20040906 TZHC Arusha

' , ... IN THE ll!GH COURT OF TANZANIA ,, . A:rri,~ARUSHA . CIVIL REV!SON NO.. 5, OF. 2 0 0 -~: (In respect of the Ruling of Roi: Mgeta RM~!n d~vil Case No,iu of 2003 .nistpict Cgbl't sa.> 6f. A;:ysh~ -~- Arusha) ....._...... - '. HALCYON TANZANIA LIMITED•••o••i•~• • .AP:PtICANT VERSUS GODSON SAID ROl:CA~ . . ·· - · oo••oo••••••••••••R:E:SPONDEN'r T/A RO~CA TR!DERSp rz ... 1 :. ·' -~ ,, .· ~ _ ... RULING ..... BEFORE A. Sli{lNGWA; .J This is a prel:i.minai';r objection -to the app,1~1-® for revision of Mgeta RM 1.s ruling in :i.rusha District Court Civil Case No. 53 of 2003. It was raised by Learned Counsel for tl'le respondent Mr. Maro Learned Counsel for the applicant Dr. Alex Thomas Nguluma. ~advanced four grounds on which his client's application which is objected to is based. First, that the District Magistrates' Cou~t had ne jurisdiction to entertain the matter as the principal sum and interest claimed on the principal sum exceed tllf pee·uniary ju:c;~-~?_iction of the court. Secondly, that-.t~e· applican_t . was not given the legal -... .... .. . .. ... ~~ right to defend the suit. I Thirdly, that the· property attaehed is subject of a debenture as such the debenture holder has overriding interest oyer the assets over and above those o~ the respondent/Decree holder. - 2 - FOUJ:'thlJ,. t'ha.t ·t11e veh'Ule Wo.~ ··TZF- e"5 ~ ~ also attached belongs to a third party who is not :1 · indecated to the !'esponaent/Decl:'ee Holder and who wa~ not a party to Civil Case No. 53 of 2003 at the Diatrat Mafistrates 1 Court of Arusha. In his preliminary objection to the applieation M~• Mar~ at~tea that the revisional proeeedings are barred by statute,.. In t'tre.alternative, he stated that the c ·contents of paragraphs 5,6~cn'ffl" -,.. 1>-t-·~ . a f " t i ~ "'- Clive Dreyer which are not of his own knowledge are irregulary presented and ough to be struck out with costs, He also objected to part of the application fo:r revision in respect of attaehment t>f properties in the execution of t;he trial court• s decree. In bis submission, Mr.• Maro stated that under S.,43 (2) of the Magi§_g__~tes • Court Act, 19e4 and· s.,79 of the Civil Proo edure ;~d~--··;,,s·"aine--nd-€€1-bJ.'__ _:l:;be written laws (Miscellaneous limendments) (No.~) of 20~;--~~~~h-i-~---···---~- · Act No. 25 of 2002, it is provided that no appli~ation for revision shall lie or be made in res?eot of any preliminary or intercutory decision or order of the court. unless such decision or order has the effect of finally det~rmining the suit. 9 He contended that the decision of Mgeta 9 RM in !irusha. District Court's Civil Case ,No. s;·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 appliean.t to file a defence in respect of issues which were .not -~~;~ .: ••••• /3 ... 3 . In reply, :Dr~ 1Uei Tht,me.s Ngulu.ma ~ th.e .A,pJ.?lica.n.t submitted that the detiision of Mgeta, BM bad the effeet of finally determining-,H1e suit. He said that the main ' . issue between-the patties was sett'.tea by awarding the ' . ,: ' . ... ' Plaintiff' Sbs~ 100.000.-000 as ,e iaimed; In nave read the ruling of Mg~ta, RM artd I find that in actual fact it had the effect of finally d~termining tbe suit. 'The int:i.~1 ~lrl!it _l,.:r ~ ~~.ii.tiff in the lower court was for Shs. 103,450•738 in form 1'-r a debt plus in-cerest on the said sum at a rate of 2596 per annum and costs of the suit. Somehow, during the proeeedings, it appeared that the defendant now appiicant is admitting to be indebted to the plaintiff in the sum of S'.g.s. '' 103,450, 138.. The plaintiff now respondep.t deoided to waive Shs. 3,450/138 tor purposes o·r jurisdiction~ Lfter the s~ia waives the trial eoli1't entered judgme'"-t in favour of the plaintiff in the sum of Shs. 100,000,000. :rhe.reafter 1 the exeeution proeees of the trial eourt 1 s deeree onsued. I am of a eonsidered view that how the matter not fi~ally been aete~mined such process would not have ensued •. In fact; after entering judgment in favour of the plaintiff, there was nothing left to be decided in the suit. Thus, threfore the learned trial magistrate miedirected himself by saying that afte~ entering judgment in favour of the plaintiff, he could not determine the issue of interest and costs because it was premature fo~ aoing, so. - 4 - hC---A-Jnatte:r.i o::r ~tise, after ente.t-ing judgment , ' . ;' in·. favour of the plaintiff., tht tP..a,rn~d trial_ magist:i:-.a.te was supposed to det-e:c.mine immediately tbe~~. ~ · of inte:riest to b-6> granted to the plaintiff and the period of its accrual. He was also supposed to grant or --refuse to grant ·costs of the suit to the plaintiff, Normally, the amount of interest to be g:r.ianted aod tha order .crf . ' costs in the suit are matters which fall under the discretionary powers of the court._ In other wol'<ls, ' these are not contentiou~ matters to be contel!!ted lty the ~es- to the suit. , . I hol~ ~ " J ' r o 't.~ the. ~?i..sz~ -p:r:~~ ~ ' not barred by statute as the trial eourt·'s decision delivered by Mgeta, RM ha.a the effect of fino.lly determining the suiti. On the second point of preliminary objection which has been raised in the alternative to the first p~i~t, I am of the view that the alleged irregular presentatio1t of paragraphs 5,6 and 9 in Clive Dreyer'e affidavit does not render if defective. As such, it will be of no use to strike them out. On the thrrd point of preliminary objection, I do not agree with Mro Maro that part of the application fer •. 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 eaid part of the application cannot be said to be incompetent. • •••• ' ' /5· . - 5 - 1 -·t Howeve.r •· L a ~ withe ~J,l;at.0 -th.a~ .whs.r~ !J:h·Jd -..J~ ~.o~t.ies-·h~ been ·attach~ ill ex~ution of· ,a COtU't ,,.· ·:· decreet only the third party who is interested or affect2d by the order of attaehment has to lodge . objection 1)1'-0¢-eedinga in the tri·a.l con.rt. In the final analyiis, I aismiss this preliminD..l!y objection to 'bhe appl:i.-0a:tion r-0r ~~iaa.@l. _p.;i,,oeeed~ with costs. Sgdt A. Sh~~gwa,J '2:$/6/2004- .Deliv.e.red in.. o-pen -eon~ a:t .l.rueha this ~ ~ -0.r -klnet, ·2004. Sgd: A. Sgan.gwa, J 25/6/2004 ~1~••.M..a.r..Q...1.~ F~W.,O!l,9!,:I}.:t ~- My, Lore• 1 pt'a;y .f~ a date of mention for further orders. -- Order:~ Mention on 2?/7/2004- for further orders. Lpplicant to be notified. Sgdt Ai Shangwa• J 25/6/2004 27/7/2004 Corrun: PoB• Khaday - DR For Applicant:- Dr. Nguluma Fo.r Respondent:- Mr., Maro Q:!:'CJ ~g_:,1~,.2:- We pray f:)r e mention date·. Pi-eterrr1bly on 6/9/2004. . --- Order:= Mention on 6/9/2004. Sgd: P~Bo Khaday ~ DR 27/7/ioo4- 1, I II I . - I' ~J n Ji - s/cj/2(?0'+ ,· • lo l i 1 Uoiitkm: j ~ Mus hi ~ .Ag DR / t . . 1, Fo.r Il.pplicant: Dr~ Nguiiifua./ . . . j i Fo~ Respondent: 1 1 •• • i . .~ .. i/'i• . ...\; .,' ~,. 1·:.'.!.~_:_.}_:"..,: R~ ~m~ Ye £{] ~a- ~ ~b.u~:t•ii i ~>-r.: ~:on . ,' . ·,: against the rulin.g of Mr .. J1ugeta ~ ·-RM~ The ~~ is yet to be he-ara by the parti-es have reaeh_ed a 1, • ' ~ compromise in the matter befJre the i~r d~: I They have executed a .comp.rbmise of "Suit agremertt • !1 which has already be.en fili~<l on the Di.atri-c.t...Q(,urt. of· · I marking tlhe ena of their di.spute.. It :1 . is in the li_ght of that e11mpr·omise· that we have filecl jl . a n()tice of11;•·.:,<t·t:~,J.. of the l ap:olication - fQ.'C. ~ $ n . . we pray that the . c011»t .re,b~rd th.9: ~ of Ci"v11. Revision No. -,t~oo; wit-;h i\no ord2rs 0. 0 • to eosts•. M: m'sTRffT ARUSHA -ffflifsTRKR