THE Court of Appeal has directed the High Court to hear afresh the suit lodged by former Head of Corporate and Investment Banking with Stanbic Bank Tanzania Limited, Ms Shose Sinare, demanding about 70bn/- compensation from two banks for allegedly defamation.
Justices Gerald Ndika, Zephrine Galeba and Abraham Mwampashi ruled in favour of Ms Sinare, the appellant, after allowing her appeal to fault the decision of the High Court, which had rejected the suit in question after granting a ground of objection raised by the two banks, the respondents, over an issue relating to immunity.
“We set aside the ruling of the High Court and remit the record in respect of Civil Case No 34 of 2016 to the High Court for determination of that case according to law,” they declared against the banks in question, Stanbic Bank Tanzania Limited and ICBC Standard Bank Plc (formerly Standard Bank Plc). During hearing of the appeal, the counsel for Shose Sinare, who is also former Miss Tanzania, had submitted that trial judge grossly misdirected himself in facts and in law in holding that ICBC Standard Bank enjoys absolute immunity in the United Kingdom (UK).
The UK registered Bank had surrendered and reported herself to the Serious Fraud Office (the SFO) in London for prosecution having, accusing the plaintiff of engaging in bribes in a transaction involving financing of 600 million US dollars to the government of Tanzania .
Furthermore, the appellant counsel had also submitted that having regarded to the appellant's plaint on record and the circumstances of the case, the trial judge grossly misdirected himself in holding that he found nothing done by Stanbic Bank, which entitled the appellant to institute the suit against such financial institution.
In their judgment, the justices of the appeals court ruled that the issue of whether ICBC Standard Bank was immune to prosecution under English law was prematurely determined as a preliminary objection because it needed proof and investigation by the High Court.
As to the question of the appellant having no cause of action against Stanbic Bank, the justices held, among others, that the issue was a matter of evidence, thus, could not be determined by the High Court as a preliminary objection.
“That is why we said, the judge decided a point of mixed law and fact as if it was a single pure point of law, which was not the case,” they said.
Facts show that from the year 2010 or thereabouts, the government of Tanzania was in need of raising foreign financing of 550 million US dollars (the Financing) for implementation of domestic public projects in energy, transport, water and sanitation sectors.
In pursuit of that requirement, on November 15, 2012, the government appointed the two banks to act together as a Lead Manager and Sole Book Runner in the procurement of the Financing on its behalf at a fee of two point four 2.4 per cent of the Financing.
However, out of that fee, one per cent would be paid to Enterprise Growth Market Advisors Limited (EGMA), in terms of the Collaboration Agreement which had earlier been entered between the latter and the Stanbic Bank.
The Financing was later increased to 600 million US dollars and in early March 2013, the funds were procured and paid to the government less two point four 2.4 per cent, which is 14,400,000 US dollars.
One point four (1.4) percent of the amount was shared by the two banks and EGMA parted with its 6 million US dollars, the equivalent of one per cent of the financing as agreed with the Stanbic Bank in the collaboration agreement.
According to a written statement of defence of the ICBC Standard Bank, the involvement of EGMA in the procurement of the financing was improper and when she noted the illegality the bank surrendered and reported herself to the Serious Fraud Office (the SFO) in London for prosecution before English courts.
The allegations were to the effect that between June 1, 2012 and March 31, 2013, Standard Bank PLC now known as ICBC Standard Bank PLC, failed to prevent a person or persons associated with Standard Bank PLC, namely Stanbic Bank Tanzania Limited and, or Bashir Awale and, or Shose Sinare.
In the indictment, such persons were accused of committing bribery in circumstances in which they intended to obtain or retain business or an advantage in the conduct of business for Standard Bank PLC, including promising and, or giving EGMA Limited one percent the monies raised.
Because of such a charge following the self-report that was made to the SFO by the second respondent, the appellant felt deeply offended and, therefore, filed the suit in the High Court, claiming 30 million US dollars compensation for ruining her career in banking.
The appellant sought for a declaration that the information passed on to the SFO by the second respondent, was full of misrepresentations and it suppressed material facts of what actually happened.
She also sought several declarations and costs of the suit.