amer omar saeh vs saleh mohamed ally 2002 tzhc 2029 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 U L I N G This is an application for the following:« (a) That this court may investigate the propriety or otherwise, of the attachment of motor vehicle Toyota Land Cruiser Reg# No. TZH 6055 Station Wagon; (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, (c) That this court may make an order rescdding the '.'arrant of Attachment dated ?th June, 2001, issued for the attachment of motor vehicle Toyota Land Cruiser Reg. No, TZH 6055 Station Wagon* (d) That costs of this application be provided for* The background to the application that on 16/8/99 this court made an order endo.jeing the settlement of the suit between the plaintiffs and the defendants, Saleh Mohamed Ally "as per the terms of consent settlement order filed herein*1. Then execution proceedings commenced. The judgment debtor, Splehe Mohamed Ally had at one stage i n those proceedings to be sent to a civil prison. Iirt'er the motor vehicle, the subject of this application, was attached in execution of the decree in the suit. This application, for the matters set out above, has then been lodged with this court. . . «/2 ^In the affidavits in support of the application it is stated that the wife of the judgment debtor Fgtuma w/o ,Saleh had arranged to pledge the motor vehicle to Faridi K a r a t ® , the applicant herein, for a h s ,20,000,000/;- as maintenance while the Judgment debtor was in civil prison. Both and her huaband, the judgment debtor, back the applicant in these claims in their affidavits. It is contended i;r the application that the vehicle is not liable to attachment* The first and second respondents, who were the plaintiffs and are n o w the decree holders, vigorously oppose the application. Ihey hint, m their counter affidavit and submissions, that the arrangements between the judgment d e b t o r ’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. The respondent is represented by Ms Israail & Co., Advocates and the applicant by Mr. L e b b a , Advocate. -.(This is rather cxirious because Mr. Lebba also represents the judgment debtor). Counsel have filed written submissions. Looking at the matter as whole, I feel that I must accept the respondents stand point. The whole arrangement between the judgment d e b t o r s ’ wife, backed up as it was by the judgment debtor himself, a s he owns up in his'counter affidavit*', and Faridi Karana is overlaid with and smacks 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 b e e n 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. 3 Delivered this 16th day of January, 2002, at D ar es SaJaan , in the presence of Dr. 'ftaib for the respondent and in the absence of the applicant whose counsel was dully notified. /i i 'j J > t, r / ... $1i\<- ifL<-; J T O L.A ,Aj Kyando JUDGE 18/1/2002