MeriMehi Objection Proceedings

1

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

COMMERCIAL DIVISION

AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 99 OF 2023 MERI MEHI MASONG….……..……..……………………….….….… APPLICANT

VERSUS YARA TANZANIA LIMITED………............………………………… 1ST RESPONDENT LEONARD DOMINICK RUBUYE t / a R UBUYE AGR O-CHEM I CALS SUP P LI ES ………………………………………. 2ND RESPONDENT NOEL ESTATE CO. LIMITED…………………………………………. 3RD RESPONDENT

RULING Dec. 16th, 2024 & Feb. 21st, 2025 Morris, J The applicant filed in this Court the instant objection proceedings by way of chamber summons which is supported with an affidavit of Mussa Kiobya, his advocate. The application is preferred under rule 2(2) of the High Court (Com m ercial Division) P rocedure Rules , 2012 (the R ules ); section 95 and Order XXI rules 57(1) & (2) and 59 of the Civil P rocedure Code , Cap. 33 R.E. 2019 (the CP C ). He, prays for this Court to call, investigate and remove from attachment Plot No. 183 Block B, Tegeta- Kinondoni, Dar es Salaam under CT No. 46284 (the property). 2 The impugned attachment arose from execution of the decree of this Court in Commercial Case No. 29 of 2016 between the 1st and 2nd Respondents. On the other side, only the 1st respondent opposed the application by way of a counter affidavit duly sworn by her Principal Officer, Januari Fabian. The other respondents did not counter the affidavit of the applicant. Briefly, facts relevant to this application as discerned from the parties’ affidavits are to the extent that, the 1st respondent successfully sued the 2nd respondent in this court via Commercial Case No. 29 of 2016 (the suit) for breach of contract. Consequently, the 2nd respondent was ordered by this Court to inter alia, pay the 1st respondent TZS. 727,346,800/46. On appeal to the Court of Appeal, the

above-mentioned decretal sum was reduced to TZS. 281,975,000/=. In consequence, the 1st respondent fruitfully filed in this Court execution proceedings for realisation of the decretal sum. He sought for attachment and sale of the property. Thus, the property was attached following the Ruling and Order of this Court dated 12th May, 2023. The subject attachment prompted the applicant herein to prefer the instant objection proceedings, for the aforementioned reliefs. According to 3 paragraph 4 of the affidavit in support of the application, the main reasons for the objection are that, the applicant married the 2nd respondent since 2010; within which matrimony the couple acquired various properties including the property in the instant matter. As such, it was alleged by the applicant that the property is a matrimonial home of the applicant and the 2nd respondent. Further that, the property was subject to Land Case No. 169 of 2019 (the land case) between the applicant and National Microfinance Bank (NBC) PLC and 3 Others at the Land Division of the High Court. Besides, the affidavit in support of the application unveiled that, in the Land Case the applicant challenged the 2nd respondent’s decision to obtain a loan without a proper spousal consent. However, the land case was dismissed for want of prosecution but there were ongoing appeal processes to the Court of Appeal. The above

grounds were disputed by the 1st respondent in her counter affidavit. It was deposed instead that, she had no knowledge of the marriage between the applicant and the 2nd respondent; and that, she was not aware of the acquisition of property by the said spouses. On this respect, she further averred that, an official search report from the land authority revealed the owner of the attached property to be the 2nd respondent and there was no registered interest by the applicant therein. It was further 4 contested by the 1st respondent that the averments in the affidavit were hearsay as there was no independent affidavit substantiating the same. As to the applicant’s allegation of the pending appeal in respect of the land case, it was contended by the 1st respondent that such case had no connection with the decree in the matter at hand. In addition, the 1st respondent stated that there was no any order of the Court of Appeal of Tanzania staying the execution processes before this Court. Hearing of the application at hand was conducted by way of written submissions following order of this court dated 07.11.2024. The parties complied dutifully. The applicant and 1st respondent were respectively represented by Messrs. Mussa Kiobya and Erick Denga, both learned counsel. The 3rd respondent did not appear in Court though service was duly done to him. Consequently, this matter proceeded in

his absence. As for the second respondent, no submissions from him. Submitting in support of the application, the applicant’s counsel asserted that, according to the applicant’s affidavit together with the attachments accompanying the application, the applicant had interest in the attached property. On this regard, he cited the case of Dorice Keneth 5 R w ak atare v Nurdin Abdallah M ushi and 5 Others , Misc. Application No. 300 of 2019 (unreported), in which it was held that; “In an objection proceeding the executing court has an obligation of investigating the claims to see the objector has proved to have possession or interest in the attached property.” He went on to submit that, the property is a matrimonial home whereby the applicant, the 2nd respondent and their dependent children reside (paragraph 10 of the applicant’s affidavit). For that reason, he maintained that the property is not liable to attachment under section 48(1)(e) of the CPC . In further support hereof, reference was made to the cases of Odilia M karugasha v Selem an K alim be & 3 Others , Misc. Land Application No. 96 of 2021 and M agreth Elias M atias vs. Jacob Chacha R ange and 5 Others , Land Revision No. 12 of 2020 (both unreported). The counsel for the applicant went on to argue that, the deposition under paragraph 10 of the applicant’s affidavit establishing that the property was a residence of the

applicant with her family, was not explicitly disputed by the 1st respondent save for general denial thereto. As such the said facts were deemed admitted by the 1st respondent, he argued. He proceeded to 6 submit that, under paragraph 4 of the applicant’s affidavit, it was undisputed that the property herein was acquired by joint efforts of the applicant and the 2nd respondent in their subsisting marriage that was contracted in 2010 (per annexture LDR-1). As such, he maintained that the applicant being the wife of the 2nd respondent but not being a party to the decree; had an interest in the property to be protected under section 59(1) of the Law of M arriage Act , Cap. 29 R.E.

2019. Regarding the pending appeal against the outcome of the land case; it was submitted that the said appeal proves that the applicant has interest in the attached property. It was further submitted that the livelihood of the applicant and her family is dependent on the attached property. To buttress this position, reference was made to the case of R ashida M usw adik u v R aym ond P astory , Misc. Civil Application No. 49 of 2011 (unreported). Conclusively, the counsel prayed for the Court to consider the fact that the applicant is interested in the attached property and was not party to the suit that gave rise to the attachment order of this Court. For that reason, he further prayed that this Court be pleased to lift the attachment order and the property be excluded from execution proceedings unconditionally with costs. 7 In opposition, the 1st respondent’s counsel commenced his submission by adopting the affidavit of the 1st respondent’s Principal Officer (January Fabian). He then relied on the principle that, the burden of proof that at the date of attachment one had interests in the property lied upon the objector/applicant. On this position, he relied on the cases of K w iga M asa v Sam w eli M tubatw a (1989) TLR . 103 , whereby this Court when interpreting Rule 58 of Order XXI of the CPC held that; “The claimant or objector must adduce evidence to show that at the

date of attachment he had some interest in, or was possessed of, the property attached.” Another case cited in this respect was Equity Bank (T) Lim ited v P rosper R w eyendera & 2 Others , Misc. Land Application No. 356 of 2021 (unreported, at page 6). Therein the Court held that; “…. clearly it is the duty of the applicant to adduce evidence to prove that has interest in the attached property. Also, it is of the Court to investigate such a claim…” From the position of law stated above, it was the defence counsel’s assertion that the applicant miserably failed to adduce evidence to show that the property was a residential house or building occupied by the judgment debtor, herself (wife) and dependent children. To the said respondent, the 8 property was accordingly not excluded from being liable to attachment under section 48(1) (e) the CPC. He further asserted that the applicant failed to prove that at the date of attachment of the property, she had some interest therein as required under Rule 58 of Order XXI of the CPC. Specifically, the counsel argued that there is no affidavit of the applicant, children or the 2nd respondent to prove the applicant’s interest in the attached property or to prove that the attached property is not attachable. He went on to distinguish the cases cited by the applicant [Odilia and M agreth’s cases (supra)] with the instant matter. To him, the

distinction lies on two reasons. One, in the said cases the applicants therein (wives) had affidavits to show their interest in the attached properties while in the present case it is the applicant’s advocate who swore an affidavit; the applicant did not. Two, in the two cited cases, the Court had enough evidence on record while in the instant case the Court was merely invited to decide matters basing on hearsay testimony of the applicant’s affidavit. He made reference to the case of Sabena Technics Dar Lim ited v M ichael J. Luw unzu , Civil Application No. 451 of 2020 (unreported). Therein, the Court of Appeal while making reference to the case of NBC Ltd v Superdoll Trailer M anufacturing Com pany Ltd , Civil Application No. 9 13 of 2002 (also unreported) ruled partly that, “an affidavit which mentions another person is hearsay unless that other person swears as well.” In the same line, further reference was made to Jordan Fungam ali K ilew a v Am ani M gelw a & 8 Others , Misc. Application No. 60 of 2021 (unreported, at page 18) whereby it was held that; “…Since affidavit and counter affidavits are substitute of oral evidence, both affidavit and counter affidavits that mentions another person but the affidavit or the counter affidavit of that person being not attached, that remains to be hearsay that cannot be acted upon by the courts...” Conclusively, the counsel prayed

for dismissal of the objection with costs. In rejoinder, the applicant’s counsel reiterated his submissions in chief. Additionally, he submitted on the issue of hearsay that this Court is functus officio to determine the same as it has already been determined in the case of M eri M ehi M asong v Yara Tanzania Ltd & 2 Others , Misc. Commercial Application No. 99 of 2023 (unreported). On this regard, he cited the case of Bibi Kisok o M edard v M inister for Lands Housing and Urban Developm ents and Another [1983] TLR. 250, whereby it was held 10 that; once a decision is reached and made known to the parties in judicial proceedings, the adjudicating tribunal thereby becomes functus officio. In terms of failure by the applicant and the 2nd respondent to swear an affidavit, it was submitted that not every circumstance demands so. To the 1st respondent, failure by the 2nd respondent to counter the applicant’s depositions hereof meant that the defaulter admitted the facts contained in the applicant’s affidavit. I have carefully considered the respective parties’ affidavits and the submissions herein. The issue for determination is whether the applicant has proved her interest in the attached property. This issue is critical paramount because it is the requirement of law that for an application of this nature to succeed, the applicant must adduce evidence to the satisfaction of the

Court in that regard. That is, the applicant must sufficiently establish that, at the time of attachment, he or she had interest in or possessed the property being attached. This position is in accordance with Order XXI Rule 58 of the CPC ; and case law, K w iga M asa’s case (supra), inclusive. In the affidavit in support of the application, it has been averred that the applicant is interested in the property. The stated basis was that, she is the wife of the 2nd respondent (judgment debtor in the suit). That is, the two 11 got married in 2010 and acquired various properties as well as the property under this matter. This position is according to paragraph 4 of the affidavit. Further, in support thereof, a marriage certificate (annexture MM-1) was annexed. Conversely, this fact has been disputed by the 1st respondent. His argument was that, such averment was hearsay as the affidavit was deposed by the applicant’s advocate as opposed to the applicant. To him, an affidavit mentioning another person, must comprise of the affidavit of that other person, or else it becomes hearsay. Further, the 1st respondent argued that since affidavits of the applicant and the 2nd respondent bear a serious contention in this matter, the averments by the applicant’s advocate in this respect are hearsay thus, the applicant has failed to prove her interest in the attached property. I agree with the

counsel for the 1st respondent in his argument that an affidavit of a person mentioned in another deponent’s affidavit becomes inevitable to resolve the contention before the Court. It is a settled law that, an affidavit which mentions another person enjoins such other person to swear own affidavit to corroborate what is linked to him/her by the first 12 deponent. More so, when such other person is so material in the circumstances of the case. For instance, in John Chuw a v Athony Ciza [1992] T.LR. 233 it was deposed that delay to file the documents in Court was caused by the cashier’s absence from his work station. In declining that reason, the Court was of the view that, as the alleged cashier was so material in that case, his affidavit to prove his absence was indispensable. The philosophy behind this position is straightforward. The disputes in court should be decided on the basis of the weight of evidence. Other cases in that line include, K ighom a Ali M alim a v Abas Yusufu M w ingam no , Civ. Appl. No. 5 of 1987; and Benedict K im w aga v P rincipal Secretary M inistry of Health , Civ. Appl. No. 31 of 2000; I brahim Shaibu Kipande (as adm inistrator of the estate of the late Shaibu Adam K ipande vs. Daniel Lipam bila , Land Appeal No. 133 of 2019 (all unreported). Mindful of the above position of law, the applicant’s advocate in this matter mentioned that the applicant

and the 2nd respondent were husband and wife. Further that, in the said marriage they jointly acquired the attached property in which the applicant and her family reside. Nevertheless, none of the couple did swear any affidavit to that effect. Under such peculiar 13 circumstances, I hold the applicant who is mentioned as having supplied the information about her marriage and residence statuses to her advocate; was so material in line with the pronouncements of the cases cited above. Hence, her own affidavit was critical in the circumstances of this case. The absence of such affidavit, in my view, greatly undermined the integrity of evidence in respect of her claims herein. As aforesaid, the fact that the applicant and the 2nd respondent were wife and husband; and that in their marriage they acquired the property was well covered under paragraph 4 of the affidavit in support of the application. The imperative materiality of the applicant in this regard is not dubious since the deponent was not party to the subject matrimony. He was the legal counsel only instructed to represent the applicant in the matter at hand. Further, it is evident in the verification clause of the affidavit in support of the application that, the deponent obtained the information (contained in paragraphs 4, 5, 6, 7, 8, 9, and 10 thereof) from the applicant. Therefore, the verification clause technically

unveiled that the depositions in the paragraphs under reference were based on the information from the person who was not only available or accessible but also capable of disclosing the 14 subject information as well as instructing and authorising her lawyer to act accordingly (see also, paragraph 3 of the said affidavit). Thus, from the above position it is overt that the deposition under paragraph 4 is the deposition which could be averred or confirmed by the so material person within own knowledge in a separate affidavit. Under this analysis, I likewise find no basis on the applicant’s argument that it was not necessary for the applicant and/ or the 2nd respondent to personally swear the respective affidavits. After all, they are both parties in this matter but they opted not to do so. On this regard, I have also taken into consideration the applicant’s argument that the 2nd respondent’s failure/neglect to swear the affidavit is tantamount to admission of the applicant’s deposition. I find this assertion not well founded in law. If the position remains to be that the applicant was so material in line with her marital and residence status, the alleged admission of the 2nd respondent is equally inconsequential. In other words, such line of defence could have been of utmost relevancy, at least, if the applicant swore her own (personal) affidavit. In the alternative, at the

very least again, the 2nd respondent could have sworn his affidavit averring as such or confirming the respective depositions in the affidavit herein. 15 Another argument from the applicant was that the attached property was a matrimonial home occupied by the applicant and her family thus, was not liable to attachment under section 48(1)(e) of the CP C . This fact was deposed under paragraph 10 of the affidavit in support of the application. From the verification clause and the position of law shown above, this fact (in so far as the habitancy and dwellers therein are concerned) remained wanting for lack of the so material person’s affidavit in such regard. Further, it is my considered opinion that, this kind of objection on the part of the applicant is too general. It is not confined to the objector only. Rather, it also takes aboard the judgment debtor who, when he was summoned by the Court for showing cause as to why execution should not proceed (before the attachment was realised), did not align his defence along the present legal and factual infrastructure. In the matter at hand, it is undisputed fact that this Court issued a Ruling that led to the attachment herein. A copy of the Ruling was attached to the affidavit (annexture LDR- 3). I have taken liberty to go through the subject Ruling. It is apparent that the 2nd respondent (judgement debtor) showed cause by filing

an affidavit with two reasons. One, that the decretal sum had already been paid 16 even before institution of the suit from which the decree was passed. Two, that the property (then) intended to be attached was subject of mortgage with NMB Bank. The ground that the property intended to be attached was a matrimonial home was not raised at all. Such omission, in my view, leads to an obvious inclination that the present allegations by the applicant (though not contested by him) is a technical afterthought scheme which is not justified by any other unambiguous proof. Another contention by the applicant is that, the 1st respondent did not specifically dispute the fact that the applicant and the 2nd respondent were spouses; and that they jointly acquired the attached property. Yet again, since the averment is not from or is not confirmed by the depositions of the person that is so material hereof as aforementioned; I find that the 1st respondent’s omission hereof was not fatal. Nonetheless, the 1st respondent specifically disputed this fact in paragraphs 6, 7, 10, 13, 16 and 21 of the counter affidavit by expressly stating that, he was resisting the alleged marriage and the acquisition of the attached property by the supposed spouses. It was further stated that, as per official search from the land authorities, the owner of the attached property was the 2nd respondent and 17 that the

applicant did not have any registered interest therein. In support hereof, she attached copy of the official search report (annexture YARA-01). For the foregoing reasons and analysis, the issue raised is answered in the negative. The Court hence, holds that the applicant has failed to satisfactorily prove her interest in the attached property. Consequently, the application is disallowed. In the circumstances surrounding this matter, I desist from awarding costs. It is so ordered. C.K.K. Morris Judge February 21st, 2025 18 Ruling delivered this 21st day of February, 2025 in the presence of Mr. Mussa Kiobya for the applicant and also holding the brief of Messrs. Erick Denga and Michael Mkenda, learned Counsel for the 1st and 2nd respondents respectively. C.K.K. Morris Judge February 21st, 2025