20020214 TZHC Mwanza

IN THE HIGH ,C()URT OF TANZANIA AT MINAifl;A HIGH COURT CIVIL CASE ID., 48 OF 1,94 DANSWORTH SYNDICATES LTD .......................... PLAINfiFF VERSUS: REGIONAL CUS'R'MS & SALES TAX OFFICER (MARA REGION') ............. ~••••••••••• .... • DEF€NDANr RULING NMIILA - DR The de-cre-e l1ol.der ~ nansworlh. Symicate Ltd had on 15.2.1999 filed an application for execution inte.nded to Ct:TIS&r -an ;:uriount wm~ l!'9ma:lns 1u1pe.:i«t,., It is izxiicated in the application for~ that T.Sh.s.25,.503,921/- was paid by the judgment debtor, and that the remaining balance of T.Shs.32,o65,30l/• is yet to be paid. The legal officer of the judgment debtor Mr. Teemba contended that an understanding that the judsment holder ·was to waive the interest ~VOli in the matter. He argued that on the basis of that underataming, the amount paid to the decree holder discharged them from any further liability tc ~ the remaining amount. An another point Mr. Teemba subni tted, trutt after paying the said amount of T,Shs,25,503,921/- they filed an· application for certificate of payment and adjustment in terms of Order XXI rule 2 (2) of the Civil Procedure Code1 1966, which application was acted upon by the court on 6,9.1999._ He added that because that certificate was granted, the only thing the decree holder can do is to appeal to the Court of Appeal of Tanzania, He requested for the application to be refused. In reply to this, the representative of the decree holder argued that in the first place the person with:. whom they purported to negotiate was not \ 2 - the agent of the .d&cree holder. SecolJdly, he argued that the agreement being talked about cannot vary tmd/or vacate the jud~ent of the court. He thus requested for the application to be granted. It is true that the judgment of the High Court had granted ToShs~ 25,.50},92l/- to the decree holder as th& principal. amount, and further that it ordered eost&and interest at the rate of 12%. It is similarly true that the decree holder was paid the amount of T.Shs.251 503,921/- , by the judgment debtor, which the judgment debtor SSJ'S was paid after tMY agreed that the decree holder was to waive the interest which was granted by the court. It is on this basis that the judgment debtor filed an application for certification and adjustment which was acted upon by the court in the absence of the decree holder because he was informed to appear but did not appear for no reasons known. Order XXI rule 2(2) of the Civil Procedure Code is to the effect that if the decree holder fails to show cause why payment or adjustment should not be recorded as certified, the court shall .record the same accordingly. It is to say the refore that the amount of T.shs. 25 1 503, 921/- was ~rtified to have been paid in satisfaction of the decreed amount for reasons which were given by the legal officer of the judgment debtor. It has been argued by the representative of the decree holder that the person with whom they made the .negotiations was not an agent of the decree hoider. It may be true or not, but th~ argument would have received proper consideration if he appeared on the date he was asked to show cause, not after the cer~ificate was granted• Secondly, he argued that the agreement cannot vary a judgment of the court. To my view it does. If there is an agreement, that agreement immediately extinguishes and takes place of the decree, and it is an adjustment within the meaning of this ruJ. ~, prov.~:ded that the judgment debtor has fulfiled what he promised to do in that regard as is the case here. In the premises, I refuse.the request for execution. I 3 However, it is open for the decree ho~der to resort to other forums if he will still wish to pursue this matter. Order ~ccordi:ngly. t ----~---- DISTRICT REGISTRAR natet 14- - 2 - 2000 Coram: B.M.K. Mmilla DR J:VHolder: Present in person J/Debtor: Absent B/C Sekela --courts. Ruling deli ~red this 14th day of Fe ~ro-y, 2000, in the preaei:,.oe of the decree hold&r but in the absent of the judgment debtor. \ AT MWANZA.: DISTRICT REGISTRAR