VODACOM Tanzania Foundation, a company limited by guarantee registered to carry on business as a non-governmental organisation under the Tanzanian law, has petitioned the High Court’s Commercial Division to oppose from being de-registered from the register of companies.
According to court records, the company has sought the court’s intervention for restoration orders in the register of the companies so that it could properly wind up its affairs, in particular to close the projects, retrench its staff, provide a report and account for donor funds.
Already, High Court Judge Deo Nangela has ordered for hearing on merits the petition in question having rejected some grounds of preliminary points of objections raised by the Registrar of Companies, the respondent.
Before its de-registration, it is alleged that Vodacom Tanzania Foundation was a sole operator established as non-profit organisation to carry on interior relief poverty and through public donor funding organised via Vodacom Group of South Africa and Vodafone of the United Kingdom.
Launched in 2006, the Vodacom Tanzania Foundation worked collaboratively with a diverse set of experts, non-governmental organisations (NGOs) and Community- Based Organisations (CBOs) to support and complement development efforts by the government of Tanzania.
Immediately after being served with the petition, the respondent filed a reply and accompanied with a set of grounds of objections with effect that the petition is bad in law for being brought by non-existing petitioner.
The respondent stated that the petition was unattainable and bad in law as it has been overtaken by event and was brought under wrong provisions of the law and that the petitioner has no cause of action against the respondent.
Having deliberated the submissions presented by the parties on the matter, the judge sided with what was stated by counsel for the petitioner that the question of his client being in existence or not is not purely based on matters of law which can bring the petition to an end.
“It is rather a matter of mixed facts and law. I hold that view because, looking at the objection, it is clear that there will be a need for further evidence to establish the fact that indeed the Petitioner was registered as a company and, one has as well to find out in what description was it registered,” he said.
Therefore, Dr Nangela dismissed such ground of objection as being one calling for evidence or further scrutiny, thus not befitting the so -called preliminary objection in its strict sense.
He also overruled the ground regarding wrong citation of law that could empower the court to determine the petition.
“I have looked carefully at the petition. I am satisfied, in my view that, since the application is intended to seek for restoration order, the provision upon which it is premised allows for an application of that nature to be brought before the Court,” he said.
According to him, whether the petitioner qualifies to benefit from what the provision states is not an issue to be adjudged at a preliminary stage because it would need other justifications to be placed before the Court, a matter which should be argued in the course of determining the merits of petition.
Regarding the objection of lacking cause of action, the judge pointed out that if section 400-A (4) of the Companies Act provides for a possibility to make applications even after an aggrieved person is no longer in the register then a respondent to such case would definitely be the Registrar of Companies.
He said that there would be a cause of action but whether the petitioner’s cause of action would win a day in court or not that was completely a different issue best resolved if the parties are given full audience to argue their case.
“As such, the last point of objection cannot stand. In the upshot, I find that, the respondent’s preliminary objections have no legal merit and I hereby proceed to overrule them. The parties are hereby ordered to proceed with the hearing of the petition,” the judge ruled.
The petitioner was a company limited by guarantee registered on October 29, 2007. The Petitioner was issued with a registration certificate to carry on business as Non-governmental organisation under the law of Tanzania.
It is stated that on June 30, 2019, the Written Laws (Miscellaneous Amended) (No 3) Act, 2019 amended the Companies Act and that Non-Government Organisations (NGOs) were given two months from August 30, 2019 to comply with the requirement of the Law.
On September 11, 2019, the Registrar of Companies issued a public notice to the effect that all companies limited by guarantee, not having shares capital, were struck off the register of companies by operation by the law from September 1, 2019.