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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA MISC. CIVIL APPLICATION NO. 000087869 OF 2023 (Originating from Application for Execution No. 5 of 2022 originating from Civil Case No. 5 of 2017) FLANO GIDEON MAMBO……….....……………..…..………APPLICANT

VERSUS GERALD LUNKOMBE…...….………..……….……………..RESPONDENT

RULING Date: 20 May 2024 & 18 July 2024 SINDA, J.: This is an application for execution of a decree made under section 42 (c) & 95, Order XXI Rule 35 (1) & (2) of the Civil Procedure Code, Cap. 33 R.E 2019 (the CPC). The applicant applies for execution of the decree issued by this court in Civil Case No. 5 of 2017. The applicant prays for this court to 1 issue an order of arrest and detention as civil prisoner of one Gerald Lunkombe. The application was supported by an affidavit sworn by the applicant and resisted by the counter affidavit of the respondent. The hearing of the application was by way of written submission. The applicant was represented by Mr. Kelvin Kuboja Gamba, learned advocate while the respondent was represented by Mr. Steward Ngwale, learned advocate. In his submission in chief, Mr. Gamba adopted the applicant’s affidavit to form part of his submission. He argued that according to Section 42(c) & 95 and Order XXI Rule 35 (1) & (2) of the CPC, one among the modes to enforce execution is by way of arrest and detention of judgment debtor as a civil prisoner. He added that for the application of such nature to be successful, the same has to be in accordance to the established principle provided in the case of Simon John Ngalesoni vs. Father Velemir Tomic (suing as legal Representative of the Registered trustee of catholic archdiocese of Arusha) Civil Revision

No. 1 Of 2022 High Court of Tanzania at Arusha (unreported). Mr. Gamba further submitted that the decision in Civil Case No. 5 of 2017 was pronounced in favor of the applicant three years ago. To date the 2 respondent has not shown intention to pay back the money. This shows ill motive and bad faith by the respondent. He cited the case of Simon John Ngalesoni vs. Father Velemir Tomic) (supra) to support his argument. Moreover, Mr. Gamba submitted that the respondent in his counter affidavit stated that he had no property to be attached. In paragraph 5 of the counter affidavit agreed with the applicant’s application to detain him as a civil prisoner. He argued that non-refute of this fact amounts to admission on the part of the respondent and implies that the applicant has sufficiently discharged his duty as required in the application of this nature. He cited the case of Amina Khamis & 3 Others versus Kikundi Cha Kapua Mama Cha Katungulu (W) Sengerema Misc Civil Application No. 4 of 2022 High Court of Tanzania at Mwanza. Mr. Gamba submitted that, the respondent in his counter affidavit failed to show sufficient grounds on why he should not be remanded as a civil prisoner. The only reason for the court not to grant such order is when the respondent has shown sufficient reasons as observed in the case of Amina Khamis & 3 Others versus Kikundi Cha Kapua Mama Cha Katungulu (W)

Sengerema (supra). 3 In his reply, Mr. Ngwale also adopted the respondent’s affidavit to form part of his submission. He argued that it is a known principle of law that before applying for execution of decree by way of arrest and detention as a civil prisoner, the applicant needs to have exhausted all modes of execution. He stated in the present application, the applicant only applied for attachment of a residential house of the respondent which was declared not subject to attachment. In support of his argument, he cited the case of Joseph Nestory Isaka vs. Flonconia Investment Limited, Execution No. 4 of 2020 (unreported). Mr. Ngwale submitted that the respondent is liable to pay the decretal amount to the applicant. However, due to economic challenges and having no other property apart from his residential house. He stated the responded is cooperative and willing to pay the respondent. The respondent can only afford to pay TZZ 300,000/= per month as stipulated in paragraph 5 of his counter affidavit. He added the applicant is not willing to accept such arrangement. Hence this application to punish the respondent. Mr. Ngwale further submitted that the applicant failed to prove that the respondent had bad faith which would warrant him to be arrested and detained as a civil prisoner. He referred to the case of Grand Alliance 4 Limited versus Mr. Wilfred Luca Tarimo and Others,

Civil Appeal No. 187/76 of 2019 (unreported), in support of his argument. In rejoinder, Mr. Gamba before rejoining on the subject matter of the application, wished to point out that the reply submission by the respondent’s counsel did not comply with the order of this court. That is, the use of Tahoma font size 14, line spacing 1.5 and the submission not to exceed 4 pages. He added that since the court order are meant to be obeyed, he prayed for this court to expunge the submission filled by the respondent. In support of his argument he cited the case of CRDB Bank PLC versus Heri Microfinance Limited & Cassiano Lucas Kaegere, Civil Appeal No. 20 of 2020 Court of Appeal of Tanzania at Sumbawanga. The counsel further disagreed with the contention by Mr. Ngwale that the applicant failed to prove bad faith of the respondent. Mr. Gamba was of the view that failure of the respondent to pay the decretal amount to the applicant for three years after the judgment was pronounced clearly proves the respondent has no intention of paying and satisfying the decree of the court. 5 Having carefully reviewed the parties' arguments, first, I wish to address the issue raised by the applicant’s counsel in his rejoinder submission, that during the respondent counsel did not abide by the orders of the court especially on the format of the submission. I agree that court orders must be obeyed and

adhered to with no exception. But at times, while exercising its discretion, the court turns a blind eye so as to save time and also to ensure no party is prejudiced in the process by an act or omission that does not go to the root of the case. However, the omission has been noted and will be used for future reference. I will now proceed to deliberate on whether the judgement debtor has given sufficient cause as to why an order allowing execution should not be passed. I wish to reproduce what was stated in the case of Grand Alliance Limited (supra) that cited the case of Jolly George Veghese & Another vs. The Bank of Tanzania of Cochin AIR 1980 SC 470, to wit "The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree, some or a substantial part of it. The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here 6 considerations of the debtor's other pressing needs and strained circumstances will play prominently.” The respondent submitted that he has no other property apart from his residential house which is not liable for attachment as determined by this court. The respondent further submitted he

is willing to settle this matter amicably by paying an instalment of TZS 300,000/= monthly. I therefore agree with Mr. Gamba that the applicant did exhaust all available modes of execution before bringing this application for execution by way of arrest and detention as a civil prisoner. See: a persuasive case of Harel Mallac Tanzania Limited vs. Junaco (T) Limited, Miscellaneous Commercial Application No. 144 Of 2016, High Court (Commercial Division), (unreported). Further, the fact that the respondent agreed to settle the decretal amount by payment of an instalment of TZS 300,000/- monthly no bearing to the present application. This court in Civil Case No. 5 of 2017 ordered the respondent to pay the applicant TZS 39,000,000/- as the principal amount advanced to him by the applicant and TZS 5,000,000/- as general damages. The offer by the respondent to settle the decretal sum by payment of an installment of TZS 300,000/- per month is quite unreasonable. It will take 15 7 years for the respondent to pay the decretal sum. This shows ill motive and bad faith by the respondent. I therefore hold that the judgment debtor has failed to show cause as to why he should not be committed to prison as a civil prisoner for his failure to pay the decretal sum. The application is granted in the following manner: 1. The respondent, Mr. Gerald Lunkombe is given six (6) months period to pay the decretal sum in Civil case No. 5 of 2017.

2. Upon expiry of the said period without payment of the decretal sum, Mr. Gerald Lunkombe shall be arrested and detained as a civil prisoner in Tanzania for a period of six (6) months in the execution of the decree in Civil Case No. 5 of 2017.

3. While in prison, the respondent shall be released therefrom any time upon compliance with the terms of the decree in Civil Case No. 5 of 2017.

4. In collaboration with the prison administration, the Honourable Deputy Registrar of this Court shall determine the amount payable as subsistence allowance by the applicant. 8 5. The applicant shall recover his costs of this application. Dated in Mbeya this 18 day of July 2024 A. A. SINDA

JUDGE 9