BISENDO 1edited

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM EXECUTION NO.22090 OF 2024 (Originated from Civil Case No. 26205 of 2023) CHARLES ALFRED MARWA...................................................APPLICANT

VERSUS THE SKY HORSE GROUP COMPANY LIMITED…….....1ST RESPONDENT MATHIAS MUGENDI BISENDO..................................2ND RESPONDENT ALLY OTHMA SAMA.................................................. 3RD RESPONDENT FRANK CHRISPIN LIKOTIKO.....................................4TH RESPONDENT 7th & 18th March 2025

RULING MWANGA, J. The applicant in this application seeks the execution of Civil Case No. 26205 of 2023 by way of the arrest and detention of the judgment debtors, the respondents herein, as civil prisoners, under Order XXI, Rule 10 of the Civil Procedure Code, R.E.

2022. Opposing the application, the 3rd respondent had filed an affidavit stating that the applicant had chosen the application for arrest as civil prison, which is the last resort of execution, without applying other modes of execution and satisfying the court that they could not be enforced. The hearing of the application took the form of an oral submission in which Mr. Baraka Nashon, a learned counsel, represented the applicant. 1 Mr. Khalid Mzee and Mr. Fikiri Gabriel, both learned counsels, represented the 2nd and 3rd respondents, respectively. The 4th respondent is absent. In support of the application, Mr. Nashon submitted that in Civil Case No. 27256 of 2023, which was delivered on June 6, 2024, the court decided that the respondents pay the applicants Tshs. 325,867,524.53; Tshs. 50,000,000 general damages and 8% of the total amount from the date of the judgment to the date of the payments and costs of the case. However, to their dismay, the applicant was unable to locate the respondents' attached properties. There are no properties in the respondents' names and no accounts. He submitted that this application seeks the order of arrest and detention of the 3rd and 4th Respondents after they have been issued summonses to appear. He said the 3rd Respondent is before this court and has made no effort to settle the judgment since November 2024. However, the 2nd respondent

has fulfilled the promise he made before the court to pay for the truck and 40 million, as recorded by the court. He stressed that the third respondent and 4th respondent had failed to Honor their pledge. Therefore, it was his prayer that the said Respondents (3rd and 4th Respondents) be detained as civil prisoners for the period the court may prescribe, and once they are released, they shall pay the debt. He 2 contended that the 3rd and 4th Respondents have not declared bankruptcy, but rather, their actions are intended to hide and deceive this honorable court and their valuable possessions. He thus prayed that this court grant the orders sought so that the applicant could satisfy the Decree and the costs of the case. In reply, the counsel, Mr. Gabriel, submitted that the second respondent had paid the applicant as agreed earlier. On the other hand, counsel Mr. Khalid for the third respondent submitted that the company has no properties. Every other director, including the 3rd Respondent, has no properties. According to him, a person serving as a civil prisoner must have properties but does not want to pay for them. This is under Order XXI, Rule 39(2)(b) of the CPC. He stressed that the judgment debtor has not transferred his properties nor hidden the same. He cited to the court the case of Joseph Nestory Isaka vs. Franconia Investment LTD, Execution No. 4 of 2020, expressing

that the applicant was supposed to file an affidavit that the respondents had hidden the properties. Mr. Khalid went on to submit that the third applicant is in poverty because he lacks property. He argued that the law does not stipulate that 3 a poor person shall be declared bankrupt, so he cannot be sentenced as a civil prisoner if he is already bankrupt. On the allegation of bad faith, he contended the 3rd respondent had not shown any lousy faith not to pay the debt. He disclosed that there is one land for mining, which the 3rd respondent owns, but the applicant does not want to visit the plot of land, which could reduce the debt or give him time to sell and pay part of the remaining debt. Additionally, the third respondent is ill and needs to undergo a hospital test. He was insistent that sentencing 3rd respondent as a civil prisoner would endanger his health, and such health conditions led him to lose a lot of money for treatment. He cited Section 37(1) and (2) of the CPC, stating that if the judgment debtor is sick, he cannot be sentenced as a civil prisoner. Concerning poverty and sickness he said the same were stated in the case of Avinash Lemeshkuman Galan and another vs. Anamika Aginhotry and two others, civil application No. 250 of 2023, and Mrs. Gerogia Selestina Mtikila vs. PG Associated Ltd, and Pladip Kumar Larji Gajar, Misc, civil application No. 446 of 2023. He

submitted further there is no evidence of concealment of the properties. Additionally, as per Order XX1, Rule 40 of the CPC, the property must be examined to determine its value. He prays before this 4 court that the third respondent be given time to dispose of his properties, pay the debt, or get a bank loan. In rejoinder submission, Mr. Nashon submitted that the 3rd and 4th respondents should be sentenced as civil prisoners. Concerning the landed property for mining, he said the 3rd respondent had not supplied the applicant with any document relating to the said property or its descriptions. Regarding bad faith, Mr. Nashoni stated that the records indicate the judgment was delivered a long time ago, but the 3rd respondent has taken no action to date. Regarding the issue of sickness, he submitted, the third respondent is present in court, but there is no evidence to suggest that he is seriously ill. He stated that Order XXI, Rule 39 of the CPC, also applied to delay and bad faith in executing the decree. He maintained that, since September 2024, the third respondent has taken no action it is an indicating of lack of good faith. It was his prayer that the 3rd and 4th Respondents be arrested and detained, and once they are released, they will pay the debt. I have carefully examined the pleadings and submissions in support of and in opposition to the application. The issue for

determination is 5 whether this application for execution by way of detaining the judgment debtors as civil prisoners should be granted or not. It is the uncontroverted fact that the power of this Court to commit a Judgment Debtor to jail as a civil prisoner is provided under Order XXI Rules 35 (1) (2) of the CPC, which provides that: “35(1)Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention as a civil prisoner of a Judgment Debtor who is liable to be arrested in pursuance of the application, the Court may, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to prison. (2) Where appearance is not made in obedience to the notice, the Court shall, if the Decree Holder so requires, issue a warrant for the arrest of the Judgment Debtor”. The Order XXI Rule 35 limits the arrest of the Judgment Debtor only if he pays the decreed amount and costs of the arrest. However, before ordering the judgment debtor to be arrested, certain conditions must be followed. The said conditions are explained in the case of Grand Alliance Limited 5 vs. Mr. Wilfred Luka Tarimo & Others, Civil Application No. 187/16 of 2019 (CAT- Unreported), where the court had this to

say: 6 “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 the 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). 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 a 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”. Moreover, the provisions of sections 42, 44(1), and Order XXI, Rules 35(1) and 36 of the CPC, provide for the right to commit a Judgment Debtor to jail as a civil prisoner for failure to satisfy the decree. The essence of executing a decree is to let the decree-holder relish the fruits of the decree passed in their favor. Order XXI Rule 20 (1) 35(1) and (2) of the CPC provide for the mandatory

requirement of issuing notice to the judgment debtor once there is an application for execution of the decree. 7 The reason is to ensure that parties are treated fairly and the judgment debtor is not condemned unheard. This court, in adherence to the provision of Order XXI Rule 20(1) and 35(1) and (2) of the CPC, issued a summons to appear to the judgment debtors whereby the respondents did not appear, and on 7/11/ 2024 this court issued arrest warrant where the respondents were brought to court on 18th November 2024 to show cause why they should not be detained as a civil prisoner. On 4th December 2024, Mr. Khalidi, counsel for the 3rd respondent, informed the court that the third respondent agreed to settle the decree amicably by delivering the backhoe and paying forty million shillings as costs of the case. Nevertheless, he did not fulfil his promise. In his submission, Mr. Khalidi claims that the 3rd respondent is ill and does not own property due to his poverty. He also prayed before the court for time to dispose of his properties, pay his debts, or obtain a bank loan. In my view, the reasons advanced by the 3rd respondent are not justified at all, as the decree was issued on 06/06/ 2024, if he wanted to pay, he could make an effort to do so. Concerning sickness, he did not tender any medical chit to prove the same. Since the decree-holder wants to enjoy the fruits of the

judgment given in his favor, it is the finding of 8 this court that the Judgment Debtors’ failure to execute the award represents a dishonest and fraudulent character that denies him such right. In the premises, this court, not being moved by the affidavits of the 3rd and 4th respondents, has no option but to issue an order of arrest and detain the 3rd and 4th respondents, judgment debtors Mr. Ally Othma Sama and Frank Chrispin Likotiko, as civil prisoners. Because of the above findings and under the provisions of Order XII Rule 35 of the Civil Procedure Code Cap 33 (R.E. 2019), I hereby order that, unless the whole decretal amount of Tshs. 40,000,000/= is paid, and the backhoe is delivered as agreed within 14 days from the date of this ruling, the Judgment Debtor, Mr. Ally Othma Sama, and Frank Chrispin Likotiko shall be arrested and detained as a civil prisoner in Civil Prison in Tanzania for six (6) months in the execution of a decree of this Court pronounced in Civil Case No.7 of 2016. The 14 days given expire on 1st April 2025. In the event the judgment debtors fail to satisfy the court decree, the arrest and detention shall take effect as of April 1, 2025. The Applicant/Decree Holder shall pay Tshs. 300,000/= (Three Hundred Thousand only to the Prison Officer of Ukonga Prison as subsistence allowance per month for each month the Judgment Debtor is in prison. 9 Should the decree-holder fail to pay that amount, Mr. Ally Othma Sama and Frank Chrispin Likotiko shall not be detained. In terms of sub-section (2) of section 46 of the Civil Procedure Code, [Cap. 33 R.E 2019] their release from prison after serving the ordered six (6) months is not a discharge from the debt. No order as to costs. It is so ordered accordingly. H.R. MWANGA

JUDGE 18/03/2025 COURT: The ruling was delivered today, on 18th March 2025, before Mr. Baraka Nashon, a learned counsel, represented the applicant, also holding the brief of Mr. Fikiri Gabriel for the 2nd Respondent and the 3rd Respondent in person. H.R. MWANGA

JUDGE 18/03/2025 10