SCANNED 16874

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 16874 of 2024 & MISC. LAND APPLICATION NO. 18009 of 2024

BETWEEN MAGRETH JOSEPH OLAMBO................... PLAINTIFF/APPLICANT

VERSUS KCB BANK TANZANIA LIMITED....1st DEFENDANT/RESPONDENT BIDCITY AUCTION & ESTATE SALES LIMITED......................................2nd DEFENDANT/ RESPONDENT

UTEGI TECHNICAL ENTERPRISES (ITNL ) LTD................................ 3rd DEFENDANT/RESPONDENT

CONSOLIDATED RULING 10/9/2024 & 24/09/2024 A.MSAFIRI. J, This is a consolidated ruling in respect of Land Case No. 16874 of 2024 & Misc. Land Application No. 18009 of 2024. The plaintiff/applicant instituted the suit against the defendants herein. In the suit the plaintiff/applicant claimed that she is the legal owner of the property registered under CT no. 48781 described as Plot No. 161/2/3 Kurasini Service Trade Area, Temeke Municipality in Dar es Salaam.(herein the suit property). i The plaintiff claimed further that on 13/6/2024, the 2nd defendant under instructions of the 1st defendant, without any colour of right, illegally, fraudulently and in bad faith, advertised in the newspaper known as Zanzibar Leo, for auction and subsequent purported sale of the plaintiff's property (the suit property). That the defendants acts of advertising the purported auction and purported sale of the suit property while aware that the 1st defendant has neither issued a default notice to the plaintiff nor communicated to the plaintiff of the appointment of 2nd defendant to advertise, auction and purportedly sale of the suit property clearly indicates that there are calculated fraudulent acts and bad faith by the 1st and 2nd defendants. Among other reliefs sought by the plaintiff/applicant is for the declaration that the advertisement for purported auction and sale of plaintiff's property

under CT. No. 48781 for Plot No. 161/2/3 Kurasini Service Trade Area, Temeke Municipality in Dar es Salaam City is illegal, fraudulent, tainted with irregularities and made in bad faith. Along with the main case, the plaintiff/applicant filed the Misc. Land Application No. 18009 of 2024 seeking for temporary injunction against the defendants/respondents herein, to restrain the same and their workmen, agents, representatives and their assignees from their illegal. 2 and fraudulent acts of intended and purported auction of the suit property pending the hearing of the main case. Upon being served with plaint and chamber summons, the 1st and 2nd defendants filed their joint written statement of defence and counter affidavit to oppose the claim in the plaint and the application. The 1st and 2nd defendants/respondents also raised the preliminary objection on point of law both in the main suit and application as follows: - In the main suit:- 1. That, the Court has no jurisdiction to hear and adjudicate this suit on reasons that the facts constituting the cause of action pleaded in the plaint are matters and questions arising in the decree of this Court in Commercial Case No. 2 of 2011, Clause 9,9.1,9.2 in particular. In the application: - 1. That the application for orders of injunction is untenable in law because the applicant seeks to restrain execution of a decree of the Court

in Commercial Case No. 02 of2011; Clause 9, 9.1 & 9.2 thereof which decreed among others that in the event the Judgement Debtors (the applicant is one of them), shall default, the 1st Respondent/Decree Holder shall have all rights to sell the mortgaged' 3 property. The 1st &. 2nd Respondents shall contend that execution of a Court Decree cannot be restrained by order of injunctions. ” The hearing of the two preliminary objections was done by the way of written submissions. It was mutually agreed by parties and leave was granted by the court that both objections in the main suit and the application be consolidated and argued as one since they are both on the same subject matter. Mr. Octavian Mushukuma, learned Advocate represented the plaintiff/ applicant while Mr. Abel Msuya, learned Advocate represented the 1st and 2nd defendants and Mr. John Chogoro, learned Advocate represented the 3rd defendant. The parties complied with the court's scheduling order. On the first point of objection, Mr Msuya submitted that this court has no jurisdiction to hear and adjudicate on the instant case. He argued that according to the plaint filed by the plaintiff, the cause of action to be determined by the court arising between the parties to the suit, is the same as in the consent decree which was passed by this court in the decree of the Commercial Case No. 2 of 2021 under clauses 9,9.1

and 9-2- M- 4 Mr Msuya submitted further that the court decree (consent decree) covers the plaintiff, 1st defendant and 3rd defendant, it also gives room to the 1st defendant to execute the consent decree without the recourse to the court. Mr Msuya was of the view that the court lacks jurisdiction and is functus officio, and the plaintiff must submit the complaint before the execution court as per Section 38 (1) of the Civil Procedure Code [Cap 33 RE 2019] (herein the CPC). To cement his points Mr Msuya put reliance on the case of Abla Estate Developers & Agency Co. Limited vs KCB Bank Tanzania Limited and Another, Land Case No. 9023 of 2024. Mr Msuya pointed that the decree holder can execute a decree without recourse to court assistance as provided under Order XXI Rule 1(l)(b) of the CPC and restated in the case of Shell and BP Tanzania Limited vs University of Dar es Salaam [ 2002] TLR, 225 at page 232. He said further that the executing court is given wider power when determining matters or issues arising/ relating to execution as provided under Section 38 (2) of the CPC and restated in the case of Hassan Twalib Nguyani vs Tazama Pipeline Limited, Civil Appeal No. 201 of 2018. 5 On the second point of objection, Mr Msuya submitted that the court lacks the power to issue restraining orders in the matter arising from or relating to the execution of the court decree. He cited

the case of National Housing Corporation vs Peter Kassidi and 4 Others, Civil Application No. 246 of 2016. He prayed the court to strike out the application with costs. In reply, Mr Mushukuma for the plaintiff argued that the preliminary objections raised are not pure on pure point of law but mixture of law and facts and they requires proof by producing evidence. That, that is contrary to the principle stated in the case of Mukisa Biscuit Manufacturers Company Ltd. v. West End Distributors Ltd [1969] EA 696. He submitted further that the plaintiff has a cause of action in Land Case No. 16874 of 2024 against the defendants as she is the legal owner of the suit property and the defendants fraudulently has advertised in the newspaper intending to sale the said property by auction. He argued that clause 9.2 does not allow 1st defendant to execute a court decree without the court's assistance. To bolster his points, the counsel cited the case of CRDB Bank Limited vs Rukanga Butchery & General Supplies Ltd, & 3 others, Commercial Case No. 34 of 2001. He prayed the court to dismiss the preliminary objection for lack of merits. M- 6 The 3rd defendant/ respondent never filed her submissions in response to the preliminary objections. Given the rival submissions from the learned counsel, the definite question is whether the preliminary objections are based on point of law. As per the

pleadings filed by the plaintiff, the preliminary objections raised by the 1st and 2nd defendants are based on the plaint together with annexure MJO/5 (a copy of the guarantee and consent agreement). In the case of Mukisa Biscuit Manufacturing Company Ltd. vs. West End Distributors Ltd. (supra), Sir Charles Newbod P. had this to say at page 701:- "So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by dear implication out of the pleadings, and which, if argued as a preliminary objection, may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a p/ea of (time) limitation, or a submission that the parties are bound by the contract giving to the suit to refer the dispute to arbitration." (emphasis added). In the case of Shahida Abdul Hassanali Kasam v. Mahed Mohamed Gulamali Kanji - Civil Application No. 42 of 1999 (unreported), court held that:- 7 The aim of a preliminary objection is to save the time of the court and of the parties by not going into the merits of an application because there is a point of law that will dispose of the matter summarily..." In the light of the above observation, I find that the preliminary objections that have been raised in the instant matter are based on pure point of law, arising out of pleadings. Back to the merits of preliminary objections, the issue is

whether the suit and application before this court i.e. Land Case No 16874/2024 and Misc. Application No. 18009/2024 involves matters in questions arising in the decree of this Court in Commercial Court No. 2 of 2011 Clauses 9,9.1,9.2. In determining this, I had to revisit the pleadings in the plaint filed by plaintiff. At paragraph 5 of the plaint, the plaintiff is seeking for an order that the 2nd defendants advertisement in the newspaper titled Zanzibar Leo dated 13/6/2024, for auction and subsequent purported sale on 05/7/2024, of the plaintiff's landed property under Certificate of Title Number 48781 for Plot No. 161/2/3 Kurasini Service Trade Area, Temeke Municipality in Dar es Salaam City, is illegal, fraudulent, tainted with irregularities and made in bad faith. At paragraph 20 of the plaint, the plaintiff admits the existence of a Deed of Settlement executed by the parties herein on 02/2/2017. In paragraph 8 20 (c) the plaintiff agrees that there is a clause 7 of the Deed of Settlement which mandatorily requires the 1st defendant to enforce the decree of court not otherwise in the event the 3rd defendant failed to repay the loan to the 1st defendant. In the circumstance above, it is crystal clear that the parties herein have settled the matter through Commercial Case No.2 of 2011 in the High Court Commercial Division through a Deed of Settlement which was signed on

02/2/2017 and the consent decree was issued thereof. In the said suit, the Decree Holder was KCB Bank Tanzania Limited (now the 1st defendant) and Utegi Technical Enterprises (T) Ltd was the 1st judgment debtor (now the 3rd defendant), and Magreth Joseph Olambo was the 4th judgment debtor (now the plaintiff). The cause of action in the instant suit Land Case No 1674 of 2024 resulted from the execution of the Deed of Settlement entered in Commercial Case No. 2 of 2011 and the said suit ended by consent decree dated 02/2/2017. In the said consent decree, among other things, the plaintiff, and the 4th defendant with other judgment debtors agreed and were ordered to pay the sum of USD 981,353, 56 to the now 1st defendant. According to clause 9.2 of the Deed of Settlement, the 1st defendant would be at liberty to proceed with the sale of suit property. According to the 9 pleadings, the 1st defendant instructed the 2nd defendant to advertise the auction and sale of the disputed land property. In the instant matters i.e. the main suit and application, the plaintiff attempts to challenge the purported auction and sale of the disputed property on the ground that the 1st and 2nd defendants failed to follow the laid down legal procedures of the recovery of debt. It is trite law that any questions arising between the parties from the passed decree shall be determined by the execution

court. This is as provided under Section 38 (1) of the CPC which provides thus;- 38. -(1) AH questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. From the above-quoted provision, the plaintiff/applicant wants to challenge the execution process of the court decree passed in Commercial Case No. 2 of 2011 by filling the fresh suit which is contrary to the law. In addition, this court is functus officio Xq redetermine matter which was already determined by the competent court, as stated by the Court of Appeal of Tanzania in the case of Mohamed Enterprises T. Limited vs io Masoud Mohamed Nasser (Civil Application 33 of 2012) [2012] TZCA 219 that:- "...Once judgment and decree are issued by a given court, judges (or magistrates) of that court become functus officio 'in so far as that matter is concerned...." In the same breath, this court cannot therefore grant any restraint orders, temporary or permanent as doing so, this court will be restraining the execution of a decree of the court which has not been challenged and reversed. The remedy that the plaintiff has is to knock the doors of the execution court which issued a decree in Commercial Case No 2 of 2011 under the provisions of Section 38 of the CPC as it is a competent court. I find merit in the preliminary objections raised in both Land Case No. 16874 of 2024 & Misc. Land Application No. 18009 of 2024. They are both hereby dismissed with costs. It is ordered. ii