Wananchi Marine Products (T) Limited vs Tanzania Fisheries Corporation and Others (Civil Case No. 117 of 1995) [1999] TZHC 139 (27 August 1999)

. ;'l'~ .;, .. , 1· ... :·. IN THE HIGH COlTHT OF TANZANIA DAR ES .3Ai~.!;,i"' DIS'l'HICT REGISTRY AT Lf; R ES SM,AAtv: ·--------- i;;ANANCHl MJ\RINF. . .PRGDlJCT.S .. (T) Lll-':ITED I VEor•ur, ,:!.,flj :::, ' . . ' PL.I; TNT IFF TANZANIA FISHERIES COHFOHilT 10N 1 ~ PRESIDENTIJ1L PARASTJ1TAL 3EC'I'I0N •• ~ · ••• ,. DEFENDANTS REFO?tl"½ C01v1i:JS:ION R U L I N G J BUBESHI J: ----,:.,.,,_ On 21/5/99 1 this ccurt ordered counsel to file their arguments on the pre1i;-;;inary- pc.ints of objection raised by the 2nd Defendant - the Presidential Parastatal Sector Reform Commission, hereinafter the PSRC. Counsel for PSRC was to file his en or befc:,r-e 10/6/99, repy by counsel for the _ l\ plaintiff to file his by 24/6/99, rejoinder if any, to be ... ·:(~);f·:{iled liy 2/7 /99. Mr. JV;auggc lea:r,.., 0 ,·l ccunse] :.tj pe ,--j·.~g fur ·---->_~£$RC duly filed his submissi0-~ a/-1de;:''='.::l on 10/6/9. ·t-·: ... ·-:-·ri.. · · • .r . .... ·,,,ijt,f;·JP. Maarnry for the pJ.a.intiff has- not d,-·ne sc torlate. -.:;_., •:,'.: .. . . -· ,[./$- ' T.b.e objections were th:tee fcld; fcrst;r-'"that the su::.: w3s ·· fj.lec~ :.;.:i tb'..Jut le::i.ve ;;f this_. cc.-urt; sec::md that the suit . -✓ is mis::..cnceived and bad in la_w; .-t"afid thirdly that the suit is ,, ,'---' bad :i:n, . .J§l'' N'lfor Jpck ci' 1ffeC-:t--f;si:t1g cause of ac:eicn. . .--:. -;--~~~<r( \r:.~~~~-; •:!~~_;..:;-~~,.:·:t). ;• =~ ~ .. - ; . . ~ To substarftiate his arguments 1r. Maugo subraitted that, the 1st defendant TAFICO, was plac,-::. under PSRC vide GN 322/1996 8.nd by virtu~ of_ Se_tLn 43 of Public Corpora tic~' Aqt, 1992; as ar.1ended by Act No.-16 ·of ·1993. PSRC was empt,ered to 8.Ct as e,fficial rec,eiver of all specified publi• corporaticns 1 including the 1st Defendant. And.further that the P.SRC had all rights ai1d powers cf an official receiver appointed·und.e the Bankruptay Ordinance, Cap.2-?• · And tha\ by virtue of secticn 9 (1) - of the Originnce 1'st Defendant cannct be sued without leave of court-. Secti,)n 9(1) reads·:-_ On the making of a receiyer-order the cfficia~ receiver sha+l be thereby ccnstituted receiver 6f the prcperty cf the debtor, anc1 thereafter, f. , : except as directed by this ?rdinance, '~ ~/2

2 no cred.i tor tu wlwm the debtor is indepted in respect of any dbt proY'able in Benkrup'tay slial1 have any remedy .against the propery o~ person cf the debtor in respec ➔~ cf th2 ,ebt, o:r 211::J.l cor.mence any acticn or bther legal nroceedings unJ.ess with leave of the court and on such terms as the ccurt rna_y imp:ose 11 ~ Mr. Mauggo has submitted. that· in ti:?:trr:s c.E the provisicr.'-; cited above, the plaintiff's clain: for a sum of US J.ollars 329,432.05 being provab1 e in bankrup-:ay,i leave of court was necessary before 'filing of the suit. Counsel Mauggo referred the cou1"'t to the case of .SAID MNIVi.BO and OTHERS VS STATE TRAVEL SERVICES LTD and TOURI3f( SERVICES (T) and ANr·THER High Cf:,urt Civil Case Ne. 296/97., The second cbjecticn raied was that the suit is misc once hred and bad in law. Mr. Na 1 l[!;rs-:; sub!lii t :prl thR t the pJ.aintiff is prayine, inter alia, for !3.n cru·r .11' specific perorr:1an(..;e ag3inst the l.3t Dei'e::·nd·3nt 1 tu ccjmJJly with Act 22 ,1 cf the agreernel1t tc- review the charter agreement. And secondly the, t the 2nd deferidant be re::.·::'"-:: ;:,1ed by an .ordE::r cf permanent inju.ncti-:n Jrom invitin-=; investors to purchase assets of 1st Defendant until final d2terminati,.)n cf this suit, Er .• I'iauggo stated that as the. 2nd IJefendant has been reste'l with powers of 1 restructuring public corpcraticns :·_ -_ tfuis ccuntry,. and also negotiate with investors for the pt,;,, ch:3-s:e, lease., rn;:magement or control of: shares/assets of the speificd public corporation, the prayers. scucht by the plaintiff cannot be gr granted; as it is contr3.ry to the spirit of the Public Gorporatic)n Act, 1992 as amended •. The third obj.ecticn ·ra i.sed. is thff,t there is no cause of action against the ct:@fendant-s in that as the 2nd defendant 1st defendant, all the assets and exis:t-fng liabilities now rest with the 2nq. Defendant.. Thus an order -fo!' spec_if ic . performance cannot be ma:de against the l:s:t Defen1ant, stated Mr., ··Mauggc-_., He _furthe:.c argued that as. the 2nd ,Pef_e~nt T' t

• 3 is an statutory bcdy wjth powers under the Act deal with the lt defe·nd.ant in terms c·f -Sec.tiCJt! 39 (1) of the Act, the plaintiff ca:rmot dc;p:_,; .1d ,_m the che.rter ,:Jgreement that was enterC?cl into br<::·,--::-2 the 1st Defendant. ws specified anc. which agreement does not st:8 ce if the Vessels 'Jill be aliE::nated infavour of the pl:=.iintiff. Mr. Ma'.lggc fer the defendants has raised some valid points« This ccurt is pr:rsu::1.ded by .. J·~i.Ei subm.i.ssj nr1s mac12 and in absence cf ccunter argurr:ents by -~i1e pla iritif.:f, , . ' I am inc1ined 'tc uphold the objecti:;ns raised and dismiss the suit with costs,. Delivered before Mauggo fer the Defendants and in absence of the Plaintiff. A .. Go BUBESHI fll.l?iill. 27/8/99