equity bank tanzania limited vs mwinyimkuu shomari mdadike and 4 others 2022 tzhc 15565 16 december 2022

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 53 OF 2019 (Arising from Civil Case No. 217 of 2016 Ilala District Court) EQUITY BANK TANZANIA LIMITED ………..……………….APPLICANT VERSUS MWINYIMKUU SHOMARI MDADIKE (as Administrator of the estate of the late Msafiri Shomari) …..………………………....….. 1st RESPONDENT ADOLF ALTO SYCHULLERY …………………………... 2nd RESPONDENT SHIRIKA LA USAFIRI DAR ES SALAAM LIMITED ………………….………… 3rd RESPONDENT STEPHANO SHILEHOTWA NDOSSY …………..……. 4th RESPONDENT BINGWA AUCTIONEERS & GENERAL SUPPLIES LIMITED ……………….……… 5th RESPONDENT RULING 02/09/2021 & 16/12/2022 S.M. KULITA, J. In this application for extension of time to file revision against the decision of Ilala District Court in the Civil Case No. 217 of 2016, Advocate for the Applicant, Mr. Stephen Axwesso was asked by this court to state on the 1 competence of the application. However, what Mr. Axwesso had done for that purpose was only to lodge two authorities which are the case laws, to justify that the application he has lodged is competent. But, the reason behind for this court to do so was that, the original record, Civil Case No. 217 of 2016 Ilala District Court, transpire that the Decree Holder Mwinyimkuu shomari Mdadile who was suing ADOLF ALTO SYCHULLERY (2nd Respondent) and SHIRIKA LA USAFIRI DAR ES SALAAM LIMITED (3rd Respondent) attached a motor vehicle with registration No. T 573 CRQ of which the Applicant herein, EQUITY BANK TANZANIA LIMITED shows to have an interest on it. In the application at hand the Applicant’s Principal Officer, Mr. Tumaini Lukumay alleges in his affidavit that the Judgment Debtor, Shirika la Usafiri Dar es Salaam, was not the sole owner of the property (motor vehicle). He said that the Applicant has a share on it. The pleadings also transpire that the Applicant is in possession of the registration card for the disputable vehicle, which is in her name. Under that circumstance, it means that there is no way the said property could be transferred to Mwinyimkuu shomari Mdadile as its registration is not in the name of any of the Judgment Debtors who are the 2nd and 3rd Respondents herein. That being the case the Applicant still has a venue to challenge the attachment of the said property by Mwinyimkuu shomari Mdadile before the executing court (Ilala District Court) by filing objection proceedings before that court. Be it noted that in the said Civil Case No. 217 of 2016, the cause of action was the claim for a total of Tsh. 20,000,000/= by the said Mwinyimkuu 2 shomari Mdadile (the Administrator of the estate of the late Msafiri Shomari) being the general damages and compensation for the death of his son in the road accident on 22nd January, 2015, caused by the negligent driving of the motor vehicle by ADOLF ALTO SYCHULLERY (2nd Respondent herein) who was the employee of SHIRIKA LA USAFIRI DAR ES SALAAM LIMITED (3rd Respondent). In the Traffic Case No. 59 of 2015 in which the 2nd Respondent was charged at Ilala District Court, the Accused (2nd Respondent) was convicted and sentenced to pay a fine of Tsh. 100,000/= or to serve the imprisonment of 2 (two) years in default. The disputable motor vehicle was attached in executing the decree of the trial court to compensate the Decree Holder. It was not attached as a subject matter for the case. It means the Decree Holder could have attached any other property owned by the Judgment Debtor for that purpose of executing the decree. The law in objection proceedings is provided under Order XXI Rules 57, 58 and 59 of the Civil Procedure Code, [Cap. 33 RE 2002]. For ease of reference, I hereby reproduce; "57.-(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all or other respects, as if he was a party to the suit: Provided that, no such investigation shall be made where 3 the court considers that the claim or objection was designedly or unnecessarily delayed. (2) Where the property to which the claim or objection applies has been advertised for sale, the court ordering the sale may postpone it pending the investigation of the claim or objection. 58. The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached. 59. Where upon the said investigation the court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment." (emphasis is mine) In the case of Dorice Keneth Rwakatare V. Nurdin Abdallah Mushi and 5 Others, Miscellaneous Application No. 300 of 2019, High Court Land Division (unreported) it was held; 4 "In an objection proceedings the executing court has an obligation of investigating the claims to see the objector has proved to have possession or interest in the attached property." Basically, any person, even if he/she was not a party to the case, but aggrieved with the attachment of property in execution of the decree, for any reasonable ground like having an interest on it, or the property is solely owned by him and not the Judgment Debtor, has to file the Objection Proceedings in the court which has been empowered to execute the decree under Section 38(1) of the Civil Procedure Code which provides; “All questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit” From the thread of authorities above, clearly it is the duty of the applicant to file the objection proceedings, then adduce evidence before the executing court to prove that he/she has interest in the attached property. It is a duty of the said executing court to investigate such claim. It is from the said investigation of facts and evidence where the executing court will be in a position to determine the matter. Thus, the applicant herein ought not to file this application seeking for leave to apply for revision. In this matter therefore, the Applicant, if aggrieved with the attachment of the motor vehicle in question for having an interest on it, had to file the Objection Proceedings before the executing court which is Ilala District Court. The Applicant has no right of moving this court towards determining 5 the legality of the District Court’s proceedings in the Civil Case No. 217 of 2016 in which she was not a party. In upshot, the application before me is defective. It is summarily dismissed with no order as to costs. The Applicant is asked to lodge the Objection Proceedings at the executing court which is Ilala District Court, subject to the requirement of the Law of Limitation Act. S.M. KULITA JUDGE 16/12/2022 6