IN THE MATTER OF THE COMPANIES ORDINANCE AND IN THE MATTER OF ISAHERO AGRIVET (T) LIMITED EX PARTE JO' CARLO BALLONZI 1989 TLR 83 (HC)

 

IN THE MATTER OF THE COMPANIES ORDINANCE AND IN THE MATTER OF ISAHERO AGRIVET (T) LIMITED EX PARTE JO' CARLO BALLONZI 1989 TLR 83 (HC)

Court High Court of Tanzania- Dar Es Salaam

Judge Kyando J

19 May 1989 F

Flynote

Company Law - Winding up - Opposition to winding up - English Companies

(Winding-up Rules), 1929. G

-Headnote

The petitioner, Jo'Carlo Ballonzi, filed a winding up petition praying that Isahero

Agrivet (T) Ltd (the company) be wound up by the High Court. Petition was filed on

5/9/l988 and was on 4/l0/l988 advertised in the 'Daily News'. The petition was then

set down for hearing on 14/2/l989. In the meantime, on 3/11/l988 Mr. Marando, H

representing the company, appeared before the Deputy Registrar of High Court, and

applied orally and ex-parte for extension of time to file an affidavit in opposition to

the winding-up. The application was granted and Mr. Marando was given seven days

to I file his affidavit in opposition.

1989 TLR p84

KYANDO J

At the commencement of the hearing on 15/l2/l989, Mr. Ballonzi for the petitioner A

raised two points of objection to the presence of Mr. Marando in court on that date

and his affidavit in opposition. Mr. Ballonzi contended that Mr. Marando had no right

of audience because after the petition had been advertised he or the company gave no

B notice to the petitioner of his intention to appear as required by Rule 33 of the

Companies (Winding-up) Rules, 1929. Secondly, that the extension of time granted to

Mr. Marando on 8/11/l988 by the Registrar had been obtained ex-parte and

fraudulently when he (Mr. Ballonzi) and/or his client should have been notified and

given an opportunity of being heard in opposition to it. C

Held: (i) By virtue of ss. 285 and 348 of the Companies Ordinance, Cap. 212 it is the

English Companies (Winding-up) Rules, 1929, which apply to a petition. A Windingup

petition is required to be presented to the Registrar of the High Court D (Rule 26)

and must be advertised "seven clear days before the hearing" (Rule 27);

(ii) rule 33 requiring notice to the petitioner by any person who wishes to

appear does not apply to the company. The rule relates only to persons who have

been notified of the petition by advertisement; E

(iii) rule 28 provides that every petition shall be served upon the company or

otherwise presented at company's registered office. There is nothing to establish that

the company was served with the petitioner's petition at any stage since it was filed in

court. The petition was therefore not served on the company as the law requires and

F the petitioner cannot now be heard to say that the affidavit in opposition is out of

time.

(iv) in exercise of powers conferred on courts by section 95 of the Civil

Procedure Code, l966 Mr. Marando is permitted to give notice of the filing of affidavit

G in opposition to the winding-up in compliance with Rule 35(1) of the Companies

(Winding-up) Rules, 1929.

Case Information

Objections overruled

Ballonzi, for the petitioner H

Marando, for the respondent

[zJDz]Judgment

Kyando, J.: Jo'Carlo Ballonzi, the petitioner, has filed a winding up petition in which

he prays that Isahero Agrivet (T) Ltd (the company) be wound up by this court. The I

petition was filed on

1989 TLR p85

KYANDO J

5/9/88 and on 4/l0/88 it was advertised in the 'Daily News' of that date. It was then set

A down for hearing on 6/l0/88. On that date it was adjourned to 15/10/88 for

mention with a view to fixing another hearing date. On that date, i.e. 15/l0/88,

hearing was set down for 14/2/89. In the meantime, on 3/11/88 Mr. Marando,

representing the company, appeared before Mr. Mrema, the Deputy Registrar of the

High Court, and B applied orally and ex-parte for extention of time to file an

affidavit in opposition to the winding up. The Deputy Registrar granted the

application and allowed Mr. Marando seven days from the 3rd of November l988 to

file his affidavit in opposition. He (Mr. Marando) filed the affidavit on 8/11/88. C

On 14/2/89 the hearing of the petition was adjourned to the next day, i.e. 15/2/89. At

the commencement of the hearing on 15/2/89, Mr. Ballonzi for the petitioner raised

two points of objections to the presence of Mr. Marando in Court on that date and his

affidavit in opposition. He (Mr. Ballonzi) contended that in the first place Mr.

Marando D had no right of audience because after the petition had been advertised

he or the company gave no notice to the petitioner of his intention to appear as

required by Rule 33 of the Companies (Winding-up) Rules l929. Secondly he

contended that the extension of time granted to Mr. Marando on 8/11/88 by the

Deputy Registrar had E been obtained ex-parte and fraudulently when he (Mr.

Ballonzi) and/or his client, the petitioner, should have been notified and given an

opportunity of being heard in opposition to it. He referred to Rule 8 of the Windingup

Rules which provides that every application, other than a petition, under the Rules

must be made by either motion, F if made in court, or Summons, if in Chambers, and

that notice of the application must be served on the other party. Mr. Ballonzi

contended that the application for extention of time by Mr. Marando was not made in

accordance with Rule 8. He submitted therefore that Mr. Marando's affidavit in

opposition was time-barred. He said further G that as there is no proper order

granting extension of time to date, the affidavit in opposition is not properly before

the court and should be dismissed. He contended that once that is done, the petition

will stand unopposed and he prayed therefore that it be granted as prayed. H

In reply Mr. Marando argued that his client, the company, was under no obligation

under Rule 33 (supra) to give notice of intention to appear because, he contended,

notice under that rule is required from creditors, contributors, etc, but not from the

company itself which is the subject of a winding-up petition. In any case, Mr.

Marando I contended, the obligation, if any on the part of the company

1989 TLR p86

KYANDO J

to serve notice would only have arisen if the petitioner had served the company with

the A petition as required by Rule 28. He argued that the petition was not served on

the company as required and Mr. Ballonzi cannot now be heard to say that the

petitioner has not been served with notices to appear from it. B

Concerning the extension of time granted by the Deputy Registrar on 3/11/88 Mr.

Marando argued that it is common practice to ask for extension of time during

mention of cases. He said the matter was brought before the Deputy Registrar on

3/11/88 and he prayed on that date, orally, that he be given more time to file the

affidavit in C opposition. He said this was granted and he sees nothing irregular

about it. He submitted that the objections by Mr. Ballonzi were baseless and prayed

that he be permitted to be heard in opposition to the petition.

It is not in dispute between the parties to this matter that by virtue of ss.285 and 348

of D the Companies Ordinance, Cap 212 it is the English Companies (Winding-up)

Rules, l929, which apply to a petition such as the present one. Under those rules a

winding-up petition is required to be presented to the Registrar of the High Court

(Rule 26) and must be advertised "seven clear days before the hearing" (Rule 27). Rule

28 provides E that every petition shall be served upon the company, unless presented

by it, at its registered office etc. Then under Rule 33, every person who intends to

appear on the hearing of the petition must serve on, or send by post to, the petitioner

or his advocate or agent at the address stated in the advertisement of the petition

notice of his intention F to so appear. A person who has failed to comply with this

requirement "shall not, without the special leave of the court, be allowed to appear on

the hearing of the petition". In the instant matter, Mr. Ballonzi argues that the

company is caught by these provisions of the Rules because it has failed to give a

notice. Rule 29 provides that G every petition for the winding-up of a company by

the court shall be verified by an affidavit referring thereto. Rule 35(1) provides that

affidavits in opposition to a petition, such as the one filed by Mr. Marando herein,

"shall be filed within seven days of the date on which the affidavit verifying the

petition is filed". In the present matter the H affidavit verifying the petition was filed

on 5/9/88, i.e. on the date on which the petition was filed. The affidavit in opposition

to the Winding-up was filed on 8/11/88 as already shown. Mr. Ballonzi submits that it

was filed outside the prescribed period of time and should be disregarded. I

On the requirement of notice to the petitioner by any person

1989 TLR p87

KYANDO J

who wishes to appear under Rule 33 I have no doubt in my mind, and I agree with

Mr. A Marando that it does not apply to the company. The rule relates to persons

who have been notified of the petition by advertisement. It states:

33 Every person who intends to appear on the hearing of a petition shall serve

on, or send by B post to, the petitioner, or his advocate or agent, ... at the address

stated in the advertisement of the petition notice of his intention. (underlining

added). C

The notice follows on an advertisement of the petition. The company, on the other

hand, is not served or notified by advertisement. Under Rule 28 it is notified by (or

served with) the petition itself and upon being served with the petition what it is

required to do, if it wishes, is to file an affidavit in opposition under Rule 35, and not

to D give a notice as Mr. Ballonzi would wish this court to hold. There are two

separate procedures therefore in relation to the company and other persons when

winding up petition is filed. For the company, it is served with the petition and if it

wishes to oppose it must file an affidavit in opposition. For other persons, they are

notified by E advertisement and if they wish to appear on the date of hearing of the

petition they have to give notices to the petitioner indicating their intentions. It does

not sound logical to me that for a company it should be served both by advertisement

and by service of the F petition, or that it should give notice and also file affidavits in

opposition. It is upon filing of an affidavit in opposition that notice of its filing is

given to the petitioner I hold therefore, as I have indicated already, that the

requirement to give notice under Rule 33 does not apply to the company. I do

therefore overrule Mr. Ballonzi's objection to the company's appearance in this

matter. G

Concerning the filing of the affidavit in opposition out of time, Mr. Marando

complains, as shown, that the company was not served with the petition as required

by Rule 28 (Supra). Mr. Ballonzi in reply has contended that the company must have

become H aware of the filing of the petition because at some stage it took steps

towards opposing the petition. He contended that in any case he had seen a copy of

the petition signed by the company indicating that it had been served. With respect,

there is nothing before me to establish that the company was served with the

petitioner's petition at any stage since it was filed here. There is nothing in the Court

file to I

1989 TLR p88

KYANDO J

show this. Becoming aware of the petition by the company as Mr. Ballonzi contends

is A not service on it. Mr. Ballonzi should have ascertained it in fact, and shown to

the court positively, that service had been effected, and if so when before he launched

his attack on the affidavit in opposition. I hold that the petition was not served on the

B company as the law requires. For this reason Mr. Ballonzi cannot now be heard to

say that the affidavit in opposition is out of time. The rather irregular procedure

employed in extending the time for filing the affidavit in opposition was necessitated

by Mr. Ballonzi's failure to serve the petition on the company. I think that

irregularity is C excusable in the circumstances and I hold that the affidavit in

opposition was filed in time, as extended by the Deputy Registrar.

There is one point though in relation to this affidavit in opposition to the petition.

Rule 35(1) of the Companies (Winding-up) Rules requires that once the affidavit in D

opposition has been filed, notice of the filing of the affidavit must be given, on the

date it is filed, to the petitioner or his advocate or agent. In the instant matter, no

such notice appears to have been given by Mr. Marando or the Company to Mr.

Ballonzi or the petitioner. This is rather contrary to the rules. However while failure

to give notice E under Rule 33 is attendable by a person being barred from appearing

at the hearing of the petition, Rule 35(1) does not say what results from failure to give

notice upon filing an affidavit in opposition. I think it will all depend on the

circumstances of each case. In this instant matter, under powers provided for in s.95

of the Civil Procedure Code, F l966, I will permit Mr. Marando or the Company to

give notice as from today of the filing of the affidavit in opposition to the petition. He

is given three days from today within which to file the notice. This notice will, of

course, be sort of formality to Mr. G Ballonzi because he is already aware that the

affidavit in opposition has been filed. It will, however, give him an opportunity to

replying to it under Rule 35(2). He is to file the affidavit, if any, in reply within the

days from the date when notice of filing of an affidavit in opposition will be received

by the petitioner or Mr. Ballonzi. Then the H petition is to be set down by the

Registrar for hearing.

In the final result then, the objections raise by Mr. Ballonzi to the appearance of the

company and to the affidavit in opposition to the Winding-up petition are overruled.

I

Objections overruled.

1989 TLR p89

A