amer omar saleh vs saleh mohamed ally 2002 tzhc 2008 18 january 2002

IN THU HIGH COURT OF TANZANIA AT PAR BS SALAAM CIVIL CA:.:E NO. 2 OF 1999 AMEH OMAR SALKH MtlLTI CENTRAL AUTO PARTS CO„ LTD . . PLAINTIFFS Versus SALEH MOHAMED A L L Y ........................... DEFENDANTS R UL I N G This is an ap p lication fo r the fo llo w in g : « (a ) That th is court may in vestiga te the propriety or otherwise, o f the attachment o f motor veh icle Toyota Land Cruiser Reg# No. TZH 6055 Station Wagon; (b ) That th is court be pleased to make an order that motor ve h ic le Toyota land Cruiser Reg, No. 6055 Station Wagon i s not lia b le to attachment in execution o f a decree passed against the th ird respondent to th is ap p lica tion , ( c ) That th is court may make an order rescdding the '.'arrant o f Attachment dated ?th June, 2001, issued fo r the attachment o f motor veh icle Toyota Land Cruiser Reg. No, TZH 6055 Station Wagon* (d ) That costs o f th is application be provided fo r* The background to the application that on 16/8/99 th is court made an order endo.jeing the settlement o f the suit between the p la in t i f f s and the defendants, Saleh Mohamed A lly "as per the terms o f consent settlement order f ile d herein*1. Then execution proceedings commenced. The judgment debtor, Splehe Mohamed A lly had at one stage in those proceedings to be sent to a c i v i l prison. Iirt'er the motor v e h ic le , the subject o f th is ap p lica tion , was attached in execution o f the decree in the s u it. This ap p lica tion , fo r the matters set out above, has then been lodged with th is court. . . «/2 ^In the a ffid a v it s in support o f the a p p lica tio n i t i s stated that the w ife o f the judgment debtor Fgtuma w/o ,Saleh had arranged to pledge the motor ve h ic le to F a rid i K a r a t ® , the applicant herein, fo r ahs,20,000,000/;- as maintenance while the Judgment debtor was in c i v i l p rison . Both and her huaband, the judgment debtor, back the applicant in these claims in th e ir a ffid a v it s . I t is contended i ; r the a p p lica tio n that the ve h ic le is not lia b le to attachment* The f i r s t and second respondents, who were the p l a i n t i f f s and are now the decree h olders, vigorou sly oppose the a p p lica tio n . Ihey h in t, m t h e ir counter a ffid a v it and submissions, that the arrangem ents between the judgment debtor’ s w ife and the applicant could have been a device to evade execution against the motor v e h ic le . They pray th e refo re fo r dism issal o f the a p p lica tio n . Both sides are represented. The respondent i s represented by Ms Israail & C o., Advocates and the applicant by Mr. Lebba, Advocate. -.(This i s ra th er cxirious because Mr. Lebba a lso represents the judgment d e b to r). Counsel have f i l e d w ritten submissions. Looking at the matter as whole, I f e e l that I must accept the respondents stand p o in t. The whole arrangement between the judgment deb tors’ w ife , backed up as i t was by the judgment debtor him self, as he owns up in h is'co u n ter a ffid a v it * ', and F a rid i Karana i s o ve rla id with and smacks o f a scheme to evade attachment o f the v e h ic le . 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 o f the judgment d eb to r's p ro p e rtie s must be considered to have been arrangements to fo r e s ta l execution o f the decree by attachment o f that p roperty. This is an inescapable conclusion to draw in the circumstances o f th is matter. I refu se th e refo re to grant th is a p p lica tio n , which I dismiss with co sts. 3 Delivered this 16th day of January, 2002, at Dar es SaJaan , in the presence of Dr. 'ftaib for the respondent and in the absence of the a p plican t whose counsel was d u lly n o t ifie d . /i i 'j J > t, r / ... $1 i\<- ifL<-; J T O L .A ,Aj Kyando JUDGE 18/1/2002