siani said nassoro vs reyai masingisa others 2002 tzhc 2010 8 march 2002

IN TFI3 HIGH COURT OF TANZANIA CIVIL CASK NO,361 OF 2000 SIAIjI SAID NASSORO ..........., PLAINTIFF Versus 1.REYAI MA.S3B3ISA. rvjPirn'pTiTTi Mrnr- 2.SANGAU MADAMANYA .............. ............. A i\' 0 xj-IoiiijGASI KlrjiiIRO osooffocourfoo OiiJSC'i’OS/AFjr'LICANT' KIM AUCTION MART AND COURT B-lOKfift ......... AUCTIONS.! KYANDO, J Inis is another lime of tne ruling which J. have just delivered today concerning oangau Madaiiianya, who was the second defendant in the suit from which these proceedings arise. The proceedings are objection proceedings. Hie suit involved Sangau Madanianya as the second defendant and Reyai ^.vsingisa as the first defendant. They are both Kasai herdsmen who reside in Dakawa, tforogoro Region. In the suit they were sued for damages for slashing off the plaintiff's arm when he found their cattle grazing in his shamba. They did not appear for the hearing of the suit and so it proceeded ac parte. At the conclusion ox the trial an ex-parte judgment was entered against the two defendants and following the judgment an ex;partedecree wan passed. The plaintiff then obtained an order frora thin Court to attach 1 ,0 0 0 head of cattle in execution of the decree. He vent and attached the cattle which are now the subject matter of these proceedings. Kisangasi Kisairo, the Objector, contends in his affidavits that the attached cattle did not belong to the first defendant/ judgment debtor, but they belonged to him (Kisangasi). He prays therefore for their release. "n ^ne counter affidavit Constantine M. Shilogile, who runs Mim Auction Nart and Court Brokers, which executed the decree, states in paras 3, if, 8 and 9 in so far as they are pertinent H3. ..... . it is true that we seized the cattle as ordered by the ^ourt but they did not belong to the applicant but belonged to tbe judgment debtor Riyayi Kasingisa. ....... When the decree holde.* pointed to us the judgment debtor’s cattle (RIYAYI MASING.Ja ) whi<* we seized the ~ 2 - ajplicant was present, and he supported the decree holder that the cattle belonged to Heyayi and not the applicant. S f e ^ I ferenCe faragraph 3 of the Counter-affidavit, ,W° SeiZe° belon^ d to 5®yayi Ifesi^isa, chat io why we managed to release 120 cattle at Dtm-ila after .ueyayi had paid for their. Tsho.5,500,000A vide recelpt dated 37.11.2001, ar.d a n o t h e ^ a t t i r L e released ac norogoro to him after he paid 5,000,000/= 8 was lesued v;ltn receipt dated 28.11.P001 in the ' * name of heyayi Masingisa. Copies of such receipts are marked -A- and annexed. .....(as) part counter affidavit. 9° Cat?1!1WGr! Geized the aPPiicant was present, ll-afey authority, including Police, were all that^the c ^ t S f1- x.-at the cattle a0t being heaP were seized thS aPPlicant complainet his, and he did rot bother even to pay for them. In his affidavit in reply the objector, Kisairo, states that tb* dec ^cree holder seized the cattle, of the,, from hi* s t a k i n g hi, for the - , ct judgment deb.or, ‘femgisa. He says he complained to authorities a! out the seizure of the cattle. He says he complained to Mabwegere Village on ^.11..-001 He denies supporting the decree holder in saying that the seized cattle b e l i e d to Reyayi Masingisa, the f irst judgment debtor. He has attached documents s 01 complaint which he says he submitted to the Village Authorities. The objector's Counsel Mr. Hyera, has filed written submissions L o o k i n g at the affidavit evidence fhprp *; v -p x ^ u c n . e a,, ,nere is before me, I am satisfied ^ respondent s evidence is the truthful evidence. It is cogent evidence, t h l r V H ”1 “ 1E’ b5" re“ ipte‘ 1 acoopt therefore this evidence and reject tha of he Objector. On the r e s p o n d e r s evidence, I find and hold that the ca ^ e uere seised in the presence of the objector and he did not object to " “ T " 1 , f “ d “ J h°l d ’ t0° ’ that the «”* < * * «» - “ tie belonged o nt, judgment deocor when they were s e i ^ d rii^ a t ■ . . 4 ° *13-° denials nov/ and his efforts at complainingtoVillage Authnr^i«n ^ _ ft -iuthorioies after tney were seized, are and v/ere just a device on behalf of fieyayi Masin^’-'a fhr, f-: • , . J ^ ln6l°a, tne first ,-judgment debtor, to 6 °attle baCk° 1 dismi8S tbe ob^ctionf with cost-, and hold that the ca„tle were properly attached in execution of the decree passed in the case agamot the defendants/judgment debtors * J i f ' h : <y , ( , 'L.,'/.A. ^anjdo " JUDGE__— -■ Delivered this 8th day of March, 2002 'in Court, at ifer es Salaat,, in the presence of Mr. Hyera for the Objector and t£e respondent ,,ho appears in person, *J '' /‘ oil«&YA; ■i ■'TTDGE