JOHN NEREI JOHN VS DALBIT PETROLEUM LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 24146 OF 2024 JOHN NEREI JOHN……………………………………OBJECTOR/APPLICANT

VERSUS DALBIT PETROLEUM LIMITED……1ST RESPONDENT/DECREE HOLDER CATA MINING COMPANY LIMITED…….2ND RESPONDENT/JUDGMENT

DEBTOR BENARD H. KUWETA t/a Greenlight Auction Mart LTD………………………….3RD RESPONDENT

RULING Date of Last Order: 13/12/2024 Date of Ruling: 14/02/2025 AGATHO, J.: John Nerei is the applicant/objector in a matter which was originally between the first respondent against the second respondent. He is imploring this court to investigate into a claim that the property attached under item 19 of a Warrant of Attachment of Movable Property held by the 2nd Respondent/Judgment Debtor, a motor vehicle with Registration No. T 402 DET, Toyota Landcruiser is his property. The warrant of attachment in question was issued on 6 August 2024 by this Court in relation to Commercial Execution No. 15789 of 2024 so 1 as to satisfy the decretal amount of USD 630, 067.00 owed to the 1st Respondent/Decree Holder. In view of such a Warrant of Attachment issued, the Applicant has filed the present Application for the Court to investigate claims of objection against attachment of a property not liable for attachment and sale on the ground that it is not a property of the 2nd Respondent/Judgment Debtor and that upon such investigation, the court unconditionally release the same. The application is by way of Chamber summons supported by an affidavit deponed by the applicant himself. The 1st and 2nd Respondents appeared in court and filed their respective counter affidavits. The 3rd respondent, an auction mart, despite service being effected vide substituted service entered no appearance and

did not file any counter affidavit. Appearance in this case was through learned counsel Godchire Chirare Castory who appeared for the applicant, Madeline C Kimei and Emmy Msomba advocates for the 1st Respondent, while the 2nd respondent, being a company appeared for herself. In the affidavit, the applicant did not have much to state rather than stating that the property in question is lawfully his. 2 In her brief counter affidavit, the 2nd respondent noted all that was deponed by the applicant in his affidavit. Under such circumstances the rival parts as far as this application is concerned are the applicant as against the first applicant who is otherwise a decree holder in Commercial Execution No. 15789 of 2024. This case was entertained by way of written submissions. The applicant’s submission. Before delving into the gist of the application, the applicant intimated the court about an “error”, he supposedly committed inadvertently in the course of preparing this application. Under paragraph 2 of his chamber summons and also paragraph 2 of the affidavit, it can be seen that the Registration number of the motor vehicle subject of this application appears as T 401 DET instead of T 402 DET which appears in the warrant of attachment. Under the circumstances, the applicant rushed to move the court to rectify the defect under Section 97 of the Civil Procedure Code, a provision which

empowers the court to amend any defect or error in any proceeding for the purpose of determining the real question or issue on such proceeding. The applicant also sought reliance in Rule 4 of the High Court (Commercial Division) Rules 2019 which is to the effect that the Court in administering the Rules, shall seek to give effect to the overriding objective so as to find that T401 DET is a typo and that the correct number 3 of the motor vehicle is T402 DET as appearing in the execution orders and a copy of Registration card attached with the affidavit. Submitting regarding the application, the applicant expounded that his motor vehicle was listed among the properties to be sold to settle the decree in Commercial Execution no. 15789 of 2024 arising from Misc. Commercial Cause No. 211/2017 but he certainly is not a party to the above-mentioned suit and has no legal obligation to settle any debt therein using his property. In light of the foregoing, the Applicant prayed that this Court sets aside the attachment of the Applicant’s motor vehicle with registration number T402 DET Toyota Landcruiser. Also, that it declares the applicant as the lawful owner of the motor vehicle with registration number T402 DET and order costs of this application as well as any other relief(s) as the Court may deem just and equitable. On his side, the 1st Respondent/Decree Holder submitted

first regarding what has been termed by the applicant as an error in typing the vehicle Registration number which appears as T 401 DET instead of T402 DET in the pleadings. It was his firm argument that while under Section 97 of CAP 33 the Court is vested with general power to amend any defect or error in any proceedings for the purpose of determining the real question in issue, the general rule is that such amendment should be 4 consistent with the case originally laid. Cementing on this averment, he cited commentaries from Mulla in the Code of Civil Procedure 16th Edition at page 878 and 879. The 1st Respondent/Decree Holder further blamed the applicant stating that the request for clarifications and amendment has been inordinately delayed showing lack of due diligence and is also an afterthought. He stated additionally that the overriding objective principle cannot be applied in this situation. Qualifying this assertion, he quoted the case of Ecobank (Tz) Ltd versus A.A Trans Limited and 3 Others, Commercial Case No. 96 of 2018 in which the court stated that overriding objective is not there for the purpose of undermining the well laid down procedure rules which are very important in the administration of justice. That aside, the 1st respondent submitted with regard to the Application that the investigation of claims and objections to attachment of properties are governed by

the provisions of ORDER XX1 Rule 57 (1), (2) and Rule 58 of CAP 33 which states: “57.-(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, 5 the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects, as if he was a party to the suit: Provided that, no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed.

58. The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. The 1st respondent wanted the court to draw attention to Annexure A1 of the Applicant’s Affidavit which shows that the Applicant became the owner of the motor vehicle on 01 September 2023 while Commercial Execution No. 15789 of 2024 was lodged by the 1st Respondent/Decree Holder on 30 November 2017. The 1st respondent further submitted that the Court is inclined to deny investigation where the objection was designedly or unnecessarily delayed. He condemned the applicant for delaying to file this application from when the Warrant of Attachment was issued on 06 August 2024 until 30 September 2024 when he lodged this application. 6 In view of the above, the 1st respondent submitted that the Applicant’s Application for this Court to investigate the claims and objection with regards to motor vehicle T401 DET should be dismissed with costs. The applicant filed a rejoinder on 3rd December 2024 instead of 2nd December 2024 as per orders of the court. He accompanied it with what he termed as an affidavit of late reply of rejoinder and along with it, filed the rejoinder. This practice is an abuse of court process and unacceptable. It is a settled position of law in our jurisdiction that late filing of submissions is tantamount

failure to appear for a hearing. Moreover, this anomaly cannot be cured by filing an “affidavit of late reply of rejoinder”. In the case of National Insurance Corporation of (T) Ltd & Another v. Shengena Limited, Civil Application No. 20 of 2007, the CAT at Dar es Salaam while dealing with a rather similar situation stated: - "The applicant did not file submission on due date as ordered. Naturally, the court could not be made impotent by a party's inaction. It had to act....it is trite law that failure to file submission(s) is tantamount to failure to prosecute one's case." 7 This position was also emphasized by the court in the cases of Patson Matonya v. The Registrar Industrial Court of Tanzania & Another, Civil Application No. 90 of 2011, and Godfrey Kimbe v. Peter Ngonyani, Civil Appeal No. 41 of 2014. With the above authorities in place, the applicant’s rejoinder filed out of prescribed time without prior leave of the court is hereby expunged from record. Back to the merit of the application, I have had time to consider this application in line with the pleadings and submissions for and against it. I find that it suffices for this court to determine two or three issues which have arisen herein. The first is whether the court should treat the vehicle registration number appearing in the application as a mere typing error which can be corrected without formal legal process

or else take it that the same has changed the subject matter of the application totally. The second issue to be considered is whether on the date of attachment of a property, the motor vehicle in question was owned by the applicant. The third issue is whether the application has been preferred promptly and not designedly delayed as per the law under Rule 57 of order XXI of the CPC. 8 I will start with the issue of Registration number of the motor vehicle, the subject of this application. Pleadings are loud that the motor vehicle under item 19 of the warrant of attachment in this application is Toyota Land Cruiser with Registration No T 402 DET. It is also true that the applicant in his application has identified the motor vehicle he seeks to challenge its attachment as Toyota Landcruiser with Registration No T 401 DET. The applicant states that writing T 401 was just a human error which the court ought to condone with and allow rectification. On the other hand, the 1st respondent asserts that changing that number will amount to changing the subject matter of the case as a whole so that should not be allowed. I have closely examined the documents on record. Principally, as correctly submitted by the 1st respondent, a motor vehicle may be effortlessly identified through its registration number. In this particular case, together with the application, the applicant has annexed a

copy of a motor vehicle registration card which shows that the motor vehicle he seeks to salvage from attachment is Toyota Land Cruiser with Registration Number T 402 DET, listed as item 19 in the warrant of Attachment. It is obvious that this document is annexed to establish that the applicant is the owner of the motor vehicle subject of attachment in the warrant of 9 attachment. It defeats both logic and common sense that the applicant who claims to own a motor vehicle with No. T 401, will attach a Registration card with No. T 402 to prove the said vehicle’s ownership purposely. Having so observed, I find the averment by the applicant that T 401 was a mere typing error, highly plausible. Justice E. Kileo Rtd. ( as she then was) commented in her dissenting decision in the case of Abdi Adam @ Chakuu vs Republic (Criminal Appeal 157 of 2009) [2012] TZCA 123 (21 February 2012) and also that of Joseph Stephen Kimaro & Another vs Republic (Criminal Appeal No. 340 of 2015) [2015] TZCA 317 (13 October 2015) that human beings are not free of errors in the following words, “Admittedly, we are human beings, we are not perfect and as such sometimes we may err” In that similar vein, I am firmly of the view that justice entails the court to look into the record of the case as a whole and to do otherwise would be a travesty of justice. In order to prevent the ends of justice from being

defeated, I hold that the number appearing as T 401 DET was a mere human error. Applying the Overriding objective principle, I proceed to determine the merit of the application with Toyota Land Cruiser with Registration Number T 402 DET as the property subject of this application. 10 Having disposed that first limb, I will now revert to determine whether the application for objecting attachment has merit. In cases of this nature, the court is called upon to investigate the claim or objection by the applicant. The CPC offers conditions for a successful objection of attachment. The same are envisaged under Rule 58 of the CPC which provides that: The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. As stated earlier, the applicant has annexed annexture A1, a registration card as evidence to substantiate that he owns the motor vehicle in question. A registration card establishes a person’s title to the property. According to it, John Nerei John is a registered owner of a car Make Toyota, Model Landcruiser with registration No T 402 DET since 01/09/2023. The annexure A1 provides a further information that the said vehicle was first registered on 01/11/2004 but then on 01/09/2023 there was payment made in lieu of a change of ownership in favour of the Applicant. Now the law under

Order XXI Rule 58 of the CPC requires the applicant to produce evidence that at the date of attachment, the 11 applicant had some interest in the property under investigation. The date of attachment as far as this case is concerned is the date when the court issued a warrant of attachment that is on 6th August 2024. It therefore goes without saying that when the warrant of attachment was issued on 6th August 2024, the Applicant was already the owner of the vehicle since 01/09/2023. Last but not least is on the 1st respondent’s argument that the objector delayed in bringing this application. This should not detain this court much. It is crystal clear as stated earlier that the warrant of attachment was issued on 6th August 2024. The applicant instituted this matter on Monday, 25th November, 2024 according to the exchequer receipt. It is therefore my firm view that the applicant cannot be adjudged to have delayed in filing the application given the fact that he was not even a party to the case. In the event and for the foregoing reasons, the application has merit hence succeeds. The attached motor vehicle with Registration No. T 402 DET, Toyota Landcruiser is hereby released from attachment unconditionally. Given the nature of the application, I make no order as to costs. It is so ordered 12 DATED at DAR ES SALAAM this 14th Day of February 2025. U. J. AGATHO

JUDGE 14/02/2025 Court: Ruling delivered by Hon. Grace Mwaikono, Acting Deputy Registrar, today this 14th February 2025 in the presence of the parties U. J. AGATHO

JUDGE 14/02/2025 13