25 shares to i,fs. Lucida Eustobiofa, the 5 1 h Defendant, and 25 shares to Ms. A.ndreia Falcao, the sixth Defendant. The instruments \•vere duly registered and share certificates duly issued to the new holders. Copies of the transfer instruments together with the copies of the share certUicates are herewith attached collectively marked Annexure "POTAN DEF.2" and the third fourth andfljih Defendants shall collectively crave for leave pf the Honourable Court to refer to them and form part of this Defence. b) That after the accomplishment of the share tram/er transaction, the PlaintiJ.f. fifth and sixth Defendant passed a resolution appointing the Plaint(ff, the flfilz and sixth Defendants Directors of the Company and the appointment was duly registered with the Registrar of Companies. Copies of the Resolution appointing the new Directors and the duly filled form No. 1-1 filed \Vith the Registrar of Companies are here,1·ith allachecl collectively marked Annex11re " PORTAN DEF. 3 ". The thin/fourth and jijih Defendants shall crave leave rl the Honourable Court to refer to them anclform part rf this defence. c) That the PlaintUf admil!ed to ha,·e sold the shares and to hm·e issued the share cert((icates to Afs. Lucic/a Eustohiola and Andreia Falcao, the fifth and sixth defendants re.)]Jectinzly. and to ;\Jr . .',i1irido11 1\leriunos !3rigw1ier Joaclii111 Ngonyani and Mr. I 'ictor :11t'grio Fronco of Tungol Compony limited ,1·ho are not porties to these procet:dings . .-1 copy of1hcJ,1.\· n1essu:seJi·om the Ploi11tif/'in the Registrars of Compcmius eluted S'" cloy o( Septemha I 9<J<J ure herc1t·ith attached marh'd A1111ex11re ''f'OR7A:V DCF.-1" wul thu third. fourth one/ jifih Defendants shcill crcm.? lea'e r!f the /lo11011ruhle Court to refer to them a11dji.Jrn1 part of this Dej'c!nce. WHEREFORE the third jimrlh andJUih Defc11clu111sjoin//\· uncl snaally prayjiJ/· the dismissal of thc suit in its enlirel' ll'ith costs u11d/i1rrher jrw !ht· dedarution tlwt 1hcy

., 9 are rightful holder of the shares transferred to them and that they are Directors of the Company as referred under paragraph 12 (a), (b) and (c) above. " The Plaintiffs' counsel argue that the claims contained in the quoted paragraph are counter-claims and should therefore have been properly so pleaded and relevant fee paid. In response, the 3 rd

• 5lh Defendants counsel insisted that indeed it is a counter- claim for which a fee of shs 100,000/= was paid after computation by the court clerk who considered that factor in the process. l should start by stating that the parties are agreed that this in substance is a counter-claim and I find no ground to differ with them. O.VIII, Rule 9(1) and (2) of the Civil Procedure Code run as under: " 9. -(]) Where in any suit rhe defendanr alleges thar he has any claim or is enrilled to any relief or remedy against the plaintiff in respect ofa cause of action accruing to the defendant before the presentation of a written sratement of his defence, the defendant may in his written statement of defence state particulars of the claim made or relief or remedy sought by him. (2) Where a counterclaim is set-up in a written statement of defence. the counterclaim shall be 1reated as a cross-suit and the written statement shall have the same effect as a plaint in a cross suit, and the pro,·isions of Order VII shall apply mutatis mutandis to such \vritten statement as if it were a plaint. " The main quarrel between the parties seems to centre on the manner and format in which it has been presented. Usually, once a defendant has given all that is felt to be pa11 of the defence ifhe feels he has a counter-claim he ,.vould, in the same written statement of Defence, include \vhat he would rntitlc." Counter-claim" and then proceed to narrate his claims as a plaintiff does in a plaint. 1 ha,·e carefully asked mysdfthc effect of the omission as is the case here. I have carefully scanned O.Ylll. Ruic 9( I) CPC quoted above but I could not get from where the formalism referred to was plucked. The underlying words in there are . .. .... the defendant may in his ll'rillen statement of Di:/cnce state parlicu!ars of the claim mudt! or rcdii:(or remelz,· sough! hy him ...

·, These words do not prescribe any particular format. It suffices if a defendant includes in the written statement of defence what is clearly a counter-claim. I appreciate that the formality as is generally employed is well founded for clarity and easy extraction of what is counter-claimed. This however, has evolved out of practice, and in my view failure to abide by the same does not make the counter-claim void or the document in which it is contained defective. It is a desirable practice but failure to comply with the same does not attract any consequences let alone those orchestrated by the Plaintiffs' Counsel in their submission. The para. as presented is a counter-claim in line with what is prescribed in 0. VIII, Rule 9 CPC. As regards non-payment of adequate fees, \vhile we have no evidence to counter the Defendants' arguments that the court clerk who computed what was paid took into consideration the element of the counter-claim, the effect, if it is found out not to be the case, is not to reject the whole document but to order for top up fee. In conclusion, all the preliminary objections launched by the respective parties stand dismissed saYe that the Registrar, commercial Court is ordered to revist the computation of the fee paid for the filing of the written statement of Defence to ascertain whether the fee of shs 100,000/= paid took into consideration the counter-claim raised. If the answer is in the negative the Defendants to pay top-up fee. The Registrar, Commercial Court to certify to this Court his finding on the matter. Finally, \Ve turn to the application for security for costs. In support of the application, the Defendants' counsel argue that the plaintiff who resides in Portgal, with no immovable property in Tanzania. ,vhose agent's contact address is unknown for he gives two different mailing ;-iddrcsscs (Hox 11454 and Box 527) may not be able to meet their costs in the cYent they succeed. They go further to argue that they ha,·e already incurred a lot or expenses on the matter: th:ll ::ilthough they admitted a substantial part of the claim there is a lot of preparation still required especially regarding proof of the shares given to 5 th and 6 th Defendants and thcit the subject matter in'Ol'ed is a company's fishing vessel in the name of I3ANUSSO worth US dollars One tvlillion but stranded in the harbour (due tn this suit) for bck of proper and authorised :v1anagemcnt. They cited Colgate Palmo Live Company vs Zakaria

11 Provision Stores & 3 others (DSM, HC, Registry), Civil Case No.l of 1997 (Mapigano, J) in support thereof. In response, the Plaintiffs' Counsel countered by insisting that as Defendants' have substantially admitted the claims there is not much in terms of triable issues requiring research; that the counter-claim is irrelevant as it was launched by the Defendants; that the shares being contested have a nominal value of Tshs 465,000,000/= \vhich cannot anract Tshs 600,000,000/== as security for costs while the value of the fishing vessel is irrelevant as it is not the subject of the suit. They insisted that even if the order was to be made ( collating with the Colgate case cited) the amount should not exceed shs.500,000/= for, in the Colgate case only 4% (shs.100 Million) of the claimed sum (Tshs 2.5 billion) was ordered. Apart from relying on the Colgate case cited as well by Defendants, the plaintiff referred to Sarkar's Law of Civil Procedure, 8 th Edition regarding the guiding principles in considering and determining an application for security of costs. I should start by saying that the application is made not without the support of the Law. O.XXV (I) of the CPC provides; " 1. - (I) Vhere, at any stage of a suir, it appears 10 1he court that a sole plaintiff is. or (when there are more plaintiffs 1han one) that all the plaintiffs are residing out of Tanzania, and that such plaint(ff does not, or that no one rfs11ch plaintiffs does, possess any sz~fficient immovable property within Tanzania other than the property in suit. the court may, either of its own motion or on the application of any defendant. order the plaintiflor plaint[/ls, within a time fixed by it, to give security j(Jr !he paymenl of all cosr.,· incurred and likely to he incurred by any defendant. " The general legal principles arc that the power of the Court to issue an order fnr security for costs is discretionary: aims at protecting the defendant in the e, ent nr success at the end of trial where the circumstances shov,· that the plaintiff by virtue of being outside the court's jurisdiction and not ha\·ing any property around may not he able to meet costs awarded. The discretion should be exercised not to stifle any genuine claim by setting conditions which may not enable an impecunious person from pursuing his rights in the courts of La,,. The court should carefully carry out a balancing exercise m relating the aforementioned need on one hand and the

. .. 12 Defendant's protection on the other, to. afford him recover from plaintiff costs genuinely incurred during the pursuit of the action commenced by the Plaintiff. The court may· not also be blamed for exceeding the limits when scanning all the ~~ ~ circumstances surrounding the case if, though,. deepening in merits it considers prospects of success of the action filed. Armed with these principles the court would then deep into facts of a particular case and exercise its discretion. Now, turning to the issue at hand, the Plaintiff resides in Portgal. As to whether or not he has immovable property the Defendants' assertion that he does not was not challenged. In terms of 0.XXV, (l) CPC, in order to ensure that the Defendants should have a guarantee of recovering their costs an order for security for costs should inevitably be made. I have so concluded after balancing the interest of both parties. The Plaintiffs' Counsel have gone to the extent of suggesting the figure that should be paid. Impliedly, they concede that an order for a reasonable security for costs would not stifle the plaintiffs claim. 1 am not saying that he is a man of substantial means, for, I have no evidence to that effect but surely he is not impecunious, of no means, otherwise his counsel would have hastened to point that out and would not have come up with a proposition of a sum figure in the alternative. At the sametime however I go with plaintiffs counsel's insistence that the presence of BANUSSO Fishing Vessel is irrelevant as it is not subject of the suit. I am also in full agreement with them that the presence of a counter-claim does not add a positive mark to the application before us because a counter-claim is as good as a plaint and the plaintiff can't be called upon to secure costs in a case where he is a Defendant. As regards the Colgate case relied upon by both Counsel l can only say th::it the facts prevailing in that case \Vere diffr-rcnt from the present ones. I appreciate the factors considered therein - --Jong trial ... --several. difficult substantive issues to be dealt with"'; entailment of ··a lot of preparation on the pc1rt of the Defendants" and ··enormous .. claimed compensatory damages. but here we have a case in \vhich the Defendants have admitted the claims and in which. if it weren "t for the existence of a counter-claim that would ha,·c been the end of the cor1tro,·ersy hence there are no elements of long trial. nor difficult issues 9-flo.11_g preparation. -•·• I ·---. • / .,-. :•. l ./ ··. ~ /·<··· :1·· / '.· ,.._ /·'\ - \ /~.:..: . ,,.__ ·-.-'S, . \ j .::: /.. . ·:✓ ;.i ' , p •,f I , -- . . . ,;:.) I ~ \ < -:.. • f • "f /,i .:,,, . i ~~

. . . 13 This bring us to the final point: how much should be ordered as security for costs? The Defendants didn't bother to tell us how much so far they have incurred and what is likely to be incurred. I must concede that in a system like ours where there are no particular guidelines in fixing advocate's fees except percentage-wise pegged on the sum claimed, which, apart from differing from counsel to counsel, vacillates even within the same firm, it may be difficult for the Counsel to be definite on such issue. However, the one -vho effects the application surely must be in a position to guide the court. Global estimates of this nature as is done in general damages matters should be discouraged if the courts are expected to give reasoned sequence as to how they arrive at a particular figure. An applicant for security for costs in the submissions in support thereof should synchronize the costs so far incurred, those likely to be incurred with the sum claimed so as to afford the Court sufficient material upon which to exercise its discretion. In this very wanting situation, left to grapple in the dark, let me use the little material that is at hand in relation to the circumstances of the case. The sum ofTshs 600,000,000/:= is unsupported kt alone the clear fact that it can't be reasonable on the facts of this case. Having carefully considered the circumstances of this case I am persuaded that an order for security for costs in the sum ofTshs T\vo Million will fit the situation. It is so ordered. L.B.Kalegeya, Judge Delivered on 26/9/2000 Judge. 26/9/2000 I f'<'it\ t .t t'1·s :s:: t7n· ;in o• •ct of tn or, n:.1. , .C" •"-l.:,· .-11, ... "= -••· .. ·•··••::.::..'-c"~·--·· ····•• ---· · .. , -·-··- ru I ·- .. .. :. . : ... :.:..:_ · .. ..::.. ~