WAMBURA RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL REVISION NO. 12495 OF2024 ( C/f Civil Application No. 134 of 2022 in the Resident Magistrate’s Court of Dar es Salaam at Kisutu) CITL INTERNATIONAL LTD ........................................ 1ST APPLICANT GEORGE LUCAS WAMBURA .........................................2ND APPLICANT Vs. HUSSEIN JUMA KADARI ........................................ 1ST RESPONDENT SARAH FABIAN BUNDALA ..................................... 2ND RESPONDENT RULING Date of last order: 18-2-2025 Date of Ruling:4-4-2025 B.K.PHILLIP, J. This application is made under Section 79(1) (a) (b) (c) of the Civil Procedure Code (Cap. 33 R.E. 2019) and Section 44(1) (b) of the Magistrate Court Act 1 (Cap. 17 R.E. 2019). The applicant’s prayers are reproduced verbatim hereunder; i) That the Honorable Court be pleased to call for the record of the Resident Magistrate's Court of Dar es Salaam at Kisutu in Misc. Civil Application No. 134 Of 2022 dated the 3rd day of April 2024 and inspect the same and thereby revise, correct and set aside the irregularity and or an error material to the merits of the case involving injustice to the Applicants herein. ii) The costs of this application are to be provided for. An affidavit sworn by the applicant supports the application. The respondents filed a joint affidavit in opposition to the application. The learned advocates Muhidhiri Magee and Jenipher Sintala appeared on behalf of the applicant and the respondent, respectively. The application was disposed of through written submissions. Submitting in support of the application, Mr. Magiee started his submission by pointing out that a decision of the executing court can be challenged by way of revision. He cited the case of Maligisa Manyangu Vs. The National Insurance Corporation (T) Limited, Civil Appeal No. 121 of 2 2021, and Mohamed Makata vs. Rukia Mtama, Revision No. 6 of 2022 (both unreported). He raised the following argument: One, no evidence of bad faith against the 2nd respondent was presented in court to warrant the issuance of an order lifting the corporate veil of the 1st applicant. No evidence, such as motor vehicle registration cards, was presented by the respondent to prove that the motor vehicles listed in the affidavit sworn by the court broker, Nassor Hassan, belonged to the 1st applicant and that the second applicant had transferred them to third parties, as alleged by the respondents. The 2nd applicant was in jail. Therefore, it was not possible that he would have been involved in transferring the motor vehicles to third parties. Relying on the case of The Grand Alliance Limited Vs. Mr. Wilfred Lucas Tarimo, Civil Application No. 187/16 of 2019 (unreported), Mr. Magee insisted that there was no proof of bad faith on the 2nd applicant, and there was no justification for lifting the corporate veil. Two, the court did not issue a summons to show cause and investigate whether the 2nd applicant had the means to pay the decretal sum, but was intentionally ignoring the requirement to pay. Third, the application for execution No. 134/2022 was incorrectly entertained by the court because the court decree and the alleged deed of settlement were not appended to the application. He contended that failure to attach the decree in an application for execution is fatal. He cited the case of Consolidated Holding Corporation Vs. JIT Finance Limited and others, Civil Application No. 120 of 2003, (unreported) to cement his arguments. Furthermore, Mr. Magee argued that the 2nd applicant was neither served 3 with any summons in respect of Civil Case No. 8/2020 nor did they sign any of the alleged deed of settlement. He contended that the deed of settlement was signed by Emmanuel Mwaipungu and Advocate Godlove Godwin, both of whom were unknown to the second applicant. The respondents did not produce in court any letter of engagement to handle Civil Case No.8 of 2020 from Advocate Godlove Godwin. Mr. Magee implored this court to set aside the Ruling of the lower court. In rebuttal, Ms. Sintala refuted all of the arguments raised by Mr. Magee. She argued that the respondents’ joint affidavit, in paragraphs 4.7 and 12, has clearly shown that the 1st applicant acted with bad faith. He started transferring the motor vehicles belonging to the 1st applicant to third parties. The fact that the second applicant was in prison does not rule out the possibility that he transferred the motor vehicles in question to third parties, because the transfer of ownership of a motor vehicle does not necessarily require the physical presence of the owner, as agents can also facilitate such transfers. She added that the first applicant did not file any counter-affidavit to challenge the affidavit sworn by Nassor Shaban Hassan, the Court Broker. Furthermore, she argued that the applicants were served with a summons to show cause in Application No. 105 of 2020, from which Application No. 4 134 of 2021, the subject of this application, originates; however, they did not file any counter affidavit. She pointed out that despite being served with a summons to show cause, the applicants did not comply, which is why the respondents had to apply to lift the corporate veil of the first applicant to satisfy the court's decree in Civil Case No. 8 of 2020. To support her argument, she cited the case of Yusuph Manji Vs. Edward Masanja and Abdallah Juma [2006] T.L.R. 127. She insisted that the legal steps for executing the decree, in particular, Order 21, Rule 35(1), had been complied with; thus, the executing court could not be faulted in any way. No law requires a copy of the deed of settlement and consent judgment to be attached to an application for execution of a court decree. She added that the consent judgment was attached in Application No. 105 of 2020 for execution. Ms. Jenipher maintained that the 1st applicant was aware of the existence of Civil Case No. 8 of 2020, which was lodged in court by the respondents, and was duly represented by Emmanuel Mwaipungu, its Director of Legal Affairs, and the learned advocate Godlove Godwin. She pointed out that the 5 first applicant, while in prison, wrote a letter of complaint (Annexure HK3 to the respondents’ counter affidavit) regarding the said Civil Case No. 8 of 2020, which serves as proof that he was aware of the case. She was emphatic that the first applicant had instructed Emmanuel Mwaipungu and Advocate Godwin to represent them in Civil Case No. 8 of 2020. If they had no instruction to represent the first applicant, why did the first applicant not take any legal action against them? Additionally, Ms. Jenipher argued that the applicant’s affidavit is tainted with untruth. Thus, it is no affidavit at all, worth the name, and cannot be relied upon by this court. To support his argument, he cited the case of Uthumani Madati (Administrator of the Estate of the late Juma Posanyi Madati Vs. Tatu O. Farahani & Salim Madati, Misc. Land Application No. 388 of 2020 (unreported). She was of the view that the applicants had failed to show any irregularity or illegality in the impugned Ruling. In conclusion, she requested that this court dismiss the application with costs. 6 Having analyzed the competing arguments presented by the learned advocates, I will proceed with determining the merit of this application. For a better understanding of the discussion that follows, I will provide a brief background on this application. In 2020, the respondents herein filed a case against the 1st applicant, vide Civil Case No. 8 of 2020, which was settled amicably by signing a deed of settlement that was subsequently adopted as a court decree. Among other things, the 1st applicant agreed to pay the respondents a sum of USD 75,000. However, the court decree aforesaid was not satisfied as agreed upon, thus the respondents applied for the execution of the court decree vide Miscellaneous Civil Application No. 105 of 2020, through which the court appointed Nassoro S. Hassan, T/A Adili Auction Mart, a court broker to execute the court decree. The execution was partly done and a sum of Tshs. 14,403,500/= was realized through the auction of some of the 1st applicant’s properties. However, according to the affidavit sworn by Nassor S. Hassan, the Court Broker, the motor vehicles identified by the respondents for auction could not be auctioned because the second applicant, being the director of the first applicant, had transferred ownership of those vehicles to third parties to frustrate the execution of the court 7 decree. In 2022, the respondents filed Miscellaneous Civil Application No. 134 of 2022, from which the impugned Ruling emanates, with two major prayers: one, to lift the corporate veil of the 1st applicant so that the 2nd applicant can be personally liable to satisfy the court decree in Civil Case No. 8 of 2020. Two, an order for the arrest and detention of the 2nd applicant as a civil prisoner be issued until he pays the decretal sum in Civil Case No. 8 of 2020. The application was decided in favour of the respondents herein. Thus, the applicants lodged this application. Returning to the application at hand, the provisions of Section 79(1) of the CPC and Section 44(1) of the Magistrate’s Court Act confer powers on this court to revise the decision of the lower court where there is an irregularity or illegality in the proceedings or the impugned decision. To begin with, the court’s record reveals that the respondents filed Civil Case No. 8 of 2020 against the first applicant, which was settled amicably by a deed of settlement signed by the parties. Advocate Godlove Godwin represented the first applicant in the aforementioned Civil Case No. 8 of 2020. Mr. Magee’s argument that the first applicant was not aware of the existence of Civil Case 8 No. 8 of 2020 is incorrect, as the court’s records show that while in prison, the 2nd applicant, who is the first applicant’s principal officer, communicated with the lower court regarding that case. Therefore, he was aware of the existence of Civil Case No. 8 of 2020. Regarding the application for execution of the court decree in the aforementioned Civil Case No. 8 of 2020, it is essential to note that the two applications, that is, Misc. Civil Application Nos. 105 of 2020 and 134 of 2022, filed by the respondents, are distinct applications, which is why they have separate case files. They have different pleadings and prayers, and each one has its own proceedings. Therefore, each one needed to have all essential documents to support the prayers made therein, even though both are related to the execution of the court decree in Civil Case No. 8 of 2020. A document pleaded in one case file cannot serve as the basis of a decision in another case file, as long as the two case files are not consolidated and are dealt with separately at different times. After all, Application No. 134/2021 was between the applicants herein and the respondents, whereas Misc Civil Application No. 105 of 2020 was between the first applicant (a legal entity) 9 and the respondents herein. Therefore, I am inclined to agree with Mr. Magee that respondents were required to annex to the affidavit in support of Misc. Civil Application No. 134 of 2022, the court decree and all relevant documents as required by law, provided the respondents decided to file a fresh application. However, the pertinent question that arises here is whether it was proper for the respondents to file a fresh application for execution of the court decree in Civil Application No. 8 of 2020, two years after the executing court issued an order for execution of the court decree and appointed a court broker in Misc. Civil Application No. 105 of 2020, which had not yet been fully complied with, as the court broker appointed to execute the court decree raised concerns that the first applicant was transferring the ownership of the motor vehicles ordered to be auctioned by the court. To my understanding, after receiving the report from the court broker, if the respondents wished to take further action to have the court decree satisfied, they were required to move the executing court in the same case file to lift the corporate veil of the first applicant. If their application had been granted, the court would have issued a summons to show cause why the second applicant should not be arrested and detained as a civil prisoner, rather than lodging a new application, which would have required them to 10 restart the process for executing the court decree whereas the execution was already partly done. Some of the judgment debtor’s properties were auctioned, and a sum of Tshs. 14,493,500/= was realized. The above aside, although I agree with Ms. Sintala that agents can do the transfer of ownership, I am inclined to agree with Mr. Magee that no satisfactory evidence was produced in court, such as a document evidencing the transfer of the motor vehicles to third parties or the names of the third parties to whom the motor vehicles were transferred to substantiate the respondents’ allegations. To cap it all, one, the executing court issued an order that the 2nd applicant may be detained as a civil prisoner without specifying the exact amount he was required to pay after lifting the first applicant’s corporate veil. I have noted that neither the respondents nor the executing Court in its ruling mentioned the remaining decretal sum after the amount realized from the auction was paid to the respondents. Two, the impugned ruling does not contain any order regarding the payment of allowances for detaining the first applicant as a civil prisoner, contrary to Order 21, Rule 38(1) and (2) of the CPC, which is fatal. The executing court 11 was required to indicate the remaining decretal sum to be paid by the decree holder, as the second respondent’s second prayer was for the arrest and detention of the 1st applicant as a civil prisoner, thus the court orders issued by the executing court were not exhaustive. Ultimately, I agree with Mr. Magee that the impugned ruling and proceedings are tainted with fatal legal irregularities. Thus, this application is allowed. The impugned Ruling is hereby set aside. However, since the irregularities pointed out partly relate to the way the executing court handled the application for execution, each party will bear its own costs. Dated at Dar es Salaam this 4th day of March 2025 B.K.PHILLIP JUDGE. 12 13