a w moshi vs edson j s mkisi 2003 tzhc 61 2 march 2003

IK THU HIGH COURT OF TANZANIA

A T PAR E S SALAAM CIVIL CA; .E NO. 2 OF 1999

AKER OMAR SALHH MULTI C a n y , AUTO PACTS €0. LTD . . PLAIKTIFFS Versus SALEH M O M i E D ALLY . . . . . .... DEFENDANTS .5 ’J L I H G Kyandot J- This is an application for the following:- Ca) That this court m y investigate the propriety or otherwise, of the attachment of motor vehicle Toyota Land Cruiser Re,-. No. TZH 6055 Station vfegonj A? (b) That this court be pleased to make an order that motor vehicle Toyota land Cruiser Reg. No. 6055 Station Wagon is not liable to attachment in execution of a decree passed against the third respondent to this application. ( O H a t this court nay make an order residing the Warrant Of Attachment dated ?th June, 2001 , issued for the attachment of motor vehicle Toyota land Cruiser Reg. No. TZH 6055 Station Ujgon. (d) That costs of this application be provided for. The background to the application that on 16/ 8/99 this court made an order e n d o w i n g the settlement of the suit between the plaintiffs and the defendants, & l c h . H t o e d % s por the terms ° CO"Sent 0rder filed to***-. execution proceeding, commenced. The judgment debtor, galejie Mehamed Ally had at one st,re “ thOSB proceed“ SS to be sent to a civil prison, totvr the „otor ' ve icle, the subject of this application, was attached in execution o the decree in the suit. This application, for the mstters set out above, has then been lodged with this court. • • »/2 In

the affidavits in support of the application it is stated that thG Wife of the M g m e n t debtor F a j t ^ ^ ^ ^ a l e h had arranged to pledge the motor vehicle to Faridi Karans, the Applicant herein, for shs.20 ,000 ,000/r- as maintenance while the Judgment debtor was m civil prison. Both & l e h and her hucband, the judgment debtor, bacK the applicant in these claims in their affidavits. It is contended iirthe application that the vehicle is not liable to attachment. * The first and second respondents, who were the plaintiffs and are now the decree holders, vigorously oppose the application.. They hint, in their counter affidavit and submissions, that the arrangements between the judgment debtor's wife and the applicant could have been a device to evade execution against the motor vehicle. They pray therefore for dismissal of the application. Both sides are represented. She respondent is represented by Ms Ismail & Co., Advocates and the applicant by Mr. Lebba, Advocate. (This is rather Curious because Kr. Lebba also represents the judgment debtor). Counsel have filed written submissions. Looking at the ratter as whole, I feel that I must accept the respondents stand point. The whole arrangement between the judgment debtors' wife, backed up as it was by the judgment debtor himself, as he owns up in his'counter affidavit**, and Faridi Karens is overlaid with and snacks of a

scheme to evade attachment of the vehicle. This is because the decree passed against the judgment debtor was passed way back, as shown, in 1999 . So by 2000 or 2001, arrangements to dispose of the judgment debtor's properties must be considered to have been arrangements to forestal execution of the decree by attachment of that property. This is an inescapable conclusion to draw in the circumstances of this matter. I refuse therefore to grant this application, which I dismiss with costs. fj 4■ ( I^A.A/ Kyando

JUDGE in D°llTOTed tMS l8th dny of 2002, at Dar „ Sola “ ‘ Presence ° f * • ™ aib f- «» «•*»!«* and in the absence of the applicant whose c o m m , ! was dully notified. Ji / ' / $ j i ( (-1/'L<-> A"i Iji.A .a J KygncJ0

JUDGE 16/1/2002