19760925 TZHC Mwanza

IN ThZ HIGH COUH'r OF TANZAI'JIA A2. 1111 V WV ZA S L)c• t. . . pc) VIL 68 OFL971 --- . ' • .: , • ': : : .:. l•• (Froni the cieciaio4 —tn Di'ict Coutof Musoma at Ivig in Civil Apeal fll97l j nefore P. •, LunyeIele - flistrct Ma b '1ie and *i4inal Zanaki Fimary Court Civil oas l-9'Tj.' . . KIT B/t kAdEI ... ........... APPELLANT ., ........ NY/tJvqAkOiKISIU .. RSPOI'DENT

JUDEN KATI•.TI :: ............... . . . ., ., . . In Zanaki Primary Court Civil Case No T7 o-f 1971, in Which Nyakangara was suing Muai kdefderIfoi a efu:ndóf brid pribe,. the Primary Court gave Judgme,xit,. in favour of Nyakangar.. Nyakangara, being a decree holder, initiated exeoution procecctir1g5 that culmina- ted into tn attachment of twenty six iieaus of cattle, beldnging to 1. the Judgment debtor. Tho decree holder was wfth thcs heads of cattle for over five nionths, after wnich the prooecctins ,w&re quashed, heads of cattle hancied back to the Judgmentadebtor b8 the ifistrict Qort which ordered the case to start de novo. The case startea a new, and again Judgment was given in faiour ç Nyakangtra, who initiateci execution proccedins Ths time.a onjy seven .1ead.s of cattle weie found at the home of the Jümerrt debtor, but. the. decree holder traced nd founCL htds of ctt1e that he claimed, he identified to be the property of the Judgthextdêbtór, at the ho .ef the objector, the appellant in this casei, were the twelve heads cf cattle that ere attacncd ar1d 'thus frrm the subject matter f these proceedings Consequently, ttie bjector filed Ojecticn, claiming that the twelve hcts f ctt1e ceased werc.. n t the pxoperty f the Judgment debtor. I uncterstnd that this application mt1t have bn me undr the pr visions f rule 70 (i) (2) (4) and (5) of the Magitrates Courts (Civil

Prooedu in Primary courts) rules I964 Cap. 537 which provides - 70 (1) "Any person, other than the Jucigmnt debtor, who claims to be thc owner of or to have some interest in property which has been attacnedoy the Court, may apply to trw court to elease"the property from attachment, statan the grounds on which he bases his objectiQfl 70 (2) On receipt of any aplic..tion under hub-rule (i) - the Court shall fix a day and time for hearing the objection and tslaall cause noticsthere to be served, upon the objecthr, dthet creditor and the judgment debtor.. 70 (4) On the'ciay by hearing the court shall investiate,the, objection,. and shall receive such evidence as the objector, the judgment creditor, and the judgment debtor. 70 (5) If the Court is satisfied,. that the part of it does not belong to the judSTnent debtor,. it shall make an order releasing it, or such part of it, from attachment.!'.. ... /2 — 2—. The dbove provisins, aknowld thfact, that it is possible that third parties, other than juo.gment debt r may have objection to property being, attachd. %rL.nd -the objtctor jn this case is doing just that. Furthermore although, the code docs not clearly prescribe th. extent to whii the investi.tions conomplated by 70 (4)..abcve should--go, I,hoiild think, it if the court is snisfieds t tri onership ef the property atthched. That is, if the court .is gatified that th rdperty does

not belong to the judgment debtor, that would be enough. I should therkafo ro 1•s-- upn the applicant or objector to establish that the property attached does not belong to the judgment debtr ' ovIsiöh, the -' objector must in his application state the grounds on which he bases His objection. In this case.the objectormaintains, that the twelve heads of cattle were his pr 'hbäiñe having boen paid as dowry for his daughter - LL&aTU. The Decree Holder maintains, that the heads of cattle belong to the Judgment debtor, who' mut 1iJ taken the same to the objector to defeat justice, aiid that he ientifies d. them ll, b-avin b n in pozessiLn b of thom, f oi-, five moiths as a result of the first attachment. To objector told the court that the twelve heads of cattle that were ceased under an ttachme.nt orcer, were part of the 26 heads f cattle paid to him, as dowry by one Nyakarigara who married his daughter. Nyakangara øn the ti,l' hand, said he'iievcr married the objeotors' dau,hter, but th. L.u 0hter of the objectwrbl brther. Mr. Ivlitemba f.r apellant,ent cut cf his'wa, and sàid hot, this made no difference as nes br.ther's children are his children. I pose. If we are tal1ixi in terms f xtcnued family , syaten, and all the tenets that .accrmpany the same, Ktr. iLterrba is 'iht. But, notwith- staxid.ng this, I have. yct tD moat tribes hich by — posse actual parents and accpt a

parternil uncle to receive all the dovry insteady of the fthr. , .... . ...... . . . . ...1 In this case, the ubjector apcllant suppOrtd y 1r Iatemba, want to' rnpress upon this cout,,ithatthe ôbsctor ecaijed the bride price for aAhiIU instead of her father. And that he received I. 26 heads cf cattle in all. But according to iJyakanara Wanami, he only paid 18 heads of cat -tl, and this tcr the actual fther of WASitTU anä. not the appellant, e also says that, the 12 hcacLa of oattle that the objector was talKing ac ut were bcught frm the auction, but prevaricates in his next broathe, that .su( out f twelve were iven to the objector, by his brother Nyakatende. Thus it is obvious, there were a lot of prevarications in the objector's evid•ence And it shculd be..s4rprisiag., that the. objectcr should ohly have seven heads of cattle, on the 2nd attachment, when he had over twenty heads on the first occasion. There is no explanatiin s to where the other could have dsappaared to. Further the Decree holder, had occaion to staywith the judgment debthrs hcads of cattle for five nbnths,and his claim that he could identthj tOr has not been displaced. Like the lower courts, and as urged byr, kunjpba for thc. respondent there was reais n for satisfaoti"n, that the heads of cattle at ao.hed belonged t the juabment debtor. The objectors' application, was rihtly, rejected. nd his -a,spel to this c. urt is so troated re,jected with costs. $AJIT1?I, JUDGh MWANZk hIGh COtJkiT 25TH PTojJio, 197 ... . ............... I ... -3.