Mabanga wins, High Court grants his amendment plea

FAUSTINE KAPAMA

HIGH Court’s Commercial Division yesterday allowed businessman Moto Mabanga to include BG International Limited in his application for amendments of orders in the 13tri/- landmark commercial dispute involving three gas blocks in Mtwara region.

Justice Barke Sahel made the ruling after considering submissions presented by advocate Gabriel Mnyele for the businessman for rectification of the application to include such crucial party in the proceedings.

She dismissed arguments by advocate Gerald Nangi, for BG Tanzania Limited, who opposed the move taken by the businessman, on grounds that he was required to file formal affidavit-supported application.

In Her ruling, however, the Judge said that the law allowed presentation of oral application and that the rectification sought will not have any bearing on the main suit. She pointed out that the law allowed the court to amend any errors on real question and issues raised by parties.

The Lady Justice noted further that the name of BG International Limited was omitted in the chamber summons but was mentioned in the affidavit of Mabanga, supporting the application.

The party was thus envisaged from the beginning to be included in the application. Having so ruled, advocate Emanuel Msengesi, who represents the businessman in the matter, moved the court under Rule 25 (5) (b) of the High Court (Commercial Division) Rules to amend the pleadings in the court file on its own to save time and costs for both parties.

The advocates for the defendants, including Dr Wilbard Kapinga for Ophir Companies, could not raise any objection on the request. Such none resistance paved the way for the court to amend the pleading by including BG International Limited in the application. Thereafter, the Judge adjourned the case to December 8, for hearing of the application. In his application, Mr Mabanga is asking the court to amend the scheduling order of February 20, 2017, by granting him leave to add to the main suit five other defendants.

They include Royal Dutch Shell, Ophir Tanzania (Block 1) Limited, Ophir Tanzania (Block 3) Limited, Ophir Tanzania (Block 4) limited and Pavilion Energy Pte. Mabanga also seeks orders to remove BG Tanzania Limited in the suit and substitute with BG International Limited.

Apart from BG Tanzania Limited, other current defendants in the main suit are Ophir Energy PLC and Ophir Services PTY Limited. The businessman has assigned the reason behind his new action, as to enable the court effectually, and completely adjudicate upon and settle all questions involved in the Commercial case No. 185/2013 involving gas Blocks One, Three and Four and for interest of justice.

Mr Mabanga states in his affidavit to support the application that after the court had made the scheduling order on February 20, 2017, certain new facts came to his knowledge that warrant addition of parties.

Among the new facts include Ophir’s formation of new companies, including Ophir Tanzania (Block 1) Limited, Ophir Tanzania (Block 3) Limited and Ophir Tanzania (Block 4) limited as well as transfer of the entire interests in the three gas blocks to the subsidiary companies.

The interests, according to Mabanga, include the five percent free carry interest belonging to him. “The transfers or assignments were done clandestinely without my involvement in accordance to clause seven of three Consultancy Agreements attached to the plaint,” he stated.

The businessman states that BG Tanzania Limited is a shell company whose presence in Tanzania was a mere façade for overseeing the interest of BG International Limited which actually acquired or got transferred 60 per cent interests from Ophirs Companies.

He accounts further that through its holding company, BG Group PLC sold its 60 per cent interests to Royal Dutch Shell, inclusive of his five per cent interests, but BG Tanzania Limited was now poised to close offices in Tanzania.

“I took initiative in good faith to caution Royal Dutch Shell before the transaction but I was ignored and the parties proceeded irregularly to secure an approval from the Fair Competition Commission secretly without advertising to invite objections from the public,” Mabanga states.

The businessman discloses that he was ignored during the acquisition of the 20 per cent interests in the three gas blocks by Pavilion Energy Pte, whose transaction has now been completed and he cautioned Pavilion that the acquisition included part of his five per cent free carry interest in each of the three gas blocks as per Consultancy Agreements.