19970404 TZHC Dar es Salaam

~ I I<~· \ ·, . -, IN HIGH 'coURT OF TAN:~ANiK . ,.., NJ • ._/.'~02/1990 ·, • . .. . •'· \Tf:_~!~~3U S·." ., . ,. -~ R U r -I·- 1\ G . l\A.J_ll<I. ·--~--------· .. . ( ' '\ -, '\ ~ :~ • ; ' ~ . r-·~ ~· • .... ,. j - --J, , \ -~ ,.- This is a,n; ap .1icati9n by tt;e aPPl}~af1:t JilL..li::JuiJ..p,8..Q._h.001) J:.(lrl.uJ/s TURE for rai~.fr,g the att~chr.:.entJ•~fder trade . ·by this court . ,. on 11th . Vay ,1994 and :for stayi:rig the irrtencLed sail?> o'rt.' the house op Plot f ' ,; No. 72 Bl.ock 47 Kijitonyama Are2. 11. It has...,b,een,rr3.de under sectio1l .,_ ' 4B (1) (e) of the Civil Procedu~~e '.'I, Code 19<<. ' The gist o ":the I\latte_:r· is that the rE;spondent the .EAII0h,;~.llAfii . ... OF COI''hi~.}lCE loaned. the applicant varrious amounts of rconey which wasto be refunded w:Lthin an agreed period. On 12th July 1 1990 the· respondent sued the appl~Lcant for refund qi that rooney with interest • . •,.•' ,,. ' On_ 11th flfarch 1991 the• appl.icarrt through i t.s letter Ref. Ih ,KWF,/ . 59/90/91 dated··,11 th r;arc-µ/ 1991 adn::i tt,t2d ·, the clail!' to a true of shs.24,400,000/= and prorrised.ito pay in the follmving ordef~- 1 1~ '-'<. ~ 1. 1st payrrent~-·;:_ilppril 9 ~ . : - t99i- sh$_·. 7 500 ,000/=·~ . 9 ~ be paid in ·12 m.onths 'equal rnonth. r. 3. I.nterest accruing ~n· the proce.ss to 0e pai<::i; f.rbir:i·' $1.t-;i.l.y deposj.b ., ... . \ iri:-the account from'- norrr,·a1 busine:-.;s incorr>r::cs. . .,. . ... It would appea th,:: r.espondent accepted the adrrissio.n and the proposed w·ade;1df'.LpayJ'Pent. l .. 2 However the applicant did not abide to its proJ11ise. O_n 15th October 199·i the respondent :filed an af.fidavi t for proof T"'akirig the adrritt::d aJ110Unt of shs. 2l-1-., 400 ,ooo/~ as principa,l . . On 15th 1/'ay ,1992 ·the respondeht was awarded judgment for the Princi·pal arrount \i-rith interest and costs again.st the :3.I"J)Licarit. By 10th August~ 1992 the ap licant had paid m1othing. By then ::.· :1-t0 the total arrount ho.d ,:,_cc:rued to shs. 41,52G,OOO/=. The rf?spondenc applied for execution of the decree by attaching the ap.-:ilicant' s properties. The application was granted and the order applied for was :~nnnted on 12th Au<:ru.st,1992~ But on 14th Sept2rrber 1992 the applicant applied for raising the attach~ent order. On 29th June 1993 by consent it was agreed and record;ed by the court that the applicant would pay shs. 20,000,000/== on 15th July ,1993 and thereafter to pay the balance of the decreta1: amount by monthly instalJ11ent;:, of shs.3 1 500,000/=_payable on or before the end of every month el.:f'ective frorri P.ugu,st,1993. Th~ a-i.:;tachJY'ent order was rais0~d but the ap:0licant was ordered to rreet the costs thereof. By 11th rnay 1 1994 the applicant had paid only shs.20,000,000/ The respondent applic?d for re - attachrnent of· the applic:-..:nt' s prop ~ ties. The apr:lica-hion was gran~cec;l and a re- attachrrent order was ordered to be carried out. r·rore than a year later, th::1t is on 11th Julysl995 the apr.;L ~- - '' cant filed this applic.·ition for /'aising the re-attachr::ent order ordered on 11th Eay,1994 and fer staying.the sale of th2 house wh :h had been attached. 'l'tw main gr;ound being that the applicant cc)uld not abide to;i, its promise as it tools for business.were in the ha1 of a CO'l:i:rt Broker and tha.t the hcuse attached is not subject to · a-ctachrrenc under section 4o ( 1) (_e) of the Civil Procedure :ode 1~ as it is being_ used for residenti~l purpose by the applicant's Der ctor and his faJY1ily. oo•o•3/G• 3 I have deeply considered the grounds raised by the applicant. Bu.t with due respect to the applj -::ant I s 11:.-E1J'rW1i counsel Mr. Kashumbl._ i this application rnust fail for the following reasons:-- F_ir.st}:.-y it : . time barred as per para 21 Pai't 3 1st schedule of the law of linii t2.·'· tion Act,197'1. There was no leave by this court to file it out of tite. Secondly the applicant is a conipany. A company does not .'- 1_-..;T. sleep. It does not require a residential house. Section 48 (1) ( e) CPC applies only where the judgrrent debtor is a person and the house concerned is hi's residential house. The applicant has merely everred that the hous.e attached is used by the applicant's Director- as his residence and that it is his personal property. There is nc, any docu111ent showing that . it is his personal property and that it is not concerned '✓<Ti th this case. It is-upon the above reasons that I disniiss this aprlication with costs. Execution of the decree to proceed as ordered by this court on 11th ~ay,19940 n If the applicant made some paywents subsequent to that order, execution will proceed propartionately. . /<L--\_ I· S/1\J. KAJI JlJDGE 4/4/97 Court: Ruling has been delivered in the presenee of ffr. Kashumbug-.... learned counsel for the applicant and ffrs. Orio learned courts el· for the respondent this 4th day of April~l997. S. N. RAJI Jl!.QGL· . 4/4/97 ;..