SIGNED RULING ARTHUR DALLAS SEME CASE 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 022634 OF 2024 ARTHUR DALLAS SEME ……………………………………………………APPLICANT VERSUS INTERNATIONAL COMMERCIAL BANK (TANZANIA) LIMITED…………………………………………1ST RESPONDENT INVESTMENT HOUSE LIMITED ……………………………………..2ND RESPONDENT INVESTMENT HOUSE LIMITED – KENYA ……………………..… 3RD RESPONDENT SALUTARY TUMAINI ORIO ……………………………….....………4TH RESPONDENT ALEX CHEGE WAITUKA ………………………………………..….….5TH RESPONDENT CHARLES WAITUKA ………………………………………...…….…..6TH RESPONDENT RULING Date of Last Order: 22/10/2024 Date of Ruling: 22/11/2024 GONZI, J. The Applicant filed this application under section 47(1), (2), (3) and section (95) of the Civil Procedure Code [CAP 33 R.E 2019] praying for Orders that: 1 EX-PARTE 1. That, this Honourable Court may be pleased to order and release the Applicant from jail as a Civil Prisoner on the ground of serious illness, pending inter parties hearing of this Application. 2. Any other relief this honourable Court may deem fit and just to grant. INTER PARTIES 1. That, this Honourable Court may be pleased to order and release the Applicant from jail as a Civil Prisoner tin the ground of serious illness, pending inter parties hearing of this Application. 2. Any other relief’ this I honourable Court may deem fit and just to grant. The application is supported by an affidavit of Arthur Dallas Seme, the Applicant. The 1st Respondent is resisting the application and has filed a counter affidavit of Bahati Makamba, principal officer of the 1st Respondent. 2 The rest of the Respondents despite being served have neither filed counter affidavits nor appeared to resist the application. In his affidavit in support of the application, Mr. Arthur Dallas Seme stated that in consideration of the granting of the overdraft facilities by the 1st Respondent to the 2nd Respondent, and as security to secure the repayment of the overdraft amount granted by the 1st respondent to the 2nd Respondent and in 1st respondent’s fulfillment of the terms and conditions of the overdraft agreements and in accordance to the terms thereof, the 1st Respondent executed a joint and several guarantee by the Applicant and the 4th Respondent dated 20/12/2013 which were registered on 24/12/2013. He added that the 2nd Respondent defaulted to repay the whole overdrawn amount as agreed and acting pursuant to the terms and conditions of the overdraft facility letter, the 1st Respondent demanded repayment with accrued interest, costs and expenses. The Applicant, second, third, fourth and fifth Respondents failed to repay the overdraft amount the 1st Respondent instituted Commercial Case No. 12 of 2020 against the Applicant and the other Respondents herein for payment of the outstanding amount of TZS 105,315,995.39 (Tanzania Shillings One Hundred Five Million, Three Hundred fifteen Thousand, Nine Hundred Ninety Five and Thirty Nine Cent 3 Only).Later on parties decided to settle the matter out of Court and a Deed of Settlement was filed in court where the Applicant agreed to pay USD 54,432 and interest thereto as a Guarantor. On 1st September 2022 the 1st Respondent instituted Execution Proceedings against the Applicant via Commercial Case No. 12 of 2020, and applied for arrest and detention in prison of the Applicant for failure to obey the Decree and Drawn Order of the Deed of Settlement. on 19th day of February 2024 Hon Agatho.J ordered the Applicant to be imprisoned as a civil prisoner for a period not exceeding six months or until the said Decree shall be fully satisfied, or the Applicant herein shall be otherwise entitled to be released according to terms and conditions as the Court shall deem fit. The Applicant was committed to prison in August 2024. After having stayed for 3 months in jail as a civil prisoner, the Applicant is now praying to be released therefrom. The ground for release is sickness. He stated that he was diagnosed of severe and progressive illness named cervical spondylosis, which affects his cervical spine and he has been attending Muhimbili Orthopaedic Institute (MOI) since 2014 for treatment which significantly impairs his ability to move and perform daily activities. He 4 attached a Copy of the cervical Spine MRI Report as annexure ADS- 8 to form part of his Affidavit”. He stated further that since 2014 till to date he is supposed to attend physiotherapy treatments at Muhimbili Orthopaedic Institute (MOI). He attached copies of Medical reports and credit receipts as annexure ADS-9 to his Affidavit. he pleaded that if he will continue to stay in prison his health will be in danger due to lack of proper Orthopaedic medical care which requires frequent specialized medical treatment, that cannot be adequately provided within the confines of the prison. In the counter affidavit of Bahati Makamba, principal officer of the 1st Respondent, he stated that the order to be imprisoned was not dated 19.02.2024 as alleged by the Applicant. He added that the health concerns raised in the affidavit are an afterthought following the confinement order. He added that if at all the Applicant was as severely sick as he claims since 2014, the Applicant should have raised the allegation of illness well before the court order was handed down. Prior to the confinement order, there was never a mention of such illness. Bringing it up now is simply an afterthought. Mr.Makamba stated that there is no record of severe illness as the Applicant claims and whether treatment within confinement has been 5 sought and that the same is not available. In particular, there is no record that the prison’s hospital or its medical practitioner have been consulted and failed to handle his case for him to continue with imprisonment. Hearing of the application proceeded was done by way of written submissions. The Applicant was represented by Mr.Patrick Sanga, Learned Advocate while the 1st Respondent was represented by Mr. Shukrani Mzikila, Learned Advocate. I thank both learned counsel for their insightful arguments. Mr Sanga, submitted that this application for release of a civil prisoner on grounds of illness, is premised under Section 47(1) (2) (3) and section (95) of the Civil Procedure Code [CAP 33 R.E. 2019], which provides that: 47 (1) At any time after a warrant for the arrest of a judgment debtor has been issued, the court may cancel it on the ground of his serious illness. (2) Where a judgment debtor has been arrested, the court may release him if in its opinion he is not in a fit state of health to be detained as a civil prisoner. 6 (3) Where a judgment debtor has been committed as a civil prisoner, he may be released- (a) by the officer in charge of the prison in which he is confined, on the ground of the existence of any infectious or contagious disease; or (b) by the committing court, or any court to which that court is subordinate, on the ground of his suffering from any serious illness. Mr. Sanga submitted that the import and spirit of section 47 (1) (2) and (3) is that this Honourable Court is vested with discretionary power to release the Applicant from jail, if the state of his health as a civil prisoner is not fit and stable for him to survive in prison. He substantiated that the Applicant in this Application is suffering from cervical spondylosis which affects his cervical spine and impairs his ability to move and perform his daily activities. He added that the Applicant has been attending Muhimbili Orthopaedic Institute (MOI) for treatment since 2014 up to the date when he was imprisoned. He submitted therefore that the Applicant’s condition and health is not in a fit state for him to stay in prison because the cervical spondylosis affects the spinal disks in the neck as the disk dehydrates and shrinks which results in the narrowing of the spinal canal within the bones of the spine. If 7 the spinal cord or nerve roots becomes pinched it results to tingling, numbness and weakness in the arms, hands, legs or feet, lack of coordination and difficulty in walking, loss of bladder or bowel control. He therefore pleaded with the Court to invoke its power under section 47(2) of the Civil Procedure Code and release the Applicant from jail as a civil prisoner on grounds of illness. Mr.Patrick Sanga, Learned Advocatem, submitted that if the Applicant will continue to stay in prison while his health is not fit and stable his right to life, which is a Constitutional right as enshrined under art (14) of the Constitution of the United Republic of Tanzania, 1977, will be deprived. Mr.Sanga, Learned Advocate, submitted that since the Applicant has been imprisoned to jail as a civil prisoner, the treatments which he was attaining at MOI have stopped which makes his health to deteriorate and his health is in great danger due to lack of proper orthopaedic medical care, which requires frequent specialized medical treatment that cannot be adequately provided within the confines of the prison. The respondent strongly opposed the application. Mr. Mzikila submitted that the Applicant has tried to convince the court and annexed to his application 8 some medical reports whose authenticity has not been depicted and leave a lot to be desired. He argued that the issue of illness is a matter of expertise and it was expected that an Affidavit of the Medical practitioner who is attending the Applicant should have been sworn in support of the allegations raised by the Applicant in his application. He submitted that the court has received only the Applicant’s opinion through his affidavit that he cannot stay in prison. There is no medical confirmation either coming from the Keko prison hospital or Muhimbili Hospital that the Applicant cannot withstand to stay in prison. He submitted that allowing this application will only open a Pandora ’s Box for any civil prisoner to just raise the ground of illness and want to be released from the prison. He added that there is no evidence in the application or submissions which shows that his disease is contagious or infectious hence the same is not dangerous to anyone around the prison. Mr. Mzikila submitted that there is no evidence to show that Applicant has been attending clinic of his illlness. He submitted that there should have been a letter or actual report from Muhimbili hospital recommending that the Applicant is to attend or is undergo the clinic every week. He submitted that there is lack of the evidence to indicate the clinic attendance has been done since 2014. 9 Mr,Mzikila, Learned Advocate, submitted that, this Honourable court in entertaining the execution application and after finding out that the applicant has failed to show cause, it satisfied itself that the applicant is fit and should be imprisoned as a civil prisoner. Under such circumstances, for this Honourable Court to depart from its previous order, there should be independent evidence, such as an affidavit from the prisons’ management, or prisons’ medical officer or Muhimbili hospital medical officer indicating that the Applicant is unable to serve his term of imprisonment as was ordered by this court. He added that the annexed medical reports leave a lot to be desired as the same was supposed to be surfaced/indicated during the time to show cause, provided and as indicated by Applicant, his disease started since 2014. Thus, he argued, the present application has no merits at all. He submitted that the Applicant in his application and submissions has not stated anywhere how he is going to make sure that the 1st Respondent is going to be repaid its monies that he is still indebted to the 1st Respondent. Mr. Mzikilla submitted that should this Court find merits in the application, then strict condition be imposed upon the Applicant to make sure that, the efforts already made by the 1st Respondent should not be in vain. He 10 concluded by praying that the Applicant’s Application be dismissed with costs. By way of rejoinder, Mr. Sanga, submitted that the Applicant is the right person to state about his health from the first day he got illness up to now. In the Applicant’s affidavit in paragraph 6, the Applicant states that “I was diagnosed with severe and progressive illness named cervical spondylosis which affects his cervical spine and I have been attending to Muhimbili Orthopaedic Institute (MOI) since 2014 for treatment which significantly impairs my ability to move and perform daily activities”. He argued that the above cited paragraph proves that the Applicant was diagnosed by a medical doctor and he has annexed the Cervical Spine MRI report which proves that the Applicant has a progressive illness. The medical reports and medical receipts which are attached in the Applicant’s affidavit prove that the Applicant has been attending treatment and specialized physiotherapy at MOI. On failure by the Applicant to provide evidence to substantiate the allegations of clinical attendance since 2014, Mr.Sanga submitted that these allegations are not true and the 1st Respondent is being misconceived since 11 in the Applicant’s Affidavit the Applicant has attached the receipts and diagnosis form which shows that the Applicant has been attending treatment and physiotherapy at MOI as seen in annexure ADS-9 of the Applicant’s Affidavit. On the argument that the Applicant has not stated anywhere on how he is going to make sure that the 1st Respondent is going to be repaid its monies that is still indebted to the 1st Respondent, Mr Sanga submitted that it is not in dispute that the Applicant is indebted to the 1st respondent to the tune of USD 54,432. The Applicant is still writing to repay the debt despite the fact that he is imprisoned at the moment. He joined hands with the reply submission of the 1st respondent in paragraph 2 of page 3 that:- “more so, should this court finds merits in Applicant’s Application then strict condition be imposed upon the Applicant to make sure that, the efforts already made by the 1st respondent should not be in vain”. Mr Sanga submitted that if the Applicant will be released from jail the efforts already made by the 1st Respondent will not be in vain, because the 12 Applicant has a good motive of repaying back the monies that he is still indebted to the 1st Respondent. The application at hand was brought under Section 47(1) (2) (3) and section 95 of the Civil Procedure Code [CAP 33 R.E. 2019]. Whereas section 95 is on inherent powers of the Court to ensure that ends of justice are not defeated, the specific provisions applicable to the present application is section 47 of the Civil Procedure Code. It provides: 47.-(1) At any time after a warrant for the arrest of a judgment debtor has been issued, the court may cancel it on the ground of his serious illness. (2) Where a judgment debtor has been arrested, the court may release him if in its opinion he is not in a fit state of health to be detained as a civil prisoner. (3) Where a judgment debtor has been committed as a civil prisoner, he may be released- (a) by the officer in charge of the prison in which he is confined, on the ground of the existence of any infectious or contagious disease; or 13 (b) by the committing court, or any court to which that court is subordinate, on the ground of his suffering from any serious illness. (4) A judgment debtor released under this section may be re-arrested but the period of his detention as a civil prisoner shall not in the aggregate exceed that prescribed by section 46. In the case at hand, the Applicant has been committed to prison by this court as the executing court in the execution of the decree in Commercial Case No.12 of 2020. Therefore the relevant provisions of section 47 are the ones contained in 47(3) (a) and (b). Under those provisions a judgment debtor who has been committed as a civil prisoner, may be released either by the officer in charge of the prison in which he is confined, on the ground of the existence of any infectious or contagious disease; or by the committing court, or any court to which that court is subordinate, on the ground of his suffering from any serious illness. As the application is brought to court, section 47(3)(b) is the one that applies. Under section 47(3)(b) of the Civil Procedure Code, CAP 33 of the Laws of Tanzania a judgment debtor who has been committed as a civil prisoner, may be released by the committing court, or any court subordinate to the 14 committing court, on the ground of his suffering from any serious illness. The application can therefore be made to and the released order can be issued by this court itself as the one that committed the applicant as a civil prisoner or any court that is subordinate to this court. That is to say a Court of Resident Magistrate, the District Court or the Primary Court with the requisite territorial jurisdiction could hear and determine the application. It is not an application to vary or quash the order of the committing court that ordered the committal of the Judgment debtor as a civil prisoner. It is an application for release of the judgment debtor from prison. Since it is not an application that has any effect to the initial order that had committed the Judgment Debtor as a civil prisoner in the first place, that is why even a court subordinate to the one that passed the order of committing a person as a civil prisoner can hear and determine the application for release of the judgment debtor from prison where he was committed as a civil prisoner. Further the release could be ordered by the officer in charge of the prison in which the Judgment Debtor is confined, on the ground of the existence of any infectious or contagious disease. It is correct therefore to say that an application for release of a judgment debtor from prison is a separate and independent process entirely not connected to the initial application for 15 committing the judgment debtor as a civil prisoner which could only be done by the executing court. It is to be noted that even the legal provisions and the necessary preconditions governing committal of the judgment debtor as a civil prisoner differ from those regulating his release therefrom. Arrest and detention of a judgment debtor as a civil prisoner is done by the executing court in terms of Section 44 read together with Order XXI Rules 35 to 39 of the Civil Procedure Code. The Court of Appeal of Tanzania held in Grand Alliance Ltd vs Mr. Wilfred Lucas Tarimo & Others (Civil Application 187 of 2019) [2020] TZCA 191 (21 April 2020) that: It follows then that the imprisonment of a judgment- debtor in execution cannot be ordered unless the conditions and limitations are satisfied. One of those conditions is that there must be an application for execution of a decree for payment of money by arrest and detention in prison of a judgment-debtor (See sections 42 and 44 and Order XXI rule 10 of the Code). After receipt of the application, the executing court has discretion to issue a notice to show cause to the person against whom execution is sought, on a date to be specified in the notice, why he should not be committed to prison or to issue a warrant of his arrest (see Order XXI rule 35 (1) of the Code). 16 The purpose of this warrant is to bring the judgment- debtor before the executing court and it is not an automatic order for committal as civil prisoner because the executing court is required to be satisfied with the conditions stated under Order XXI rule 39 (2) of the Code before committing a person to prison… the executing court has to satisfy itself as to whether the conditions mentioned under Order XXI rule 39 (2) exist or not. Order XXI rule 39 (2) provides: "Before making an order under sub rule (1), the court may take into consideration any allegation of the decree holder touching any of the following matters, namely:- (a) A decree being for a sum for which the judgment- debtor was bound in any fiduciary capacity to account; (b) The transfer, concealment or removal by the judgment debtor of any part of his property after the date of the institution of the suit in which the decree was passed, or the commission by him after that date of any other act of bad faith in relation to his property, with the object or effect of obstructing or delaying the decree-holder in the execution of the decree; 17 (c) Any undue preference given by the judgment- debtor to any of his other creditors; (d) Refusal or neglect on the part of the judgment- debtor to pay the amount of the decree or some part thereof when he has,; or since the date of the decree has had\ the means of paying it; (e) The likelihood of the judgment-debtor absconding or leaving the jurisdiction of the court with the object or effect of obstructing or delaying the decree-holder in the execution of the decree." The release of the Judgment Debtor from prison is regulated by sections 46 and 47 of the Civil Procedure Code. Notably, reading through the provisions of the relevant law, it is obvious that committing of judgment debtor as a civil prisoner is relatively a more difficult process with so many preconditions to be satisfied and procedural safeguards in place in favour of the judgment debtor. Only the executing court may commit the judgment debtor as a civil prisoner. On the other hand, however, securing the release of a judgment debtor from prison is not as difficult a process as securing his committal to prison. He may be released therefrom by either officer in charge of the prison in which the Judgment Debtor is confined, on the ground of the 18 existence of any infectious or contagious disease or by the Court on the ground of his suffering from any serious illness. In making the release of a judgment debtor from the prison easier, the law allows the committing court itself to order his release or even courts subordinate to it. That is the law on arrest and detention of a judgment debtor as a civil prisoner in execution of the decree. The detained Judgment Debtor is not a criminal convict with a definite term to serve in prison. He may be released from prison anytime under different circumstances and by different authorities, judicial and non- judicial alike. The Court of Appeal of Tanzania held in Grand Alliance Ltd vs Mr. Wilfred Lucas Tarimo & Others (Civil Application 187 of 2019) [2020] TZCA 191 (21 April 2020) that: “the object of arrest and detention is to ensure the decree-holder realises the money decreed in his favour and to protect honest judgment-debtors but dishonest ones becomes liable to arrest and imprisonment. Mulla on the Code of Civil Procedure {supra) at page 724 has rightly put that:- "The object of detaining a judgment debtor in a civil prison is not to punish him for any crime but for enabling the decree holder to realise the moneys decreed in his favour, and for the purpose of 19 achieving this alone, the conditions in the proviso have been formulated. It is some contumacious conduct on the part of the judgment debtor and not mere inability to pay, which renders him liable to be arrested." The present application has been made to this court as the committing court that initially ordered the committal of the judgment debtor as a civil prisoner. The law under section 47(3)(b) stipulates only one ground for the application for release by the committing court or any court subordinate to it, of a judgment debtor committed as a civil prisoner, namely the ground of his suffering from any serious illness. There are no other attendant conditions or preconditions attached to his release if he satisfies that ground. The pertinent question in the present application, therefore, is whether the applicant has proved that he is suffering from any serious illness as to warranty his being released from prison where he was committed as a civil prisoner by this court? The Applicant’s affidavit portrays the following factual basis for the application on serious illness. a. Cervical Spine MRI Report by Dr.Mechris Mango (MD.MMed) Specialist Radiologist of Besta Diagnostic Center of Dar es salaam dated 6th January 2014. It has a conclusion of: 20 (ii) “Protruded C4-C5 & C5-C6 discs causing indentation on cord”. The MRI report is attached as annexture ADS 8 to the affidavit. (iii) Multiplanar multiecho MRI of the cervical spine report by Hitec Sai Health Center of Dar es salaam dated 1st July 2023 signed by Dr. Asheesh Vali MBBS, DMRD, DNB, FRCR|UK) Consultant Radiologist and Dr. Sarita Vali MBBS, MD Consultant Radiologist. The report concludes thus: “cervical spondylosis. Suggested. Clinical correlation and follow up.” The Multiplanar multiecho MRI report is attached as annexture ADS 9 to the affidavit. In addition, annexture ADS 9 to the affidavit also contains the following documents related to medical status and treatment of the Applicant. (iv) Claim Form submitted to Strategis Insurance dated 9th March 2023 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (v) Claim Form submitted to Strategis Insurance dated 17th March 2023 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (vi) A print-out of electronically generated Outpatient Credit Receipt issued to the Applicant by Muhimbili Orthopaedic Institute on 17th July 2023 21 for physiotherapy. (vii) (vi)Claim Form submitted to Strategis Insurance dated 15th June 2024 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (viii) Stamped and signed Medical Prescription Form issued by Muhimbili Orthopaedic Institute on 16th June 2024. (ix) Claim Form submitted to Strategis Insurance dated 14th June 2024 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (x) e-Medical Invoice issued on 15th June 2024 at 10:11hrs to Strategis Insurance issued by Muhimbili Orthopaedic Institute for physiotherapy services in favour of the Applicant at Muhimbili National Hospital. (xi) Claim Form submitted to Strategis Insurance dated 13th June 2024 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (xii) e-Medical Invoice issued on 14th June 2024 at 10:11hrs to Strategis Insurance issued by Muhimbili Orthopaedic Institute 2024 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (xiii) Claim Form from Strategis Insurance dated 28th June 2023 for 22 physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (xiv) Outpatient Credit Receipt issued to the Applicant by MOI on 28th July 2023 at 08:34 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (xv) Claim Form from Strategis Insurance dated 24th July 2023 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (xvi) Outpatient Credit Receipt issued to the Applicant by MOI on 24th July 2023 at 09:04 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital . (xvii) Claim Form submitted to Strategis Insurance dated 22nd June 2024 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital . (xviii) (xvii) Medical Consultation Bill issued to the Applicant by MOI on 13 June 2024 at 14:59 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (xix) Claim Form submitted to Strategis Insurance dated 28th July 2023for physiotherapy services in favour of the Applicant at MOI in Muhimbili 23 National Hospital. (xx) Medical Consultation Bill issued to the Applicant by MOI on Hospital 28 June 2024 09:29 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital. (xxi) (xx) Claim Form submitted to Strategis Insurance dated 26th June 2024 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National Hospital . (xxii) Medical Consultation Bill issued to the Applicant by MOI on Hospital 26 June 2024 at 09:01 for physiotherapy services in favour of the Applicant at MOI in Muhimbili National. The Respondent’s counsel has submitted that the above stated medical reports are an afterthought and leave a lot to be desired as the same was supposed to be surfaced/indicated during the time to show cause, provided and as indicated by Applicant, his disease started since 2014. The pertinent question is why the 1st Respondent in his counter affidavit didn’t bring a contradictory expert report from the different institutions whose medical reports were relied upon by the Applicant. The 1st Respondent had ample time to present the copies of the reports attached to the affidavit for verification with the respective offices. Equally, the 1st Respondent could 24 have taken the copies to the respective law enforcement agencies and bring a report in the counter affidavit showing that the same are not genuine. The 1st Respondent did not do so. Whereas he downsized the medical reports as a mere opinion by the Applicant, the Respondent actually with bare words purported to contradict the attached medical reports. It is not true that the medical reports are all of 2014 some medical report as current as June 2024. The fact that some of the medical report are dated way back in 2014 and others date back to the period before the applicant was committed to prison and thus none of them was made after his being committed as civil prisoner, defeats the argument by Mr.Mzikilla, that the reports are an afterthought. If they had been made after the applicant’s committed as a civil prisoner, probably the argument by Mr.Mzikilla could be reasonable though not conclusive. The fact that none of the medical reports attached was made after the Applicant was committed to prison as a civil prisoner, cements the Applicant’s plea that due to the confinement, he is now unable to attend the medical treatment regularly and conveniently which endangers his health and life. The argument that the medical report were not shown at the time of hearing of the application for showing cause as to why the applicant should not have been committed as a civil prisoner, does not hold water. As 25 depicted above, the legal considerations and pre conditions for committing a judgment debtor as a civil prisoner under Order XXI Rule 39 of the CPC are different from the ones regulating his release from prison under section 47(3) (a) and (b) of the CPC. Furthermore, I find the fact that the medical ground was not advanced during the determination of the application when the Applicant was called to show cause why he should not have been committed as a civil prisoner, justifies the same court to consider those arguments for the first time now. I accept the medical report as genuine and relevant to the case at hand. What remains to be answered is whether, on the basis of the attached medical reports, the Applicant has proved that he is suffering from a serious illness in terms of section 47(3)b) of the CPC? Since there is no current medical report supporting the application at hand, can it be said that there is proof that the Applicant is actually currently seriously ill? The affidavit of the Applicant says that the illness he was diagnosed of in 2014 is a long term illness whose treatment includes attending physiotherapy. The 1st Respondent in the counter affidavit has not brought evidence to negate this fact that cervical-spondylosis is a long term serious illness that requires continued regular attendance to physiotherapy. The 1st Respondent has argued that the Applicant can be treated at the 26 Prisons medical facility and that there is no expert report that he could not be properly treated in prison where he is being detained as civil prisoner. This argument does not appreciate the true nature of a civil prisoner. He is not a prisoner of the state but of the Decree holder. The costs of maintenance and subsistence of the civil prisoner in the prison is borne by the Decree holder. Section 38 (2) of the Civil Procedure Code where a judgment debtor is committed to prison in execution of a decree, the court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed under section 45 or, where no such scales have been fixed, as it considers sufficient with reference to the class to which he belongs. The medical reports relied upon by the Applicant show that according to the class which he belongs, his treatment especially the physiotherapy is done at Muhimbili National Hospital and the medical Bills are covered by Strategis insurance. The 1st Respondent in seeking the court to commit the Applicant as a civil prisoner cannot choose for him the Prisons Health Facility in lieue of those of Muhimbili National Hospital where the Applicant has been attending regularly. That is his class. I expected to see a commitment in the counter affidavit of the 1st Respondent that it is ready to top up the subsistence allowance so as to ensure that the Applicant receives 27 the medical attention according to the class he belongs, but that was not forthcoming. The 1st Respondent has not even stated whether he pays for the medical services of the Prison Health facility where the Applicant is held as a civil prisoner of the 1st Respondent. I am of the view that the medical services of Muhimbili National Hospital are not of the same class like those of the Prison facility wherein the Applicant is being held. Is the Applicant’s illness serious as to warranty his being released from civil imprisonment by the committing court? The illness that the Applicant has relied upon in this application is described in simple terms in an online presentation published by a medical institution via www.hopkinsmedicine.org/health/conditions-and-diseases/cervical- spondylosis. The work shows the following to be the symptoms of Cervical spondylosis: pain in the neck that may travel to one’s arms or shoulders; headaches; a grinding feeling when one moves his neck; weakness in the arms and legs; numbness in the shoulders, arms, or hands; stiffness in the neck; trouble keeping one’s balance; trouble controlling one’s bladder or bowels. Is that kind of an illness serious? In my view an illness that causes all or some of the enumerated symptoms is a serious illness. If a person is unable to control his bladder or bowels due to illness and is still to be 28 confined to prison as a civil prisoner despite the existence of section 47(3)(b) of the CPC, then I cannot contemplate worst case where the provision could be resorted to other than death of the Judgment Debtor. That would defeat any sense of justice given that the object of detaining a judgment debtor in a civil prison is not to punish him for any crime but for enabling the decree holder to realise the moneys decreed in his favour.in addition to the decision of the Court of Appeal in Grand Alliance Ltd vs Mr. Wilfred Lucas Tarimo & Others (supra) I am further inspired by the words of Angelo Rumisha, then as the Deputy Registrar, High Court of Tanzania and a PhD Student at St. Augustine University of Tanzania in 2020, in his article titled: “Arrest and Detention in Execution of a Decree in Tanzania: Salient Issues, Law and Practice” published in the Journal Of Legal Studies and Research-An Open Access Journal from The Law Brigade (Publishing) Group, where he correctly observes that: “Arrest and detention of the Judgement Debtor in the execution of a decree is different from a criminal prisoner. While a criminal prisoner remains serving his sentence even if he falls ill, however a civil prisoner has to be released from detention if he falls sick. Indeed, before commitment to prisons, the court 29 may cancel the warrant on the ground of Judgement Debtor’s serious illness, or if in the opinion of the Court he is not in a fit state of health to be detained as a civil prisoner.” Taking cue from the foregoing statement, I find that the application at hand has merit and I proceed to grant the same with no order as to costs since the Respondent bonafidely resisted the application in the understanding that it is part and parcel of her efforts to have the decree passed executed. The Learned Counsel for the 1st Respondent has submitted that some strict conditions should be imposed by the Court if the Applicant is to be released from prison so as to ensure that the decretal sum is paid. The Applicant has committed himself to honouring the decree with a view to settle it upon being released. Whereas I find the commitment as a good gesture, it is not among the factors for consideration by the court in releasing a judgment debtor from prison on the ground of serious illness. The Applicant should know that the 1st Respondent still may have recourse to section 46 of the Civil Procedure Code and many other avenues to execute the decree passed in favour of the 1st Respondent. In the upshot the application succeeds, I do hereby order for the immediate release of the Applicant Arthur Dallas Seme 30 from prison where he is held as a civil prisoner in relation to execution of the decree of this court in Commercial Case No. 12 of 2020. It is so ordered. A.H.GONZI JUDGE 22/11/2024 Ruling is delivered in court this 22nd day of November 2024 before Honourable H.H.Nkya, Ag Deputy Registrar in the presence of Advocate Miriam Moses for the Applicant and Shukrani Mzikila Advocate for the 1st Respondent. H. H. NKYA Ag DEPUTY REGISTRAR 22/11/2024 31