Posted on October, 10, 2016 at 11:19 am
LOCAL investment firm, VIP Engineering and Marketing Limited (VIP), has asked the High Court’s Commercial Division to dismiss with costs all grounds of preliminary objections lodged by two SGS companies, opposing deposit into court of over 345bn/- for due performance of a decree. In an application pending before the court, VIP is seeking orders requiring Societe Generale De Surveillance (S.A) and SGS (Tanzania) Superintendent Limited to deposit the money into bank account operated by the Court’s Registrar at the Bank of Tanzania (BoT), pending determination of an appeal.
The filing of the application by VIP comes after the court, under Successor Judge Jacob Mwambegele delivered the judgment on behalf of trial Judge Nathalia Kimaro, now a Justice in the Court of Appeal, holding that VIP proved its case against the two foreign companies on the balance of probabilities.
The matter concerns a suit filed by VIP with regard to imported sub-standard rice, which the two SGS firms had allegedly certified as fit for consumption while “knowing that it was not’’.
The local company further seeks for declaration that if the SGS firms fail to deposit the money, it would amount to exceptional circumstances and disobedience and should be held in contempt of lawful court orders. Such failure, according to the application, places a duty on the court to exercise its powers to order state organs and other responsible persons to hunt for and/or to disclose their assets.
“We feel compelled to submit at the risk of repeating ourselves that (VIP) is a decree holder in Commercial Case No. 16 of 2000 and the main prayer in the application is for the respondents to deposit the decretal sum in the account of the Registrar of this court,” VIP Advocate Respicius Didace submitted.
He added: “We have already submitted that this kind of prayer is well within the ambit of Order XXI Rule-1- (1)(a) of the CPC Cap 33, which provides that all money payable under a decree shall be paid into the court whose duty it is to execute the decree.” However, two companies have advanced several grounds of objections, also seeking dismissal of the application in question.
They allege that the court lacked jurisdiction to entertain the matter, the affidavit in support of the application is incurably defective and there is wrong citation of applicable. Advocate Didace states in written submissions filed in court last Wednesday (October 5) that “all arguments and authorities raised by SGS are a continuation of abuse of the court process’’.
The advocate told Judge Haruna Songoro that such arguments were putting the integrity and authority of the court to test as SGS have managed to manipulate the due process so far, which should not be allowed to continue.
He pointed out that to entertain the preliminary objections raised by the respondents, the court has to be satisfied that each of them individually meets the required criteria, including whether each raises a pure point of law and does not call for the exercise of judicial discretionary powers of the court.
The objection, according to him, is based upon pleaded undisputed facts or undisputable facts that arise by clear implication from the pleadings -- and that it could not be determined without calling evidence, including without resorting to analysing or evaluating affidavit evidence.
“VIP submits that failure to satisfy any one of the tests is enough to dismiss the preliminary objections without the court having to enquire into the rest of the tests. Each of the grounds in the SGS notice of preliminary objections fails to pass one or more of the above listed tests,” the advocates submitted.
Advocate Didace further told the court that the conduct of the SGS has since 2006 amounted to illegally staying execution of the judgment entered in its favour by the trial judge by the SGS, blocking judgment from being pronounced by the successor judge.
“Now that the court has finally pronounced judgment and issued the requisite decree to VIP, this court has to exercise its inherent jurisdiction to make the orders requested by VIP to prevent SGS from continued abuse of the court process,” he submitted.
The judge ruled that SGS (S.A) had a duty under the contract relating to supply of several tones of rice imported from abroad to take all reasonable precautions, due care and reasonable alternative measures all with objective of carrying out the terms and conditions on the importation by VIP of the rice in 1998.
He said that there was evidence adduced by VIP International Consultant, Mr James Rugemalira – to the effect that the plaintiff paid for pre-shipment inspection fees as per contract but the defendants knowing that no inspection was carried out at all, issued a clear report of finding to signify that the goods imported matched required specification.
The judge noted that while the contract had a provision for destination inspection in circumstances where pre-shipment was not done, the defendants refused to carry out inspection as requested by VIP although they were aware that the ship carried rice which had not met the specifications.
Source: Daily News