Amended Ruling Kefa Manase Kijo

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMMERCIAL DIVISION)

AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 48 OF 2025 (Arising from Commercial Case No. 32829 of 2024) KEFA MANASE KIJO …………..………………………………………….. APPLICANT

VERSUS ARKADIA LIMITED ………………………………………………………. RESPONDENT

RULING Date of last order:16/01/2025 Date of Ruling:21/1/2025 GONZI, J. The application was brought under Order XXXVI Rules 6(1) (b), (2), and (3), 7, (1), (2), Order XXXVII Rule 4, Sections 68 (c), (e) and 95 of the Civil Procedure Code, CAP 33 R.E 2019. The Applicant brought the present application seeking for the following orders against the Respondent: 1 EX-PARTE: 1. This Honorable Court be pleased to dispense with the requirement to serve notice to the Respondent on reasons in the supporting Affidavit.

2. That, this Honorable Court be pleased to temporarily restrain the Respondent, its Agents, Servants, or any person, natural or artificial acting under the Respondent’s instructions, or under instructions of any other person other than the Court, from removing, withdrawing, and/or transferring monies deposited in CRDB Bank Account No. 1950920578000 in the name of ARKADIA LIMITED the Respondent herein, pending hearing and determination of the Application Inter Parties. INTER PARTIES: 1. That, this Honourable Court be pleased to order the Respondent to show cause, why the Respondent should not furnish security, pending hearing and determination of the main suit in Commercial Case 32829 of 2024 instituted by the Applicant/Plaintiff for breach of Contract. 2 2. That, in the event the Respondent fails to show cause according to the Court’s directives, this Honourable Court be pleased to Order the Respondent to produce security whose monetary value is in region of EUR 6,400,000 equivalent to Tanzanian Shillings17,715,200,000 which is the claim filed by the Applicant/Plaintiff in the main suit, pending hearing and determination the said main suit, the Commercial Case No. 32829 of 2024.

3. That, in the event the Respondent fails to produce security, this Honourable Court be pleased to issue and Order for Attachment of the Bank Account No. 1950920578000 registered at CRDB Bank PLC in the name of ARKADIA LIMITED, the Respondent herein, pending hearing and determination of Commercial Case No. 32829 of 2024.

4. Costs of this Application.

5. Any other reliefs this Honorable Court will deem just and fit to grant. On 06/01/2025 the Court directed the Applicant to immediately effect service of the Application upon the Respondent. It was effected by Court 3 Process Server, one ABDULAZIZ OMARI MBAGHA, as evidenced through his affidavit of proof of service. On 16/01/2025 when the matter was scheduled for hearing the Respondent had neither filed a Counter Affidavit nor did she enter appearance, thus the application was ordered to proceed exparte the Respondent and the hearing was by way of written submissions. From the affidavit in support of the application which was deponed by the Applicant, the facts which come out are that the Applicant has filed in this Court Commercial Case No. 32829/2024 against the Respondent wherein the Applicant is claiming for EUR 6,400,000.00 the equivalent to TZS 17,715,200,000/= for breach of contract by the Defendant as well as interests on the stated sum at commercial rate per annum from the date of Judgement/Decree to the date of final satisfaction of the Judgement/Decree. Also the Applicant is claiming for general damages and costs of the suit. The Applicant enjoyed the services of Mr. Eliya Rioba, Learned Advocate. Mr. Rioba submitted only with respect to the prayer of attachment before judgement and abandoned the other prayers made in the Chamber Summons. He reiterated that the

objective of the prayer for attachment 4 before Judgement is to effect the principle of equity between the parties to the main suit to this Application and to assure the Applicant with an effective execution of decree in the event the Applicant is successful in the main suit. He referred this court to page 1 of Exhibit KMK – 1 of the Affidavit in support of this Application, specifically in the Recital Clause. He submitted that the Respondent is wholly owned by three (3) Italian Citizens who have no other asset in Tanzania other than a bank account registered at CRDB Bank PLC for purposes of receiving payments from the Government of Tanzania thus in the event the Applicant herein is successful in the main suit, the only assurance of an effective execution thereof is an attachment of the said bank account. Mr.Rioba, Learned Advocate further submitted that the law under Order XXXVI Rules 6 and 7 of the Civil Procedure Code, Cap 33, (Revised Edition 2019) provides for an attachment before Judgment and cited the Case of Flipos Gebremedhin v. Asmara Transport Company Limited, (Misc Commercial Application No. 189 of 2023) 2024 TZHCComD 2 (31st January 2024) at page 10 where this Court laid down the elements to be 5 proved by the Applicant for the prayer of attachment before judgement to be granted as follows; “1. There must be reasonable chance of a decree being passed in the suit against the defendant, that is to say the Court should be satisfied that the Plaintiff has a prima facie case.

2. The Plaintiff should also establish that the defendant is attempting to remove or dispose of his assets; 3. The Plaintiff must establish that the remove or disposal of the assets by the defendant is being done with the intention of defeating the decree that may be passed against the defendant by obstructing or delaying its execution; 4. The Order should not be granted on mere assertions and speculation without cogent and tangible evidence; 5. That the Respondent has first to be given an opportunity to show cause why he should not furnish security before an order for attachment of his property before judgement can be eventually made; 6. The Applicant is also required to specify the property required to be attached and the estimated value thereof, unless the court otherwise directs” 6 With regard to the first element of existence of a prima facie case. Mr.Rioba, Learned Advocate, referred to The Black’s Law Dictionary, 11th Edition, at page 1441 where the term Prima Facie Case was defined as; “The establishment of a legally required rebuttable presumption.” He further referred the case of Republic v. Everatha Salezi Sungura (Criminal Session Case No. 32 of 2022) 2024 TZHC 6165 (1 July 2024) at page 4 where the Court stated thus: “… a prima facie case, also known to the law, is a cause of action or defence sufficiently established by a party’s evidence to justify a verdict in

his or her favor……..” Mr. Rioba, submitted that the Application at hand emanates from Commercial Case No. 32829 of 2024. The claim of the Plaintiff/Applicant in the said Commercial Case is duplicated in the Affidavit where the Plaintiff claims for compensation against breach of contract by the Defendant/Respondent herein. From paragraph 2 to 10 of the Affidavit the Applicant testified the relationship he had with the Respondent, the nature of their engagement, the performance of the Contract by the Applicant, and the results of the said performance as per paragraph 9 and 10 of the 7 Affidavit. Further at paragraph 12 of the Affidavit, the Applicant demonstrated a triable issue which promoted the institution of the Commercial Case No. 32829 of 2024, that is, the Respondent decided to offer the Plaintiff/Applicant a new offer which the Applicant refused as the consideration was way lower than the original consideration as previously agreed in the contract. Mr.Rioba further submitted that the Applicant is only required to prove the existence of a triable issue, as it was stated in the case of Abdi Ally Salehe v. Asac Care Unit Limited & 2 Others, Civil Revision No. 3 of 2012 the Court of Appeal at page 8 stated thus “……. So, at this stage the court cannot prejudge the case of either party. It cannot record a finding on the main controversy involved in the suit,nor can genuineness

of a document be gone into at this stage…….” Mr. Rioba, submitted on the second, third, and fourth elements jointly by establishing that the Respondent is about to remove or dispose of assets; that the removal or disposal of assets is done with the intention of defeating the decree that maybe passed against the Respondent by obstructing or delaying its execution; and that the Order is not sought on mere assertions and speculations without cogent and tangible evidence. 8 In his submissions, Mr. Rioba, Learned Advocate, reiterated that the three elements are substantiated with the evidence of the Applicant himself in his testimony through the Affidavit filed in support of this Application whereby at paragraphs 14 and 15 the Applicant stated that he had a phone conversation with Respondent’s representative discussing the new offer/contract for the Applicant. After his refusal to the new offer, the Respondent in an altercation with the Applicant, informed him that they intend to remove all monies deposited in the bank account in Tanzania to a bank account not known to the Applicant and out of the Jurisdiction of this Court for the sole purpose of defeating any execution that may be initiated against the Respondent. Mr.Rioba, Learned Advocate, submitted that, further, the Respondent not only intended to remove the said monies, but actually did transfer an amount close to Euro

600,000 from the said account to a different account known to the Respondent. He cemented that as a general rule an Affidavit is a substitute of an oral evidence as stated in the Case of Uganda v. Commissioner of Prisons Ex parte, Matovu (1966) E.A. 514 where the East African Court of Appeal stated as follows: 9 "As a general rule of practice and procedure an affidavit for use in Court, being a substitute for oral evidence, should only contain statements of facts and the circumstances for which the witness deposes...” Mr.Rioba, Learned Advocate, submitted that the Respondent was served with the Initial Order and copies of the Chamber Application, both physically and through electronic means, and yet decided neither to appear in Court nor to file their Counter Affidavit to dispute the Applicant’s claims. He argued thus the Affidavit of the Applicant is not challenged by the Respondent and the Applicant’s testimony therefore proves that the Respondent intended to remove the only asset they have within the Jurisdiction of this Court for the sole purpose of defeating the execution of the decree of Court that may be passed against the Respondent. On the fifth element, Mr.Rioba, Learned Advocate, submitted that in law, the Respondent has first to be given an opportunity to show cause why he should not furnish security before an order for attachment of his property before judgement

can be eventually made. He argued that the Respondent was given such an opportunity when he was served with the Initial Order of the Court together with the Chamber Application. However, the Respondent did not file any counter affidavit nor appear before the court thus the 10 Respondent decided not to exercise her right to be heard before this Honourable Court. On the last element, Mr.Rioba, Learned Advocate, submitted that the Applicant is required to specify the property to be attached and the estimated value thereof, unless the court otherwise directs. He submitted that at pages 13 and 14 of the Affidavit, the Applicant clearly stated the asset of the Respondent to be attached that is the bank account number 1950920578000 registered with CRDB Bank PLC in the name of the Respondent with an estimated value of Euro 10,000,000 received from the Government of Tanzania. He concluded by praying for this Honourable Court to grant the Applicant with the Order of attachment of the Banck Account No. 195092057800 before Judgement, with costs, pending hearing and determination of the main suit. After hearing the submissions, I now proceed to determine the application in line with the Applicable Law. The the Civil Procedure Code provides: Order XXXVI Rule 6(1): "Where, at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent 11 to obstruct

or delay the execution of any decree that may be passed against him - (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant to appear and show cause why he should not furnish security 7(1) where the defendant fails to show cause why he should not furnish security....... the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached." When faced with similar situation, this court in the case of Flipos Gebremedhin v. Asmara Transport Company Limited (supra) provided six conditions to be considered before granting an application for attachment before Judgment as reiterated in the Counsel’s submissions above. I have taken time to consider whether the Applicant in the present application has a prima facie case as against the Respondent? A prima facie case for the purpose of the present application, is essentially a bona fide contention between the parties or a serious question to be tried. This application emanates from Commercial Case No. 32829 of 2024. At page 12 12 of the Affidavit, the Applicant demonstrated what transpired between the Applicant and the Respondent leading to the dispute between them. The Applicant alleges that the contract between them was not honoured by

the Respondent as the Respondent, after the Applicant had discharged his contractual obligations as agreed, decided to offer the Applicant a lower amount contrary to what had been agreed upon and which the Applicant refused. There is between the parties herein a dispute founded on breach of contract. This is indeed a triable issue which establishes the prima fascie case that is among the pre-conditions for issuance of an order for attachment before Judgment. Next for my consideration are three requirements which I have clubbed together as they swing around common facts in this application. These are the need for the Applicant to establish that the defendant is attempting to remove or dispose of his assets; the need for plaintiff to establish that the removal or disposal of the assets by the defendant is being done with the intention of defeating the decree that may be passed against the defendant (by obstructing or delaying its execution); and the requirement that the order should not be granted on mere assertions and speculations without cogent and tangible evidence. 13 According to Paragraph 14 of the Applicant’s Affidavit, he stated that the Respondent’s bank account No. 1950920578000 has received payments from the Government of Tanzania, to the tune of EUR 10,000,000. However, in phone conversations he had with the Respondent’s representatives, after his declining to accept

the new offer, they informed him of their intention to remove all the monies deposited in the aforementioned account to a bank account out of the Jurisdiction of this Court and further indicated that, any pending payment they have from the Government of Tanzania may go through a different account not registered with any bank in Tanzania. It is also stated by the Applicant in his affidavit that the respondent has already transferred an amount close to EUR 600,000 equivalent to TZS. 1,472,620,401.60 from the aforementioned CRDB Bank Account to another account known to the Respondent. It is the general rule that an Affidavit is a substitute of oral evidence and that where a factual allegation made under oath is not disputed by way of counter affidavit by the other side, the same is deemed to be proved. Since there is no Counter Affidavit to dispute the Applicant’s testimony, thus the Applicant’s testimony proves that the Respondent intends to remove the only asset they have within the 14 Jurisdiction of this Court with the sole purpose of defeating the execution of decree of Court that may be passed against the Respondent herein. As for the fifth element that the Respondent has first to be given an opportunity to show cause why he should not furnish security before an order of attachment of his property before judgement, I concur with Advocate Rioba that the Respondent was given

an opportunity when she was served with the Initial Order of the Court together with the Chamber Application however she failed to appear before the court nor file a counter affidavit, hence waiving his opportunity to show cause. The last element is that the Applicant is also required to specify the property required to be attached and the estimated value thereof, unless the court otherwise directs. At Paragraphs 13 and 14 of the Affidavit in support of this Application, the Applicant clearly states that the asset of the Respondent is the money in the bank account number 1950920578000 registered with CRDB Bank PLC in the name of the Respondent with the estimated value of the Euro 10,000,000 received from the Government of Tanzania. I find that the Applicant has on the balance of probabilities satisfied all the requirements for the grant of an order of attachment before judgment. 15 The application is therefore granted and an order for attachment before Judgment is hereby issued in respect of bank account number 1950920578000 with CRDB Bank in the name of ARKADIA LIMITED to the extent of EUR 6,400,000.00 an estimated equivalent of TZS 17,715,200,000/=. Costs of the application shall be in the cause. It is so ordered. A. H. GONZI

JUDGE 22/01/2025 16