10 May 2014

Tanzania: Dar Businessman Appeals in Landmark Gas Case

THE landmark oil and gas blocks case, that will set a precedent in the two energy sectors in Tanzania, has taken a new twist following a move by businessman Moto Mabanga accusing a British judge of being biased in the matter.

English Justice, Andrew Popplewell, who first heard the matter before the High Court of Justice, Queen's Bench Division, Commercial Court in London, before being filed in the Tanzanian High Court, gave judgment and the case was not conclusively determined by hearing the parties.

Mr Mabanga has filed an application at the High Court's Commercial Division in Dar es Salaam, alleging that Justice Popplewell favoured the defendants in the matter represented by a counsel, who was a partner in a law firm, Brick Court Chambers.

Before the English Court, Mr Mabanga, who lost the case, applied for disclosure of documentation which Ophir Energy PLC and Ophir Services PTY Limited concluded the farm-in transaction with British Gas Tanzania, in relation to his five per cent interests in each oil block namely: One, Three and Four.

Through his seasoned advocates Jethro Turyamwesiga and Mabere Marando, the businessman, a Tanzanian living in South Africa, filed the case before the Tanzanian Court as he was prohibited by the said English Justice to appeal against the judgment.

He alleges that the judgment of the British Court was obtained through proceedings that opposed natural justice, as the trial judge was biased in favour of the defendants.

"Seven days prior to the hearing of the case, the trial judge (Andrew Popplewell ) had been in the same chambers, namely Brick Court Chambers, together with advocate for the defendants, namely Mr Mark Howard, whereas the trial judge had not declared that relationship to the plaintiff," he claims.

According to the application filed during the course of the said hearing before the English Court, the trial judge had turned himself into a witness by giving such interpretation to documents such as only a witness could or should do.

Mr Mabanga claims that the judgment was not conclusive between the parties for the reasons that the suit was not heard or finally determined according to procedures recognised and acceptable to the laws of Tanzania where the assets are located.

He, therefore, requests the court to issue an order to the effect that the English Court judgment should be struck out in the pleadings of his case he filed before Tanzania's commercial court, which constitute in the preliminary objection lodged by the defendants in the matter.

In his affidavit to support the application in question, Mr Mabanga states that he was a claimant in the case before the English Court presided over by Justice Andrew Popplewell and during the hearing no witnesses were called and only advocates were heard.

He stated that in that case the witnesses filed their statements, but were never called upon to testify under oath, thus there was no valid trial of the case. He claims that Justice Popplewell turned himself into a witness instead of remaining exclusively in his capacity as judge in the proceedings.

Mr Mabanga alleges that during the course of trial, the court had considered, analysed, interpreted and construed documents which were never admitted as evidence under oath and after making a search of what happened, he discovered the trial judge was a partner in the law firm with counsel for defendants.

He learnt that Justice Andrew Popplewell was appointed to the bench effective October 3, 2011. Prior to the appointment he was senior member in the Brick Court Chambers, Barrister of which Mr Howard was working, but surprisingly appeared for defendants in the case.

"The relationship between the Judge and counsel for the defendants demonstrate that a relationship that is diametrically opposed to the independence which should be present as between judge and counsel. Justice Popplewell did not disclose (such relationship)," he claims.

According to Mr Mabanga, the said trial judge had previously been subjected to criticism in Britain for such comparable conduct. He concluded, therefore, that there could be no doubt that the judge should have disqualified himself from the conduct of the case.

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