Bent Dyhberg vs Tanzania Saruji Corporation (Civil Case No. 248 of 1997) [1999] TZHC 155 (20 April 1999)

" ., / i , IN THE HIGH COURT OF TANZAN'IA AT DAR ES SALf.tJ\M CIVIL CASE NO. 248 ·OF 1997 BENT DYHBERG • o ...... o .. • • • • • • • ••• •• ...... PLAINTIFF VERSUS TAN?ANLA. SA:RU,JI :JORPORATION • • •. • • 00 .DEFENDANT

RULING

"The pleadings show that the litigants together with a third· party entred into an agreement to establish a joint enture. Then- ed,eavours gave birth to the formation fa limited liability company known as Wazo Engineering Ltd. The plaintiff was to partic.ipate in the venture as an investor, among other roles.. In the joint venture the plaintiff owns 29,101 shares •. As a foreign investor he needs a residence permit ·class 0 .tl.:' 1 • He avers that he has failed to secure·the residece permit because the defendant who has the information that is required by the lrlmiition Dep:u-tment w01.ild not release it. Stt of the e:tght reliefs he seeks from the court, he prays as follows in rele.tion ·co the first two reliefs:- compelling ( a) An order of tha ~~lE't share certificats; ar.d · t1"' defendant to issue (b) an order compll:i.ng the defendant to release to the Immigration Department information regarding the plaintiff's investment in Wa:z,.::; Engineering U;c. ,;. The defendant has rais0d objections regarding the above prayers, cntnding that under the doctrine enunciated in tha English ca ■ e of ~ map- v. Salmon and Co. Ltd (18 1 ?) AC 22i' th~ pli:;.intiff ha~ no eause •~ ,action against the defendant. And tr.-J application was argued by way ef written :. submissions. In this ca::.;€: M,:so lvii.:.lebya and Mr. Mwakasurigula., learned counsel, represent the plaintiff and the defendant, r&$pe•tively. Mr. Mwakasungula contends that Wazo Engbeering Ltd was jointly establi:.;:2 by the plaintiff who w.':J.s alloted 29,lOf. sharesi the defendant wae alated . , ·- ., 22 1 413 shares and ·. Mr., ;,;:.irn Johru:!•n, who was representing er.iplsyee• tf' Saruji Corpor:ition to whom 8736 shre \fere_ :aJ.lotedo It is submitted further that according to the memorndum and articles of association of that company the above people were appointed the first" dire·cr°' tf· Wl1Ze Engineering Ltd. Since, therefore, the company is at ·1aw a dilterent person altogether from the subscriberG to the memorandum, and though it .may be that after .incorporation the business is precisely the same as it was before 1

• 2 and th.e same persons are· rs and the same hands re.ee.i¥e the _prof'its,. the company is not in law the agent of the subscr.ibers or t rustee for them., By reason of the foN,going learned defenC'e counsel prays that the 8uit be dimissed as the plaintiff has no cause of action against the plaintiff. Mrs Mulebya niaintain.s that the plaintiff has a cause of action against the defendant. For according to documents that are ann~ tures to the plaint the defendant is the institution that invited the plaintiff to come here to participate the joint venture that gave birth to ivazo Engineerbg Ltd_. After all, Wazo Engineering has not taken off so fall due to the conflict between the litigants. Even though, therefore, the def9ndnnt is one of the shareholders it is nonetheless the key player in the formation , of Wazo Engineering Ltd, so that it is incumbent upon it (the defendant) to have performed theirduty to enable the plaintiff to participate fully in the running of that infant company. There is no controuarsy, either in tae pleadings or in the subnissions ef learned counsel, regarding the plaintiff's investment in this country. Of course it is trne that 11.0 one will invest in a fereign country wMre he will not be assured. '.:. ::. a,ciuire · residence te> enable him to manage his investment. The need of :.n .. ppr"priate reidence permitfor the :plaintiff is therefore, a matter ·1,:a.- :• incidental to h.,:' investment. Indeed it has not been disputed that :h,:, i:.efendant invited the plaintiff to come this way to invest the way he ha:-=- undisputably d· ·:e Whoever invited him has a duty to provide the n·eccs':i:y informatior. to Go-irernment institutions whose duty it is to hear and determine applictions forresidence permits, To that extent the plaintitf __ has a. __ ca.~~-e ':! ... ?_t_ion. --gainst the defendant •. Now does the plaintiff have a cause of act:·.0:1 a 6 airist the defendan.t in::respect of the issuance of sh·:•e :er+.:i f.·.ca:1::,'-',:- Sfoce waza Engineering Ltd isa legal person in its own right 9 no one can is3ue itsshare certificatesr anJ.Y its directors or some ether person or officer duly authorised in that behalfcan issue the share certif.icates. Accordfog to articles 6 and f of the Artides of Association -~: 0 W<1.zo Engineering Ltd:- • ....... 26. The sha:;:- .. ,; shall be under control of the Dir.ys who may allot or otherwise dispose of the same to such persons.onsuch termsand conditions and such times as theDirectors think fit.

3 7~ · The certificate of Title to shares shallbe issued under the seal cfthe Company and shall be signed by two Directors.:, ':..'"'huseven though the defendant may·be a subscriber, alone·.it has no power to issue share certificates in termr, of Article 7 of the Articles of Association. To that'extent the plaintiff cannot be· said to have a cause of action against the defendant in rspect of the issue of share certificates. Upon the reas?ns contained in this ruling the part of the objection relating to the immigration status of the plaintiff fails and it is hereby dismiss0d; the part of the objection relating the issue of· share certificates succeeds. Objection partly allowed and partly dismissed. Costs to be in the Delivered., J., M. Mackanja t.TUDGE 29Nl999 Mrs. Mulebya, Adv. Absent For Plaintiff 'Plaintiff: In person Mr. Mwakasungula, Adv, For Defendant (Absent) I Certificate that thfa is a truo cop:: of -l;h"- Original. ' .... _ •. .,. ,:.: .· /!., .. , ~ ........ . DRo JO Eo RUHA..NGL':,A. DISTRICT REGISTRAR ~9/4/1999 -