The decision was reached at the turn of the week in Dar es Salaam by Judge Agathon Nchimbi who stayed the case (temporarily stop the judicial proceedings) on grounds that the case in question- no. 105/2014 -is sub-judice, that is the same case is already under review by another judge or court.
This argument was part of the objections advanced by defence advocate Melchisedeck Lutema who said a case, number 45/2014 involving similar facts and reliefs is before the High Court’s Main Registry.
“It is my finding that the issues involved in the two cases are substantially and directly the same,” the judge said.“I have considered my findings that commercial case number 105 of 2014 must be ordered stayed, pending determination of case number 45/2014,” Judge Nchimbi ruled.
The judge noted that in the Commercial Case Number 105/2014 filed on August 28, 2014, the plaintiffs have pleaded claims of misrepresentation and forgery in the Share Sale Agreement, dated September 9, 2011 and the consequential transfer of the shares in IPTL to Piper Link later to PAP illegally.
Furthermore, he observed that the plaintiffs in the case seek for declaration that the deletion of the name Mechmar Corporation (Malaysia) Berhad from the register of members as a 70 per cent shareholder and the entry of Harbinder Singh and PAP was unlawful and irregular.
“They are also, among other things, praying for an order directing the Registrar of Companies to rectify the entries in the register of members of PAP by deleting such name and substituting thereof the name of Mechmar Corporation (Malaysia) Berhad,” he went on to note.
He also pointed out that the defendants have raised a counterclaim in the Civil Case No. 45/2014 that was lodged before the High Court’s Main Registry in Dar es Salaam on March 14,2014, the reliefs sought included a declaration that the Plaintiff is not a shareholder in IPTL.
The defendants also sought for injunction restraining the plaintiff, joint liquidators, their principals, agents, cronies and all other persons from masquerading as shareholders in IPTL or in any other manner interfering with the quiet and uninterrupted management of the company’s affairs and assets.
The judge held, therefore, that in both cases, the issues of the legality of the sale of the Mechmar’s shares and the complaint relating to fraud and misrepresentation have been canvassed in the pleadings of civil case number 45/2014.
“I do not see how the decision in civil case number 45/2014 may be divorced from that of the one in commercial case number 105/2014. The court stands at a risk of recording of conflicting findings on the issue,” the judge said.
According to him, considering the counter claim by the defendants, the resolution of the issue of the 70 per cent shares, the central issue in both cases, would have the effect of finally and conclusively determining the dispute.
“It is not in the interest of fair trial and ends of justice that this court should allow simultaneous or parallel trials of the two suits by two competent courts as this will ultimately defeat the object of Section 8 of the Civil Procedure Code,” the judge ruled.
SOURCE: THE GUARDIAN
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