20040625 TZCA Arusha

.,.-- •· ·.,...,t·· IN THE HIGH COURT OF TANZANIA ATARUSHA CIVIL REVISION NO. 5 OF 2003 (In respect of the Ruling of Hon. Mgeta/ M in Civil Case No. 53 of 2003 District Court of Arusha at A HALCYON TANZANIA LIMITED ...... ·······~· ........ APPLICANT VERSUS GODSON SAID ROICA TIA ROI CA TRADERS ...................................... .... RESPONDENT RULING SHANGWA, J.: This is a preliininary objection to the application for revision of Mgeta, RM's ruling in Arusha District Court Civil Case No. 53 of 2003. It was raised by lean1ed counsel for the respondent Mr. Maro. Lean1ed Counsel for the applicant Dr. Alex Thomas N guluma advanced four grounds on which his client's application which is objected to is based. First, that the District Magistrates' Court had no jurisdiction to entertain the matter as the principal smn and interest claimed on the principal smn exceed the pecuniary jm·isdiction of the court. Secondly, that the applicant was not given the legal right to defend the suit. 1 Thirdly, that the property attached is subject of a debenture as such the debenture holder has overriding -interest over the assets over and above those of the respondent/decree holder. Fourthly, that the vehicle No. TZF.8595 which was also attached belongs to a third party who is not indebted to the respondent/decree holder and who _was not a party to Civil Case No.53 of 2003 at the District Magistrates' Court of Arusha. In his prelilninary objection to the application Mr. Maro stated that the revisional proceedings are barred by statute. In the alternative, he stated that the contents of paragraphs 5, 6 and 9 of the affidavit by Clive Dreyer which are not of his own knowledge are irregularly presented and ought to be struck out with costs. He -also objected to part of the application for revision in respect of · attaclnnent of properties in the execution of the trial court's decree. In his submission, Mr. Maro stated that under S.43(2) of the Magistrates' Courts Act, 1984 and S.79 of the Civil Procedure Code as amended by the I· Written Laws (Miscellaneous Ainendments) (No.3) of 2002 which is Act No. 25 of 2002, it is provided that no application for revision shall lie or be made in respect of any preliminary or interlocutory decision or order of the court unless such decision or order has the effect of finally determining the suit. He contended that the decision of Mgeta, RM in Arusha District Court's Civil Case No.53 of 2003 had no effect of finally determining the suit as it was -fixed for mention on 15/10/2003 to enable the defendant now applicant to file a defence .in respect of issues which were not detennined. 2 In reply, Dr. Alex Thomas Nguluma for the applicant submitted that the decision of Mgeta, RM had the effect of finally detennining the suit. He said that the main issue between the parties was settled by awarding the plaintiff Shs.100,000,000 as clailned. I have read the ruling of Mgeta, RM and I find that in actual fact it had the effect of finally detennining the suit. The initial clailn by the plaintiff in the lower court was for Shs.103,450,738 in fonn of a debt plus interest on the said sum at a rate of 25% per annum and costs of the suit. Somehow, during the proceedings, it appeared that the defendant now applicant is admitting to be indebted to the plaintiff in the smn of Shs.103,450,138. The plaintiff now respondent decided to waive Shs.3,450,138 for purposes of jurisdiction. After the said waiver, the trial court entered judgment iI1 favour of the plaintiff in the smn of Shs.100,000,000. Thereafter, the execution process of the trial court's decree ensued. I am of a considered view that had the matter not finally been detennined such process would not have ensued. In fact, after entering judgment iI1 favour of the plaintiff, there was nothing left to be decided in the suit. Thus therefore, the learned trial magistrate misdirected himself by saying that after entering judgment in favour of the plaintiff, he could not detennine the issue of interest and costs because it was premature for doing so. As a matter of practice, after entering judgment in favour of the plaintiff, the learned trial magistrate was supposed to detennine i1mnediately thereafter the rate of interest to be granted to the plaintiff and the 3 period of its accrual. He was also supposed to grant or refuse to grant costs of the suit to the plaintiff. Nonnally, the amount of interest to be granted and the order of costs in the suit are matters which fall under the discretionary powers of the court. In other words, these are not contentious matters to be contested by the parties to the suit. I hold therefore that the revisional proceedings are not barred by statute as the trial court's decision delivered by Mgeta, RM had the effect of finally detennining the suit. On the second point of prelilninary objection which has been raised in the alternative to the first point, I am of the view that the alleged irregular presentation of paragraphs 5, 6 and 9 in Clive Dreyer' s affidavit does not render it defective. As such, it will be of no use to strike them out On the third point of prelilninary objection, I do not agree with Mr. Maro that part of the application for revision concerning the order of attachment of certain properties in the execution of the decree is incompetent. So long as this order is alleged to have been passed without jurisdiction, the said part of the application cannot be said to be incompetent. However, I agree with Mr. Maro that where third party properties have been attached in execution of a court decree, only the third party who is interested or affected by the order of attaclunent has to lodge objection proceedings in the trial court. 4 l In the final analysis, I dismiss this preliminary objection to the application for revisional proceedings with costs. ~ . A.SHANGWA JUDGE 25/6/2004 Delivered in open court at Arusha this 25 th day of June, 2004. ~ A.SHANGWA JUDGE 25/6/2004 5 "'