Judegment Day At The High Court London

Judegment Day At The High Court London
Mengi v Hermitage: Libel Claim Successfully Defended

Wednesday, 2 September 2009



With the Bank of Tanzania scandal breaking last month and the well published issues of corruption in the police force and judiciary, potential investors in the country should exercise extreme caution when relying on the country’s constant trumpeting of good governance which is looking increasing like nothing more than rhetoric for the benefit of donor communities. It appears that no administrative mechanism is free from deep-seated unaddressed corruption in the country.

Dar es Salaam advocates A.L. Nguma & Co and Moshi advocates Westgate Lumambo, G.P. Sandi, Professor Msunga and Peter Jonathan are bringing their profession and country into disrepute by deliberately abusing the law to assist the unlawful attempts of Benjamin Mengi to re-gain the lease to Silverdale & Mbono Farms in the Hai District of the Kilimanjaro region, from British Investors Stewart Middleton and Sarah Hermitage.

Having failed to secure the removal of the investors from Tanzania with the abuse of the criminal law, Benjamin Mengi has now turned to the abuse of the civil courts to achieve his goals. Mengi has brought ten vexatious plaints against the investors on baseless grounds, in order to destroy the investor’s commercial interest and the livelihoods of the Tanzanian workforce employed on Silverdale & Mbono Farms.

Advocates A.L. Nguma and Co. 7th Floor, Haidary Plaza Building, Upanga Rd./Kisutu St., P.O. Box 163, Dar es Salaam (described by Mengi as his family’s lawyers), have issued defamation proceedings against Stewart Middleton, Sarah Hermitage and Tanzanian Deodat Mtenga claiming a total of $3,000,000. The claim is based in the main on statements made in documents filed in the course of legal proceedings. Such documents are subject to what is know as the doctrine of ‘absolute privileged’, which means that they cannot be used as evidence in such proceedings. The issuing of the plaint therefore is a clear abuse of due process of law. Nguma & Co know, that such evidence cannot be heard by the court and as such, the their drafting of the plaint, is vexatious and an unlawful attempt to harass the investors and their staff. The first duty of an advocate is to the Court. A.L. Nguma and Co have clearly failed in that duty.

Moshi Advocate Westgate Lumambo, having agreed a price of some TSH3, 000,000 to represent Mr. Middleton in four of the plaints, reneged on the agreement and then demanded TSH40, 000,000. When Mr. Middleton refused to pay the increased sum, Lumambo threatened Mr. Middleton stating, that he would keep the case files and refuse to hand them over to another lawyer. He further threatened Mr. Middleton, that he had a brother who was working in President Kikwete’s office and that he would damage the investors interests if he did not hand over the money. Lumambo also handed to Mengi, documents belonging to Mr. Middleton.

Mr. Middleton discovered, that Lumambo had failed to file proper defences (and supporting documents) in many of the cases, which had led in one case, to a judgment given against the investor in favour of Mengi for a sum of TSH90,000,000. This judgement is now awaiting appeal. Lumambo stated that he had not been paid. However, he was on the court file as acting for the investor at all times in all of the cases.

Moshi advocate G.P. Sandi is acting for Mengi for a second time, in a High Court application to have the investors evicted from Silverdale & Mbono Farms on the basis again, that Mengi has not been paid the full assignment fee. This despite, having seen a signed a receipt to the contrary. In 2005, Sandi, drafted a plaint for eviction where he stated that the value of the claim was TSH50,000,000. This was in order to bring the claim within the jurisdiction of the District Land & Housing Tribunal. Further in the claim however, Sandi described that the claim was for a breach of contract for a lease to the value of $US.112,000.000. The claim was therefore drafted in clear abuse of the law. Hon Kileo quashed this claim, in March 2005 where Sandi was chastised (obiter) for his conduct.

Moshi Advocate Msunga, acted for the Kyeri, Shari and Uswa Mamba Co-operative Societies when Mengi assigned the lease to the farms in May 2004. After the assignment, Msunga stated to the Co-operative Societies, that they should ignore the terms of the assignment contract and that the definition of a legal assignment was that Mengi had assigned to Mr. Middleton certain tasks on the farms. In effect, what Msunga stated to the Co-operatives was that Middleton had paid Mengi $112,000 for the pleasure of working for him. This was overt corruption on Msunga’ s part.

Moshi Advocate Peter Jonathan, having acted for Mr. Middleton on the assignment having drawn up the assignment Deed and witnessed the full payment of funds to Mengi, now acts for Mengi on the basis that he has not been fully paid.

There can be nothing more shameful, than a lawyer who goes against his or her oath of office by failing to protect the sanctity of the client lawyer relationship of privilege. The damage that such conduct is doing to Tanzania’s reputation worldwide as a safe place for investors of course, cementing more serious and far-reaching consequences.

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