Court name
High Court of Tanzania

In The Matter of The Companies Ordinance & In The Matter of Isahero Agrivet (T) Limited Ex Parte Jo' Carlo Ballonzi () [1989] TZHC 18 (19 May 1989);

Law report citations
1989 TLR 83 (TZHC)
Media neutral citation
[1989] TZHC 18
Coram
Kyando, J.

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

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 Winding-up 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

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 Haffidavit 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

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

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.

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