On the 16th October 2007, the court of resident magistrate in Moshi (Kilimanjaro Region) ordered, (on the ex parte application of Benjamin Mengi), the seizure of assets belonging to British investors Stewart Middleton and Sarah Hermitage whilst they were on holiday in the U.K. The order demanded seizure by the court of the investor’s property to the value of TSH90, 000,000 ($85,000).
As a matter of law, the court acted ‘ultra viries’ (outside of) its powers on the evidence before it and ordered seizure of property not permitted under the laws of Tanzania. The plaint itself was defective as it did not disclose a cause of action against the investors. The action for Libel lay solely against the Daily News as 'publishers' of the article.
The order surrounds a Libel case brought by Mengi against the investors in 2006 who sued the investors for the following statements published in the Daily News on 2nd June 2006: -
''David Stewart Middleton and his wife Sarah have told the Daily News that their dream to settle in what they were made to believe was 'Investor-friendlyTanzania’ had turned into a nightmare because of routine harassment by policeand abuse of judicial process in cases allegedly manipulated by thebusinessman,'' (Benjamin Mengi)
Dr Ngasongwa ( former Minister of Investment and Empowerment) was quoted as stating:-
''The investors (are) bona fide and had been registered by the Tanzania Investment Center. They have the full support of his ministry.....they are using local organs to harass legal investors. This is opencorruption, which I strongly condemn. It shames us as a nation, which has setout to attract foreign investors''.
(The full article can be read below)
Under the Newspaper Act 1977 and the common law of Libel, only the printer, publisher and writer of any ‘published material’ can be sued. Mengi therefore, had no right at law to sue the investors for Libel, his action should have been against the Daily News.
(Order 7. Rule 11 (a) of the Civil Procedure Code clearly states that, the plaint shall be rejected where it does not disclose a cause of action. This is supported also by Mulla in that, the court not only has the power, but also has an imperative duty to strike out pleadings in inappropriate cases under Order 6, r 16 at any stage and to reject the petition itself under Order 7, r 11 (a) if no cause of action remains. (Mulla V2. Page 1923). Mulla states further, that under Order 7. Rule 11 (a) of the Civil procedure Code, it is mandatory, that the plaint is rejected if it does not disclose a cause of action. (Mulla V2. Page 1924 Para 5). If on a meaningful reading of the Plaint, it is found to be meritless and vexatious in the sense of not disclosing right to sue the court is under a duty to strike out the Plaint of its own accord i.e. suo motu or, on the application of the respondent stating the reasons why. (Mulla V2 Page 1924) either before admitting the plaint (Mulla V2. Page 1924. Para 4) or, if not, at the first hearing. (Mulla V2 Page 1928)).
The Moshi Magistrates court were therefore under a duty to reject the plaint for filing and failing this, magistrate Mkisi was obliged to dismiss Mengi’s claim a first hearing.
Despite representations made to the Public Corruption Bureau and the Chief Justice of Tanzania, magistrate Mkisi heard the plaint in the absence of the investors. The couple's lawyer at the time, Westgate Lumambo from Moshi had failed to file a defence in the case despite informing the investors that he had done so. Under Tanzanian law, if a party fails to file a defence, the court may allow the plaintiff to prove his case ex-parte. Given the case objectively did not disclose a right to sue, it would not have been possible to prove it under this legal provision.
Despite this, Mkisi gave judgment to Mengi and awarded him damages of TSH 90,000,000 ex-parte despite the fact no evidence of proof of those damages was presented to the court. Having appointed a new lawyer, the investors appealed the judgment and applied for a stay of execution pending appeal, which was granted in September 2007. No date was set for the payment into court to be made.
Mr. Middleton left Tanzania for leave on the 8th October 2007. On the 16th October, the Moshi principle magistrate in charge, DuDu granted an ex parte application by Mengi for an attachment order of the investor’s property on the basis that the payment into court had not been made.
DuDu stated that a date for the payment into court was written on the court file and the date had passed; he further stated there was no record on the court file of any pending appeal. This despite the presence of a filing receipt issued to the investor’s new lawyer Dr. Kamara (Dar es Salaam), from the Moshi High Court Registry.
DuDu called for no evidence to confirm the property Mengi was asking the court to seize, belonged to the investors. An order was granted to Mengi for the seizure of the investors cats, dogs, horses, tractors and company produce to be seized together with most moveable property situated on Silverdale & Mbono Farms. The court allowed Mengi to list items indiscriminately paying no reference to whether or not they were listed as permissible items under the Civil Procedure Code of Tanzania.
Since assigning the lease to Silverdale & Mbono Farms to Silverdale Tanzania Ltd the major shareholder of which was Stewart Middleton, Mengi and his wife Millie have brought ten civil cases against the investors together with numerous criminal charges one of which resulted in Mr. Middleton’s wrongful imprisonment. The Director of Public Prosecutions has withdrawn all criminal charges against Mr. Middleton under his statutory legal powers of nulle proseque. The couple have instigated no litigation in Tanzania.
Mengi’s claim to evict the investors from the farms was dismissed by the High Court (Hon Kileo. Case No. 1/2006). The investors however were left to pay $6,000 in costs. No Tanzania court has set aside the assignment of the lease to Silverdale and Mbono Farms from Mengi to the investors.
Commenting on the ‘Silverdale case’ in the Financial Times (U.K.) on 7th November 2007, former British High Commissioner to Tanzania Philip Parham stated:-
“Investor confidence is not helped by cases such as that of Silverdale Farm…’'
Andrew Pocock, the British High Commissioner to Tanzania preceding Philip Parham stated to Mr Adadi Rajabu former Director of Criminal Investigation:-
'I should like to put on record a matter of great seriousness, involving UK citizens and investors in Tanzania. Stewart and Sarah Middleton bought a farm – Silverdale – in Moshi from Mr Benjamin Mengi. They did so entirely legally and transparently. But for the last year, Mr B Mengi has been trying to regain the property. The Middleton's have documented a series of what they consider to be illegal efforts to repossess the property. These have included intimidation, and even death threats to them personally.They have sought police assistance, but the evidence is that the local police do not seem impartial. A very serious incident took place on 21 November, when Mr Middleton was arrested on what appear to be entirely trumped-up grounds. He and a colleague were seized by local policemen, never formally charged or given an indication of the charges, and taken before a magistrate under armed guard. Even when they were before the magistrate, there was no charge sheet, nor did the magistrate make any effort to obtain one.We support the rule of law in Tanzania. Unfortunately, this incident shows a flouting of that rule. I attach a lengthy statement from Mr and Mrs Middleton, which puts the legal case into perspective, and provides a detailed readout of the events surrounding Mr Middleton's arrest. Their conclusion is that the charging process by the police had been skipped altogether. Given all the circumstances, this could amount to a case of false arrest....you will no doubt be concerned, as I am, by what appears to be continuing intimidation of a bona fide investor in Tanzania. Part of this intimidation seems to be coming from the local police force. Mr Middleton is not a criminal. There is no evidence that he has broken Tanzanian law in any way. Yet he is arrested without charge and taken by armed guard before a magistrate. I would welcome the chance to discuss this case further with you. I would be particularly grateful for your help in ensuring that the Moshi police operate within the parameters of Tanzanian law. I am particularly mindful of the efforts of the Government of Tanzania to encourage legitimate investment, and concerned that a British National who is the source of such investment – and of local employment and exports – should be subjected to harassment that does not reflect Tanzania’s traditional hospitality......''
The couple appealed the above judgment in October 2007. The appeal has still not been heard. Philip Parham engaged in extensive dialogue with the Chief Justice of Tanzania voicing concerns that the appeal had not been head. The Chief Justice assured the British envoy in January 2009 that he had directed the Moshi High Court (appeal section) to proceed with the appeal. The Chief Justice had agreed to exercise his powers of Judicial Review of all the cases against the investors in early 2008 but changed his mind in January 2009 giving no reason.
Three weeks after Philip Parham left Tanzania at the end of his term office in early 2009 the Moshi High court summoned the couple's lawyer to court for a mention of the case on 27th February 2009. On appearance, the lawyer was informed that the case had been heard the preceding week and struck out due to the non appearance of the couple's lawyer.
The lawyer immediately filed an application for this order to be 'set aside' and has been told by the Moshi High Court (appeal section) that this application cannot be heard as ' the court file has been lost'.
Daily News. 2nd June 2006
Businessman accused of harassing foreign investor
MOSHI businessman Benjamin Mengi has been accused of using the police and judiciary to terrorise British investors who bought a farm from him in Hai District two years ago. David Stewart Middleton and his wife Sarah have told the 'Daily News' that their dream to settle in what they were made to believe was 'investor-friendly Tanzania', had turned into a nightmare because of routine harassment by police and abuse of judicial process in cases allegedly manipulated by the businessman. The Minister for Planning, Economy and Empowerment, Dr Juma Ngasongwa, confirmed that the investors had appealed to him as well as the ministers for justice and public safety, with whom they were addressing the complaints. Dr Ngasongwa said the investors were bona fide and had been registered by the Tanzania Investment Centre. They have the full support of his ministry, he said. "They are using local organs to harass legal investors. This is open corruption, which I strongly condemn. It shames us as a nation, which has set out to attract foreign investors," said the minister. Mengi could not be reached for comment yesterday. Two mobile telephone numbers made available to the 'Daily News' were not reachable. A spokesperson for Justice Minister Dr Mary Nagu said their response to the complaints would be communicated to the British couple confidentially. Mr Middleton said the latest instant of harassment was the arrest and arraignment for allegedly framed up charges of his manager, Able Ngodja, on Tuesday, whose bail was being delayed under questionable circumstances. According to the complaints to the government by Middleton, Mengi has used influence to have the Regional Land Tribunal to hear his application to evict them from the farm, which is abusive, because the Tribunal has no jurisdiction over matters involving value exceeding 50m/-. Mr Middleton says they bought the lease for the 530-acre Silverdale farm and Mbono Estate from Fiona Limited, a company owned by Mengi, for 112,000 US dollars (about 140m/-), which was paid in two installments in May and November 2004. He said they have invested 400,000 US dollars and employs 120 workers growing vegetables for the local and export markets with plans to grow coffee. In a letter to the Tanzania Investment Centre last December, the former British High Commissioner in the country, Mr Andrew Pocock, complained against the mistreatment of the investor. "Instead of being helped, he has been harassed at every stage. Not only have attempts been made to seize his farm illegally, but those attempts have been assisted by the Moshi police and judiciary," he lamented. Meanwhile, the Hai District Veterinary Office has placed dairy cattle and goats kept by Mengi's wife, Millie, on a portion of the Silverdale estate under quarantine following the break-up of the foot-and-mouth disease last April 6. Mr Middleton, however, complained that the quarantine, which was declared more than a month after occurrence of the disease, was not being enforced. A report by the Officer-in-charge of the Northern Zone Veterinary Investigation Centre in Arusha, Dr E. Swai, said 18 animals had died when they visited the farm mid-last month.Source:dailynews. 2nd June 2006