GADAFI MFAUME ABDUL Vs

IN THE HIGH COURT OF TANZANIA (MTWARA SUB REGISTRY) AT MTWARA PC. CIVIL APPEAL NO. 32119 OF 2024 CASE REFERENCE NO.202412201000032119 (Arising from the decision of Masasi District Court in Civil Appeal No. 7055 of 2024, Original Civil Case No. 107 of 2021, Lisekese Primary Court) GADAFI MFAUME ABDUL………………………….…………..…………… APPELLANT VERSUS MUSTAFA HALIDI LIYEMBE……………………………………….……. RESPONDENT RULING Date of Last Order: 06th March, 2025 Date of Ruling: 14th March 2025. E. E. KAKOLAKI, J. This ruling seeks to address the issue raised by the Court suo motu as to whether the District Court of Masasi had jurisdiction to entertain the appeal arising from the decision of the Primary Court, when determining objection proceedings by the appellant, during execution of its decision. Briefly before the Lisekese Primary Court in Civil Case No. 107 of 2021, the respondent successfully sued one Maua Tilika Hodari (not a party to this appeal) for recovery of a total sum of Tshs. 13.400,000/- which he had extended to her as loan, following the latter’s failure to repay it back. In execution of trial Court’s order/decision, an order for sale of the judgment 1 debtor’s house was issued and the auction conducted to that effect, the act that prompted the appellant to lodge with the trial court an objection proceeding challenging sale of the said house identified to be Court by the respondent as judgment debtor’s property. It was appellant’s contention in the said objection proceedings that, the sold house is owned by his daughter whom he had sired to the judgment debtor, as he had bought the plot for her and erected a house therein, thus its attachment and sale was wrongly arrived at on assumption that, the same was owned by the judgment debtor. Upon hearing both parties the executing Court (trial Court) could not purchase appellant’s assertion for want of evidence, the result of which the raised objection was dismissed and the sale ordered lawfully conducted as the successful bidder was declared a lawful owner of the property after being issued with certificate of sale. Unhappy with the decision, the appellant unsuccessfully appealed to the District Court of Masasi vide Civil Appeal No. 7055 of 2024, as the appeal was dismissed for want of merit. Disgruntled he is now before this Court expressing his dissatisfaction by way of appeal in three (3) grounds of appeal, which for the purposes of this ruling I do not find it useful to reproduce as it will soon be revealed. 2 As alluded to above, when the matter was set for hearing both parties who appeared unrepresented were invited to address the Court on the issue raised suo motu by the Court as to whether the District Court of Masasi when exercising its appellate jurisdiction was seized with powers to entertain an appeal originating from the decision of objection proceedings during execution of the Lisekese Primary Court decision. As both were ready to proceed, they addressed the Court orally on the issue. Submitting on the issue raised suo motu by the Court, the appellant responded in affirmative arguing that, the appellate court was seized with jurisdiction to entertain his appeal as the decision he was challenging originated from the primary court that had refused to nullify sale of the house of his daughter who was never a party nor judgment debtor in the original case. Similar views were held by the respondent who urged the court to find the District Court was possessed with jurisdiction to entertain the appeal before it, hence proceed to determine the present appeal on merit as it is properly before it. I have dispassionately considered the likeminded submissions by the parties concerning the issue raised by the Court and took time to revisit the law related to execution of court orders/decree and objection proceedings, more 3 so execution of court orders originating from the primary court. The law is settled under Rules 69, 70(1) of The Magistrates’ Court (Civil Procedure in Primary Courts) Rules, GN No. 310 of 1964, on the remedy available to the judgment debtor (party to the proceedings) or any interested party to the property (third party) seeking to challenge attachment or sale of the property in the course of execution of primary court’s decision, on belief that the property attached is not attachable or the concluded sale was obtained fraudulently or there is existence of material irregularity in that process or further that, the judgment debtor had no saleable interest in the property involved. This no doubt is done by way of application before the same trial court to set aside its orders. However, the said law is silent on the course to be taken by the aggrieved party more so when the application is unsuccessful. It is also common knowledge that, where a specific law does not provide for a remedy or procedures to be adopted or deal with a specific matter by any aggrieved party, the Court is not ousted to borrow the practice from other general laws inside or outside the jurisdiction. In our jurisdiction the law providing for remedy to the applicant whose objection proceeding is rendered fruitless is Order XXI Rule 62 of the Civil Procedure Code, [Cap. 33 4 R.E 2019]. For the benefit of deliberation which I am about to delve into, I take the liberty of reproducing the same and it reads: 62. Where a claim or an objection is preferred, the party against whom an order in made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. (Emphasis supplied). What is deduced from the above exposition of the law is the clear position of the law of the land that, any decision or order arising from the proceedings related to claim or objection proceedings over any property in the course of execution is conclusive as the only available remedy to the aggrieved party is an institution of a fresh suit in the court of competent jurisdiction so as to establish his/her right over the property under dispute and not preference of appeal against the decision. The above firm interpretation of the law is fortified in numberless decisions of both this Court and Court to Appeal. For instance this Court’s decisions in the cases of Metold Domel Vs. Samson Kuray and 2 Others (Land Appeal No. 14 of 2022) 2023 (TZHC) 15724 (27 February, 2023), Onesmo Samwel Kisabo Vs. James Kitindi (PC Civil Appeal No. 23 of 2021) 2021 TZHC 6471 (27 September 2021) and Omary Juma Mkubato Vs. Robert Koronako and Another (Misc. Land Case 5 Appeal No. 9 0of 2022) 2022 TZHCLand D 251 (20 April 2022) Tanzlii and the Court of Appeal’s decision in Transport Equipment Ltd v D.P. Valambhia (1995) TLR 161, Halais Pro-Chemie v Wella A.G. (1996) TLR 269, Kezia Violate Mato Vs. National Bank of Commerce & 3 Others, Civil Application No. 127 of 2005 and Bank of Tanzania Vs. Vallambhia, Civil Appeal, No. 15 of 2002 (both CAT- unreported) In Kezia Violate Mato (supra) the Court of Appeal among other things on the subject matter observed thus:- "... where a claim or an objection is preferred, the party against whom an order is made has no right of appeal but may institute a suit to establish the right which he claims to the property in dispute, as provided for under Order XXI Rule 62 of the Civil Procedure Code. This position was also reiterated by the Court in the case of the Bank of Tanzania v. Devram R Vaiambhia - Civil Reference No. 4 of 2003 (unreported)." (Emphasis added) Similarly in the case of Bank of Tanzania Vs. Vallambhia (supra) the Court of Appeal had this to say:- ”...it is abundantly clear to me that there is no right of appeal to the court once an objection to the attachment has been adjudicated upon. The remedy open to the objector is to file 6 a suit to establish the objection to the claim of the property in dispute." Borrowing the principle from the Civil Procedure Code, [Cap. 33 R.E 2019] well interpreted in the above cited decisions which as the settled law of the land on the subject matter and apply the same to the facts of this case so as to fill in the lacuna as obtained in The Magistrates’ Court (Civil Procedure in Primary Courts) Rules, GN No. 310 of 1964, I hold it is now the law in all matters originating from the Primary Court that, where an objection proceedings on attachment or sale of properties regarding execution of court’s orders or decision is unsuccessful the decision of the trial court is conclusive as no appeal shall arise therefrom. The only remedy available to the applicant is to institute a fresh suit in a proper forum so as to establish his/her right over the said property in dispute. In view of that clear position of the law, I do not embrace both parties’ submission and proposition that the District Court under the circumstances of this case as appellate court was seized with jurisdiction to entertain the appellant’s appeal after his objection proceedings in relation to the alleged sold property proved futile, as the only available to him was to file a fresh suit in the proper forum so as establish his right over the said property. 7 Much as the District Court of Masasi in Civil Appeal No. 7055 of 2024 proceeded to entertain the appeal preferred by the appellant without jurisdiction, the entire proceedings before it and the impugned ruling were rendered null, the remedy of which is to quash the entire proceedings and set aside the judgment and orders therein, which order I do hereby enter. In view of the above there is no competent appeal before this Court and the same is hereby struck out. The appellant is advised if so wishes to pursue his rights by instituting a fresh suit in the proper forum for establishment of his daughter’s right as alleged. Each party is ordered to bear own costs as the issue disposing of the appeal has been raised by the Court suo motu. It is so ordered. E. E. KAKOLAKI JUGDE 14/03/2025. Court: The Ruling has been delivered by Hon. S. Nsana, Deputy Registrar at Mtwara today on 14th day of March, 2025, in the presence of both Appellant and Respondent in person and Ms. Amina Salim, Court clerk. Right of appeal explained. 8 Sgd: S. NSANA DEPUTY REGISTRAR 14/03/2025. 9