THE constitution petition over interest rights involving Tanzanian businessman Moto Mabanga on three gas blocks located in Mtwara Region, Southern Tanzania, has taken a new turn following contentious arguments whether the High Court has jurisdiction to determine the matter or not.
While advocates for the local
businessman maintain that the High Court is well vested with powers to
adjudicate the petition, counsel for three foreign companies Ophir
Energy PLC, Ophir Services PTY Limited and British Gas Tanzania, dealing
with exploration of gas are of different views.
The contentious arguments follows an
invitation by Judges Aloysius Mujulizi, Edson Mkasimongwa and Lugano
Mwandambo, to require the parties to address them on a number of issues
on dispute relating to interest rights on the three gas Blocks One,
Three and Four.
Among the issues include whether the
High Court should act as an appellate jurisdiction after the matter
being determined by the Commissioner of Petroleum Affairs and whether
the consultancy and termination agreements could be admitted as evidence
without payment of stamp duty.
Advancing reasons to support their
position, advocates Gabriel Mnyele and Jethro Turyamwesiga submitted
that it was clear from pleadings that what was being complained of in
the petition was breach of Mabanga’s basic rights occasioned during
process of terminating the consultancy agreement.
They told the panel that was not at all
ancillary to any operations of exploration or development and such
categories of disputes may only cover service providers during
exploration or development operations, which was not the case before the
court.
“It is therefore submitted that it was
quite proper not to rafter the dispute to the Commissioner as he was not
seized with jurisdiction to entertain the dispute in this nature.
Therefore, the petitioner did not have
any alternative avenue to apply for redress prior to petitioning the
High Court,” they submitted. Further to that, according to the
advocates, jurisdiction to entertain disputes arising from breach of
basic rights under part III of the Constitution as per Article 30 940 of
the Constitution of Tanzania read together with Basic Rights and Duties
Enforcement Act are vested with the High Court. “Matters complained of
in the petition constitute the breach of basic rights.
The commissioner for petroleum has no
power to entertain the same. It cannot be said therefore that there was
other adequate avenue of redress available to petitioner before
approaching the High Court,” they argued.
Regarding the question of payments of
stamp duty, the advocates agreed that indeed such payments were not made
for the consultancy and termination agreements, but submitted that lack
of stamp duty in a document cannot vitiate the existence of the
petition, neither cause it to be struck out.
However, Dr Wilbard Kapinga, advocate
for Ophir Energy PLC and Ophir Services PTY Limited and counsel Joseph
Ndazi for the BG Tanzania, requested the court to “strike out” the
petition with costs for Mabanga’s failure to exhaust alternative
remedies available to him before going to court.
“We submit that because the petitioner
has not exhausted alternative remedy available before the Commissioner
for Petroleum Affairs with respect to the dispute, the petitioner has
offended section 8 of the Basic Rights Act and for this reason his
petition should be denied,” they submitted.
The advocates submitted that the dispute
as pleaded in the petition was the nature that falls with the first
instance adjudicatory jurisdiction of the commissioner for petroleum
affairs and since there was no evidence that it was referred to him and
was refused, the court jurisdiction was barred as per the law.
On the question of stamp duty payable to
the consultancy and termination agreements, counsel for the foreign
companies submitted that section 5 (1) of Stamp Duty Act requires
payment of stamp duty on every instrument specified in the Schedule to
the Act, thus making mandatory requirement.
“Therefore, the consultancy agreements
and the termination agreement pleaded by the petitioner are mandatorily
chargeable with stamp duty. It will be seen that upon examination of
those agreements, there is no evidence that stamp duty was affixed on
the face of those instruments,” they submitted.
In the petition, Mr Mabanga claims to be
coerced by the three firms to surrender his interests in the three
blocks One, Three and Four, to receive undervalued consideration of 7.5
million US dollars.
He alleges that he was underpaid in
respect of his rights of five per cent in each of the three blocks, 7.5
million US dollars, while the true value of exactly the same interests
in accordance with the industry value thereof was at least 322 million
US dollars.
As a result, the businessman was
deprived of his rights to own property on a fair remuneration and
compensation and was forced out of the new corporate set up on racial
basis.
Such acts, including that of
discrimination of being called a black African, were unconstitutional as
were against Articles 13 (1) (2) (3) (4) and (5) and Article 23 (1) and
Article 24 (1) (2) of the Constitution of the United Republic of
Tanzania.
The petitioner is, therefore, seeking
for declaratory orders sanctioning the respondents for the
unconstitutionality of their acts and conduct and that they benefited
illegally from their unconstitutional actions against him with respect
of his interests in the said gas blocks.
He is further seeking for an order to
protect him as provided for in the Constitution, with respect to his
right to his interests in the said three gas blocks, notwithstanding the
fact that he was deceived by the respondents on the matter
