amelo ibrahim myovela vs rutale hosea mpogole 2023 tzhc 20027 11 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY)

AT IRINGA EXECUTION NO. 01 OF 2023 (Original Civil Case No. 03/2018 of the High Court of Tanzania - Iringa at Iringa before Hon. F.N. Matogoio, J) AMELO IBRAHIM MYOVELA ......................................... DECREE HOLDER

VERSUS RUTALE HOSEA MPOGOLE ......................................... JUDGMENT DEBTOR

RULING 10h October & llh August, 2023 I.C MUGETA, J: Counsel for the applicant Mr. Frank Ngafumika has conceded that the application for execution filed by his client has errors in that it intended to ask for assistance of the court to detain Rutale Hosea Mpogole as a civil prisoner unless the decretal sum is paid but the application is made under order XXI rule 11 which concerns attachment of movable properties not in possession of the judgment debtor instead of order XXI rule 28 and 35(1) and (2). This followed an objection that the application is incompetent. He, however, submitted that the error is saved by the overriding objective principle under section 3 of the Civil Procedure Code. The relevant prayer in the application for execution which is made under XXI rule 11 reads: Page 1 of 3 "An order for arrest and attachment of the person of the judgment debtor (one Rotate Hosea Mpogote). Marko Kisakali, advocate for the respondent submitted, and I agree, that applications for arrest and detention of the judgment debtor as a civil prisoner is jurisdiction of a judge while applications for attachment of properties is jurisdiction of the Deputy Registrars. Therefore, he argued, both of them cannot be made in the same application as doing so causes jurisdictional confusion. I would have accepted the argument by counsel for the applicant if the error was limited to wrong citation

of the law. Such errors, it is now settled, are curable under the overriding objective principle. This is not the case were there is a complaint involving jurisdiction of the court. In my view, there is no gain saying that an objection based on jurisdiction error cannot be saved by the overriding objective principle or submissions in clarification made by a counsel from the bar. Therefore, the statement by counsel for the applicant that the intended mode of assistance sought from the court by the applicant is arrest and detention of a person which is, indeed, a jurisdiction of a judge, cannot save the application from being struck out because matters of jurisdiction are established by pleadings. Page 2 of 3 For the foregoing, I strike out the application. I give no orders as to costs as the error leading to this decision cannot be associated with bad faith in filing the application. I.C. MUG ETA

JUDGE 11/8/2023 Court: Ruling delivered in the presence of Frank Ngafumika, learned advocate for the decree holder, the decree holder, Marco Kisakali, learned advocate holding brief for Shaba Mtung'e, learned advocate for the judgment debtor and in the absence of the judgment debtor. Sgd. I.C. MUGETA

JUDGE 11/8/2023 Page 3 of 3