TANZANIA BUNDU SAFARIS LTD v DIRECTOR OF WILDLIFE & ANOTHER 1996 TLR 246 (HC)

 

TANZANIA BUNDU SAFARIS LTD v DIRECTOR OF WILDLIFE & ANOTHER 1996 TLR 246 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mapigano J

B

CIVIL CASE NO 21 OF 1995

17 August, 1995

Flynote

Civil Practice and Procedure - Contempt of court - What constitutes. C

Civil Practice and Procedure - Contempt of court - Proceedings for - Purpose of such

proceedings.

Civil Practice and Procedure - Contempt of court - Application for committal for -

When competent. D

-Headnote

The Plaintiff is a hunting-safari tour operator. It takes its clients on such safaris in

Tanzania, collects fees from them, remits a portion thereof to the Government and

then exports the trophies from the hunt to its clients in their home countries.

The First Defendant, in its turn, allocates to the Plaintiff various hunting blocks for

the E purpose of its safaris. In letters dated 3 March 1990 and 24 January 1995, the

First Defendant informed the Plaintiff that it was confiscating the Plaintiff's trophies

for failure to remit fees, and that it was withdrawing the Plaintiff's hunting blocks

and removing it from the list of operating companies, respectively. F

Aggrieved by the First Defendant's decisions as aforesaid, the Plaintiff obtained two

orders against it. On 31 January 1995, the Plaintiff obtained a temporary injunction

ordering the First Defendant to suspend the withdrawal of the blocks, pending the

outcome of a chamber summons suit (filed the same day) for the determination of the

G validity of the First Defendant's decision. On 12 May 1995, a consent order was

made in regard to the chamber summons that the terms of the consent order made by

Kyando J in Misc. Cause No. 84 of 1994 should be honoured by the First Defendant.

The Plaintiff applies to this Court for the committal of the First Defendant, in that it

is alleged that he is in default of the above two orders for failure to return the blocks

to the H Plaintiff.

Held:

(i) On the facts before the Court, the First Defendant had actually failed to

carry out his obligations and that his failure constituted a breach of the orders.

I (ii) The First Defendant understood the purport of the orders and even

went so far as to re-allocate the blocks in question to other persons. It

1996 TLR p247

A has accordingly deliberately set the Court at defiance and actually

flouted the orders of the Court.

(iii) The prime object of contempt of court proceedings is to vindicate the

rule of law, rather than to punish an individual. The punitive jurisdiction of the court

to punish for contempt is based upon the fundamental principle that it is for the good

of the public and the parties that such orders should not be despised or slighted. B

(iv) Civil contempt does not require immediate imprisonment, for it is also

punishable by the imposition of a fine.

(v) The penalty, in casu, which corresponds to the measure of contempt

and the injury to the public interest, is that the First Defendant personally is fined in

the C amount of Shs. 200,000/=, payable within seven days, failing which,

incarceration for three months.

(vi) Costs in favour of the Plaintiff.

Case Information

Ordered accordingly.

Nyange, for the Plaintiff. D

Salula, for the Defendants.

[zJDz]Judgment

Mapigano, J:

Disciplinary proceeding has been brought by the plaintiff company against the

Director of E Wildlife by which an order to commit the said Director to prison for

contempt of court is sought, and in this ruling I will refer to him simply as `The

Director'.

The abbreviated background of the matter is this. The plaintiff is an outfitter of

tourist hunting safaris, and was allocated hunting blocks by the Director for that

purpose. It has appointed agents abroad to look for and bring clients to Tanzania for

hunting expeditions. F The agents are required to collect fees from the clients and

transmit a portion of the sum so levied to Tanzania; and on its part the plaintiff is

required to export the trophies gathered by the clients during the expeditions to

them. G

By a letter dated 3 January 1990 the Director notified the plaintiff of his decision to

confiscate the trophies acquired by its clients during the 1988/89 hunting season. His

action was allegedly based upon a default on the part of the plaintiff to cause the fees

to be remitted. And by a letter dated 24 January 1995 he notified the plaintiff of his

decision H to withdraw the hunting blocks from it and to remove it `from the list of

operating companies in Tanzania', the justification of the action being the allegation

that the plaintiff had failed to export the trophies.

Aggrieved, the plaintiff instituted this suit on 31 January 1995 to impugn the validity

of the I decision of the Director and to seek, inter

1996 TLR p248

MAPIGANO J

alia, a nullification of the decision and a restoration of the blocks to it. A

On the same day the plaintiff took out a chamber summons applying for a temporary

injunction to restrain the Director from giving effect to his decision. Again on the

same B day it obtained an interim order, upon an ex-parte verbal application, which

enjoined the Director to suspend the withdrawal of the blocks pending the hearing

and determination of the chamber summons.

On 12 May 1995 a consent order was made in regard to the chamber summons that

the terms of the consent order made by Kyando, J in Misc cause No 84 of 1994 should

be C honoured by the Director.

The charge against the Director in this committal proceeding is that he has refused to

comply with the orders of 31 January 1995 and 12 May 1995, in that he has not

returned the blocks to the plaintiff D

I pause here to say a few words about Misc cause No 84 of 1994, which I will

henceforth call `The other case' or `that case'. It was an application for prerogative

reliefs brought by the plaintiff, along with two others, against the Principal Secretary

in the Ministry of E Tourism, Natural Resources and Environment. In relation to the

plaintiff that case was in all respects similar with this suit, save, as just mentioned, for

the parties impugned and the mode of proceedings, and this is virtually recognised by

the Director vide para 25(c) of his counter-affidavit in the injunction proceeding in

this case, and it may also be F observed that that counter-affidavit is almost a replica

of the one he filed in that case. I should, therefore, be permitted to pay attention and

make references to some of the materials and documents obtaining therein and adopt

certain findings which were pronounced by this court. G

Upon an application for a temporary injunction brought by the applicants in that case,

Kyando J gave an order on 15 August 1994 that the status quo be maintained and that

order still subsists. The Director, though not a party, felt obliged to restore the blocks

to the applicants, and he did so in the same month. But he later turned round and H

dispossessed the applicants of the blocks. Committal proceedings were then brought

by the applicants against the Principal Secretary and the Director for contempt. The

applications failed. This Court held that the Principal Secretary was not answerable

for the wrongs which were committed by the Director; and that although the conduct

of the I Director could be regarded as perverse and detractive of the status quo order,

he could not be held to be in

1996 TLR p249

MAPIGANO J

contempt, regard being had to the fact that he was neither a party to the substantive

A application or the person who was restrained by the injunction.

The Director has deposed in para 13 of his counter-affidavit in the instant application,

as he did in the other case, but the plaintiff denies, like it did in that case, that the

restoration B of the blocks to the plaintiff in August 1994, was made upon the

plaintiff's undertaking that it would pay the requisite block fees. I dealt with this

point in the other case. I did not accept the Director's assertion.

In para 15 of the counter-affidavit the Director makes the allegation that the blocks

were C available to the plaintiff for utilisation for the whole of the 1994/95 hunting

season, which started in July 1994 and ended in March 1995. This allegation is

undoubtedly false, and the letter of 24 January 1995 gives him that lie.

The Director also makes the allegation in para 10 of the counter-affidavit, that what

D engendered the withdrawal of the blocks was a failure on the part of the plaintiff

to meet the requisite block fees. I just cannot help thinking that the Director has

misconceived the present proceeding, if he does not have a serious credibility

problem. No doubt, his deposition is at variance with what he wrote in his letter of 24

January 1995. As we have E already seen, he stated in that letter, in terms explicit,

that his decision was predicated upon the plaintiff's failure to consign trophies to its

clients abroad.

The essence of the Director's arguments in paras 8 and 9 of the counter-affidavit is

that the real purpose of the order given by Kyando J on 15 August 1994 in the other

case F was the preservation of the condition in which things were at the time when

the order was made. I have also dealt with this point in that case. I held that the true

intent of that order was the preservation of the state of things which obtained at the

time of filing that case until the rights of the parties could be ascertained and finally

determined. And I G demonstrate that that is exactly what the director took the

order to connote.

Paragraph 26 of the counter-affidavit sets out two contentions. The first is that there

is no suit which has been properly instituted in court, and that an interim injunction

cannot H thus be granted. I must suppose that this contention has reference to the

other case. The second argument is that the injunction granted by this court has

passed out, given the provision of GN 508/91, which in so far as is relevant, stipulates

that a temporary injunction prevails for a period of six months only, unless that

period is extended. I

I am quite unable to agree. The Director has possibly overlooked

1996 TLR p250

MAPIGANO J

the fact that the second injunction order in this case was made on 12 May 1995, and it

A cannot, therefore, be said that its period has expired. If the Director has in mind

the ex-parte order of 31 January 1995, it is pointed out to him that the breaches

charged are said to have occurred when that order was still in force, which renders

GN 508/91 absolutely irrelevant. B

I proceed to consider and decide the question whether the Director is in breach. The

order of 31 January 1995 directed the Director to suspend the withdrawal of the suitblocks.

As the plaintiff rightly contends, that order was meant to prevail until it was

C discharged or superseded by another order. As long as it existed it should have

been obeyed by the Director. And to all intents and purposes the order had the effect

of restoring the relationship of the parties to what it was before 24 January 1995. But

what has happened is that the Director has not only refused to suspend the

withdrawal but has purported to re-allocate the blocks to other persons. D

The order of 12 May 1995 displaced the ex-parte order. But as I have already pointed

out, that order embraced the terms of the order of 15 August 1994 made in the other

case and those terms were designed to preserve the state of things existing at the time

E that case was instituted. I should also repeat, by way of emphasis, that that is

exactly what the Director perceived it to imply!

In the circumstances I entertain no doubt whatever that the Director has actually

failed to carry out his obligations and that his failure constitutes a breach. F

Next, I have to consider and decide the point whether the Director is in contempt.

His contention in para 29 of the counter-affidavit is that there was no intention on his

part to show disrespect to the Court, and his plea is that he should be pardoned.

I have given the matter my best consideration and I am sorry to say that I have been

G unable to accept the Director's contention. The Director does not deny that he was

cognizant of the orders, and I may repeat again that he understood their purport. But

he still refused to give possession of the blocks back to the plaintiff. Not only that. He

proceeded to reallocate the blocks to other persons. This, in my view, is clear

evidence, H and I am satisfied beyond all reasonable doubt that Mr Ndolanga, the

incumbent Director, has deliberately set the court at defiance and actually flouted the

orders of the Court.

Lastly, I have to consider and determine the question of punishment, which has also

I exercised my mind greatly. Disregard of orders of court is certainly a matter of

gravity, whatever the order may be

1996 TLR p251

MAPIGANO J

and irrespective of whether it has been irregularly or erroneously made. The punitive

A jurisdiction of the court to punish for breach is based upon the fundamental

principle that it is for the good of the public and the parties that such orders should

not be despised or slighted. And I think it is neither incongruous nor extravagant to

add that a party, however highly placed or well-circumstanced he may happen to be,

ought to know that he is B obliged to obey the orders given by courts, and indeed,

that is perfectly consistent with the much talked about rule of law concept.

The prime object of proceedings of this nature is to vindicate the rule of law by a

finding C of contempt, rather than to punish an individual. It seems to me, however,

that Mr Ndolanga's degree of contumacy is sufficiently great to justify this court in

inflicting punishment upon him. Indeed, I consider his contempt as bordering on

flagrance in the very least. But I have, nevertheless, hesitated to send him to prison

straightaway. D

The law holds that civil contempt is also punishable by imposition of fine. The

penalty I award, which in my judgment corresponds to the measure of contempt and

the injury due to the public interest, is that Mr Ndolanga is to pay a sum of two

hundred thousand shillings (Shs 200,000/=) as a fine within a space of seven days from

today, and if he E defaults, to go to jail to serve a term of three months. It is so

ordered. It is also ordered that he pays the costs incurred by the plaintiff in this

application.

1996 TLR p252

A