abdallah issa mpili vs mohamedi rashid mungya em express transport co ltd 2 others 2023 tzhc 21864 21 september 2023

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY IN THE.HIGH COURT OF TANZANIA . . (MTWARA DISTRICT REGISTRY)) . ■

AT MTWARA PC CIVIL APPEAL NO .13 OF 2023 (Originating from. Lindi District Court of Lindi in Civil Appeal rio.2 of2023y ABDALLAH ISSA APPELLANT : VERSUS.

MOHAMEDI RASHID MUNGYA (E&M EXPRESS TRANSPORTCO: LTD)>.,.^a»^„b1sT RESPONDENT YONO AUCTION MART & CO. LTD...,.„,......m»,.mx.^^,5.RESMN.DENT MWANAHAMISI SAI DI MAJONDE......................,3rd RESPONDENT RULING ■ 21/9/2023 LALTAIKA, Jto The present appeal has originated from Civil Case No.36 of 2022 from Lindi Urban Primary Court. In that matter, the first respondent had instituted a civil matter against the Twalibu Juma Makuya (not party to this appeal) and Mwanahamisi Saidi Majonde, the third respondent herein (The wife of the appellant herein, ABDALLAH ISSA MPILI). The first Page iof 6 respondent had claimed a compensation of a loss caused by Twalibu Juma Makuya and Mwanahamisi Saidi Majonde. The claimed amount was at the tune of TZS. 7,000,000/- which was resulted from transportation business of sesame. At the trial court; the matter went to a full trial and the trial court was satisfied the first respondent had proved his claim against Twalibu Juma Makuya and Mwanahamisi Saidi Majonde on balance of probability and ordered the same to pay the first respondent TZS. 7,000,000/-. On 29/11/2022 the first respondent lodged a letter at the trial court for executing the judgement and decree/order of Civil Case No.36 of 2022, In the said letter the first respondent prayed for an attachment and sale of the properties of Twalibu Juma Makuya and Mwanahamisi Saidi Majonde. Therefore,

on 26/01/2023 the trial court appointed the court broker Yono Auction Mart & Co. Ltd (now the second respondent) to execute the order of the court. In that order, the second respondent was required to attach and sale two cashew farms and a. house belonged to Twalibu Juma Makuya. In addition, the second respondent was required to attach and sale five acres of cashews and one house belonged to Mwanahamisi Saidi Majonde, Thus, the second respondent attached the said properties and was waiting for sale of the same. Upon attaching the said properties, the appellant filed an objection proceeding before the trial court. He moved the same via a letter and he made two complaints. One, he is the husband of Mwanahamisi Saidi Majonde. Two, the house(s) attached by the second respondent belonged to him, the appellant. Upon hearing the objection, the trial court dismissed PzigS 2 of 5 the same and henceforth ordered the second respondent to proceed with the execution. Dissatisfied, the appellant appealed against the ruling of the trial court at the District Court of Lindi vide Civil Appeal No.02 of 2023. After concluding the hearing, the first appellate court dismissed the appeal for being devoid of merit. Again, dissatisfied the appellant has appealed to this court on two grounds which I take liberty to reproduce herein under:- That, the proceedings of the court was irregular from the beginning and the case is defective since its filing.

2. That, the learned magistrate erred in law and facts when it ordered the attachment of the property not Hable for attachment, typically as it did not belong to the judgement debtor the third respondent. When this matter was called on for mention today, the appellant was present in person though was being represented by Mr. Emanuel Ngongi, learned Advocate while the first and third respondents appeared in person and unrepresented. Regarding the second respondent did not: enter appearance. Before going further, Mr. Ngongi contended that the matter was coming for mention. However, he admitted that he was instructed only yesterday. The learned counsel submitted that he has gone through the court file. He contended that the present appeal is based on objection proceedings on Civil Case No.36 of 2022 from Lindi Urban Primary Court. The learned counsel averred that as to his knowledge, the remedy on failure of objection proceedings is not to appeal but to institute a fresh suit. Thus, Mr. Ngongi prayed to withdraw the appeal under Rule 7 of the Civil Procedure (Appeal in Proceedings Originating from Primary Courts) Rules GN No.312 of 1964. He quoted the rule that: Page 3of 6 "The appellant may withdraw his appeal at any time prior to the hearing thereof. In response, the first and second respondents did not object the prayer by Mr. Ngongi. Having dispassionately gone, through the

prayer by Mr, Ngongi, I am inclined to decide whether to admit the ptoyer or refuse. Before I answer this question, it is imperative to know the law governing objection proceedings in primary courts in our jurisdiction. In fact, the provision of the law which guides objection proceedings in the Primary Court is Rule 70 of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules G.Ns, Nos. 310 of 1964-119 Of 1983 provides: - "70 (l)Any person, other than thejudgment debtor, who claims to be the owner of or to have some interest in property which has been attached by the court may apply to the court to release the property from the attachment stating the grounds bn which he bases his objection. (2) On receipt of an application under sub-rule (1), the court, shall fix a day and time for hearing the objection and shall cause notices thereof to be served upon the objector, the judgment-creditor and the judgment debtor. (3) No order for the sale of such property shall be made until the application has been determined and If any such order has been made, it shall be postponed. (4) On the day fixed for the bearing, the court shall investigate the objection and shall receive such evidence as the objector, the judgment-creditor and the judgment debtor may adduce. (Sj If the court is sa tisfied tha t the property or any part of it does not belong to the judgment debtor, it

shall make an order releasing it or such part of it from the attachment. Pas.e 4 of f> The given Saw requires the court in which the objection is pressed to investigate it and upon hearing evidence of the parties make an order thereof. However, the same iaw does not give the way forward in case the judgment objector fails to prove' his ciaim. It is unlike the objection proceedings filed in the district court or courts of resident magistrates or this court whereby Order XXI Rules 57 up to 62 of the Civil Procedure Code [Cap.33 R.E. 2019], application for objection proceedings is a remedy available to a person whose property has been wrongly attached in execution of a decree to which he was not a party thereto, Indeed, this is the way of challenging a decree or judgment. I am holding so because under Rule 62 to Order XXI of the CPC if the claim to the property attached is disallowed the remedy is to institute a fresh suit and not to prefer an appeal or revision as it is in the case at hand. It provides thus: ‘’Where- a claim or an objection is preferred, rhe party against j: "to whom an order is made may institute a suit to establish the ■ ■ right which he claims to the property in dispute, but, subject to the result of such suit, ifany, the order shall be conclusive." ■ ; Under rule 62 above, the decisions of the court under rules 57 to 60 are final and. not appealable. The

position was insisted in Thomas Joseph Kimaro v Apaisaria Martin Cart Mkumbo and Oscar Carl Mushi [2002] T.L.R 369. Pursuant to the prayer by the appellant and support from the first and third respondents and the authorities relied herein above, I do hereby mark the PC CIVIL APPEAL NO. 13 OF 2023 withdrawn at the instance of appellant who wishes to file a fresh suit. Page 5 cf 6 21.09,202.3 COURT: This Ruling is delivered under my hand and the seal of this Court on this 2.1st day of September 2023 in the presence of Mr. Emmanuel Ngongi, learned Advocate for appellant while the first and third respondents have appeared in person and unrepresented and in absence of the second respondent. 21.09.2023