Tuesday, August 21, 2012


By Pius Rugonzibwa,

THE Mohamed Enterprises Tanzania Ltd (METL) has requested the Court of Appeal to dismiss the objection raised by a Libyan official, Mr Masoud Mohamed Naser, seeking to challenge the application for revision involving payment of 6.64 million US dollars.

In the application, METL is asking the Appeal's Court to call for the records of the High Court for examination to satisfy itself as to their correctness, legality and propriety of the proceedings and orders given by Judge Fauz Twaib on February 2, 2012.

Before the High Court, Judge Twaib had nullified a consent decree entered by the parties involving the payments by relying on affidavit by Mr Naser, who is believed to be agent with the government of Libya and had claimed that he was pressurized to settle the dispute with METL.

But during the hearing of the application last Friday, counsel for METL Company, Dr Masumbuko Lamwai told Justices James Bwana, Bernard Luanda and Catherine Urio that the respondent (Naser) had weak justifications, based on a mere affidavit to prove fraud on the matter.

"The burden of proof is an obligation of the respondent. Therefore we submit that an affidavit presented before the court had no enough strength since issues in question must be presented with strong evidence," he submitted. He added: "Matters of fraud and duress in the matter before the court must be determined with serious evidence which is lacking in the respondent's claims."

In his response, Advocate Majura Magafu, for the respondent, maintained that the affidavit presented before the High Court by his client had sufficient legal strength to authenticate their claims and it was supported by strong evidence. Earlier, Mr Magafu had asked the panel to dismiss the application in question because the applicant (METL) didn't submit it in time and that the issues presented before the Court of Appeal were not basically raised in the High Court.

"The preliminary objection is a point of law and the Court of Appeal can not entertain an issue which was not raised in the High Court. We submit that the preliminary point we have raised be granted," he submitted.

But in his quick and brief reply, Dr Lamwai said that the respondent was trying to confuse the court by indicating the application was pre-maturely filed and that even if the issue was not raised in the lower court could not make the application untimely.

The panel said a ruling on the matter will be given at a later stage and the parties would be notified. The consent judgment, which is the centre of the dispute in the matter, was given by High Court Judge Augustine Mwarija on May 26, 2011, after METL and Mr Naser reached a settlement on a case involving them.


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