Standard Chartered Bank to pay 50bn/- for IPTL’s case

By our Correspondent

THE Independent Power Tanzania Limited (IPTL) and Pan African Power Solutions (T) Limited (PAP) have moved the High Court (Commercial Division) to order Standard Chartered Bank Hong Kong Limited and Standard Chartered Bank Malaysia Berhard to pay about 50bn/-as security for costs.

 

In an application lodged before the Dar es Salaam Court recently, the two local companies are seeking such orders for payments of 22,880,006 US dollars, pending determination of proceedings challenging enforcement a foreign judgment for payments of about 400bn/- in favour of the two banks.

Judge Barke Sahel will hear the application that has been filed under certificate of urgency on October 10^th this year. The application has been supported by seasoned Advocate Joseph Makandege, who is also the Company Secretary and Chief Counsel of IPTL and PAP.

In the affidavit to support the application, Mr. Makandege, currently the Acting Executive Chairman and Managing Director of IPTL and PAP, states that the two banks, who are respondents, are corporate citizens of and domiciled in Hong Kong in the Peoples’ Republic of China and Malaysia, respectively.

“None of them is registered in the country or own any property, let alone an immovable property, or asset or has a known registered establishment in Tanzania, within the local limits of the jurisdiction of this court,” reads part of the affidavit.

He stated that as of to date none of principal officers of the respondent banks has signed or verified any document or pleading, be it in proceedings for enforcement of the impugned judgment or counter affidavits filed in opposition to the applicants proceedings to set aside registration of such judgment.

As a result, the advocate sates, such principal officers could hardly be bound by the pleadings filed, or take charge of the consequences arising there from and critically reflected, the respondents are apparently conducting themselves with a view to eventually evade the consequences.

Mr. Makandege states that the counsel for the respondents who drew and filed the proceedings for enforcement of the impugned judgment has not exhibited to the court or to the applicants any document instructing and authorizing him to institute and act as such for and on their behalf.

 “The countries wherein the respondents are reportedly incorporated and domiciled do not have any reciprocal arrangements with Tanzania for enforcement of decisions of their respective courts, which may guarantee recoverability of the applicants’ costs of litigating the proceedings,” he states.

 According to him, the monetary value of the claim the respondents seek to recover from the applicants being over 168,800,063.87 US dollars (about 376,424,142,274/-) is colossal, hence costly to litigate and the applicants have not obtained any legal aid or anyhow been exempted from payments of legal fees.

It is stated in the affidavit further that the respondents are habitual forum shoppers who may at any time abandon their proceedings for enforcement of the impugned judgment and the applicants’ proceedings for setting aside registration of the judgment or any appeal that may emanate there from.

Mr. Makandege states that given the matters deposed to in his affidavit cumulatively, the respondents’ impugned foreign judgment sought to be enforced was vitiated by a number of legal and factual considerations, hence more susceptible and vulnerable to being assailed.

“The security sought by the applicants for their costs for litigating the proceedings for setting aside registration of the judgment or an appeal that may emanate there from are statutory and applicable in almost all commonwealth jurisdictions, hence not an impediment to access to justice,” he states.

Even the applicants and VIP Engineering and Marketing Limited, being not British corporate citizens and not domiciled in Britain, were in 2016 ordered by the English Court at the instance of the respondents to deposit security for their costs of litigating the English proceedings.

In their main applications, IPTL, PAP and VIP are requesting the High Court to set aside the Ex-Parte Order given by Judge Sehel on February 9, 2017, registering the foreign judgment given in favour of the two foreign Banks.

Justice Flux of the High Court of Justice of England, Queen’s Bench Division, Commercial Court, had given such judgment after VIP, PAP and IPTL defaulted to submit to the jurisdiction of the London-based English Court.

IPTL, PAP and VIP charge that Judge Sahel surprisingly issued the order registering such judgment in question without summoning them while they are all based within the vicinity of the High Court in Dar es Salaam, which they view as being at odds with the law and practice of the land. 

The Judgment is highly contested on a number of grounds and fronts. The three companies, the applicants in the matter, canvases for a declaration that the foreign judgment registered following ex-parte order given by Judge Sahel, is unregistrable and unenforceable in Tanzania.