henry kambenga vs the registered trustees of heres life tanzania mission 2010 tzhc 216 21 october 2010

IN THE HIGH COURT OF TANZANIA AT DODOMA CIVIL REVISION NO. 2 OF 2009 ' (Arising from Miscellaneous Civil Application No. 28 o f 2009 of the' District Court o f Dodoma at Dodoma. Original Civil Case No. 14 of 2003) HENRY KAMBENGA...............................................APPLICANT VERSUS THE REGISTERED TRUSTEES OF HERE’S LIFE TANZANIA M ISSION..................... RESPONDENT RULING S. S. MWANGESI J.: r Subsequent to the ruling that was given by this court on the 21st October 2010, wherein it did grant the application that had been presented before it by the applicant herein for calling the record of the file from the District Court of Dodoma for perusal, the said file, that is Miscellaneous Civil Application No.28 of 2009 has been placed on my table. I have had the advantage ot going through the record in Miscellaneous Civil Application No. 28 of 2009. Therein, it is indicated that the applicant herein had presented an application before the District Court on the 18th September 2009 praying for the court to set aside its order wherein it had ordered ex parte allowing the respondent herein who happened to be the decree holder to proceed with execution of the decree in respect of Civil Case No. 14 of 2003. The other prayer by the applicant in that application was for the court to give him chance of being heard as to why the execution of the decree in the said matter was not to be allowed to proceed. The said application was heard by the court on the 30th September 2009. And upon hearing the learned counsels for the two parties, that is Mr. Njulumi from Njulumi and Company Advocates for the applicant/judgment debtor and Mr. Nyangarika from Nyangarika and Company Advocates for the respondent/decree holder, the ex parte order for execution that had been previously given on the 07th August 2009, was vacated with costs to the judgment debtor/applicant. And the application for the applicant to show cause as to why execution should not be proceeded was set for hearing on the 06th October 2009. On the 06th October 2009 when the application came before the court for hearing, Mr. Nyangarika learned counsel did raise a preliminary ground to the court that because the applicant/judgment debtor had failed to serve them with documents that is, pay-in-slips to show his initiatives that had been taken to pay the decretal sum, then the implication was that he had failed to show cause. He did thus request the court to hold so at that instance, a prayer that was indeed granted by the court despite opposition from Mr. Kidumage learned counsel for the applicant/judgment debtor. The basic reason advanced by the learned counsel for the respondent and sustained by the court was that the applicant had failed to heed to the order that had been given to him by the court on the 30th September 2009 which was that he had to serve the respondent with pay- in-slips which he had used to deposit the payments at the bank in respect of the decretal sum. On the other hand, it was the argument of Mr. Kidumage for the applicant that the order of the court given on the 30th September 2009 was that the pay-in-slips in respect of such payments at the bank had to be produced before the court on the hearing date. With due respect to the learned Resident Magistrate In-charge (Executing Officer) as well as the learned counsel for the respondent, I have failed to see the bases of their contention. My understanding of the order of the learned Resident Magistrate In-charge that was given on the 30th September 2009, wherein he did set aside his ex parte order that had been given on the 07th August 2009, meant that the applicant would be heard on his grounds as to why execution in respect of Civil Case No. 14 of 2003 had not to be proceeded. And the hearing of those grounds from the applicant would be made on the 06th October 2009 which was fixed as the hearing date. Although in the said order of the 30th October 2009 it is also indicated that the applicant was allowed to furnish to the “court” and then the word court has been cancelled and substituted with the word "decree holder”, with relevant receipts if any to show why execution should not proceed, it is my view that those words were iriere tautology. As a date had already been fixed for the hearing of his grounds, no doubt on the said hearing date, the applicant would appear with the necessary receipts if they were available to establish that he was indeed paying the said decretal sum. And at any rate, those receipts had to be furnished in court where he had been asked to show cause and not to any other person or place. Otherwise, if the said receipt were to be furnished to the respondent, then the hearing that had been fixed on the 06th October would be rendered redundant. On the foregoing reasons, it is my considered view that the learned Resident Magistrate In-charge of Dodoma Resident Magistrates Court who is also the Executing Officer was not justified to refuse to hear the applicant on his grounds as to why the execution of the decree in Civil Case No. 14 of 2003 was not to proceed. It is thus hereby directed that he be heard and the order of the court be given depending on the merits of the grounds advanced. Order accordingly. (S. S. MWANGESI) JUDGE 01 - 11 - 2 0 1 0 Date: 21/10/2010 Coram: S. S. Mwangesi, J. Applicant: Kidumage for Respondent: Nyangarika for C/C: R. Mahmoud Order: Ruling read in the presence of Mr. Kidumage for the applicant and Mr. Nyangarika for the respondent this 21st October, 2010. (S. S. MWANGESI) JUDGE 01 - 1 1 -2010