21 April 2014

Tanzania: Tanzanite Mining Brothers Resume Appeal Against Payment of Sh2.3 Billion

TWO tanzanite mineral dealers, Antony Ngoo and Davis Antony Ngoo, have gone back to the Court of Appeal, praying for orders for stay of execution of a decree requiring them to pay their partner, Kitinda Kimaro, over 2.3bn/-.

Apart from opposing the payment, the two applicants are also against the decision given by Judge Kakukulo Sambo at the High Court in Arusha on October 12, last year, for the dissolution of their partnership and subsequent dispal of the mining plot situated in Mererani area in Manyara Region.

The duo is seeking stay of execution of the decree for payment of 2,288,000,000/- on grounds that if the mining plot is sold, their appeal would be rendered nugatory and they would suffer not only substantially but irreparably if the decree is executed before determination of the appeal.

"The monetary award to the respondent (Kimaro) involves colossal sums of money which means that if the decree is executed, the applicants (Ngoo) would not only suffer financial loss but also psychological and emotional stress," one of the advocates for the applicants, Michael Ngalo, stated.

According to the advocate, who is assisted by Akonaay Sikay Muhale O'hhay-Sang'ka, the applicants' appeal has overwhelming chances of success, considering the grounds set forth in the memorandum of appeal.

They stated further that their clients were ready to furnish security that the court may order or provide guarantee for due performance of the decree in the event the appeal is unsuccessful.

In his affidavit to support the application, Antony Ngoo stated that the mining plot being subjected to disposal was jointly owned by Antony Ngoo and Kitinda Kimaro. But following a dispute between them, the matter was taken to court and ruled in favour of the latter.

The High Court judge ordered Kimaro to be paid 400m/-, being his share for the amount of minerals produced. The judge also ordered that he be paid 100m/- as general damages.

The 400m/-, according to the order, would attract some interest. In his judgment, the trial judge also directed that the partnership should be dissolved and the suit mining plot be disposed of by way of sale and the proceeds be divided equally among the partners.

This is the second time the applicants are seeking similar orders in the matter. In December, last year, Justices Nathalia Kimaro, Salum Massati and Batuel Mmila ruled against the applicants for inability to show that they would suffer substantial loss and had not furnished security nor given a guarantee for security.

In his submission to support the previous application, advocate Akonaay Sikay Muhale O'hhay-Sang'ka, for the applicants, had told the court that losing the mining plot would occasion a loss to both the applicants and the respondent if the order of dissolution of the partnership was executed.

However, advocate Mpaya Kamara, for the respondent, had countered that the order for dissolution of the partnership was well stated in the judgment of the High Court. According to him, the High Court took into account the worsening working relationship between the partners.

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