ms hedico another vs exim bank tanzania 2 others 2022 tzhccomd 264 31 august 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL REVIEW NO. 4 OF 2022 (Arising from Commercial Case No. 60 of 2015) BETWEEN M/S HEDICO..................................................... lstAPPLICANT HAPPY KAITIRA MAGULLA................................ 2nd APPLICANT VERSUS EXIM BANKTANZANIA..................................... lst RESPONDENT BENSON YEKONIA SWAI T/A KISHE AUCTION MART...................................... 2nd RESPONDENT EPHRAIM SAMWELI MAGULLA.........................3rd RESPONDENT Date of Last Order: 4th July, 2022 Date of Ruling: 31st August, 2022 RULING MKEHA, J: The applicant in this application is moving the court to vacate a prohibitory order issued on 25th February 2022. The said order was 1 | Page issued under Order XXI Rule 53 (1) of the Civil Procedure Code against a property on CT No. 113294, Plot No 1829/5 at Msasani Penisula, Dar es salaam. The application for review is made under sections 78, 95, 68 (e), Order XLII Rules 1, 2 and 3 of the Civil Procedure Code as well as Rule 2 (2) of the High Court (Commercial Division) Procedure Rules. The grounds upon which review of the court's order is asked are set out in the Memorandum of Review. They are as hereunder: l .That, the Hon. Judge erred in law and in fact by issuing a prohibitory order against the pledged collateral security on alluded defaults by the applicants and 3rd Respondents to re-service the loan facility of the sum of TZS 441,000,000 while the same amount has been settled and remained with TZS 225,000,000 currently on repayment processes. 2 .That, it was a mistake and an error apparent on the face of record to grant a prohibitory order while being discovered (sic) that the said Certificate of the Title pledged as a collateral security in favour of the l51 respondent by itself has a prohibitory clause. 2 | Page 3 .That, the prohibitory order issued by this court has been erroneously issued against a dead person who is ABDALLAH MZUNGU WANZALA while it was communicated about his demised (sic) 4 .That, the Hon. Judge granted the Prohibitory Order on account of mistake by not giving the applicants the right to be heard or in the absence and without notice to the applicants and 3rd Respondent. The application was argued by way of written submissions. Mr. Barnabas Lugua learned advocate represented the applicants. Mr. Roman Masumbuko learned advocate represented the respondents. Mr. Lugua learned advocate submitted in respect of the 5th ground of review that, since there was a controversy regarding the outstanding loan amount, the court ought to have heard the parties over the controversy before issuing the prohibitory order. The learned advocate combined the first and second grounds of review in the course of submissions. He submitted in respect of these grounds that, it was wrong on part of the court to issue a prohibitory order in respect of a property which is not attachable. According to the learned advocate, conditions attached to the Title Deed in question are to the effect that, the mortgaged land is not to be offered for sale, transfer or any 3 | Page transaction which may result into transfer of the land or building therein within 25 years from the date of commencement of the right. The learned advocate finally submitted that it was wrong on part of the court to proceed with hearing of the application for execution in the absence of the guarantor. Mr. Roman Masumbuko learned advocate submitted in reply that, the Judgment Debtors did not properly move the court to record satisfication of the decree in terms of Order XXI Rule 2 (2) of the Civil Procedure Code. In his view, the court could not offer what the judgment debtor failed to pursue through known procedures. As to the prohibitory clause in respect of the land against which the prohibitory order was issued, the learned advocate submitted that, the conditions attached to the Title Deed in question were in existence even when the judgment debtors opted to mortgage the property. In his view, it was too late for the judgment debtors to argue that the mortgaged property would not be subject to the remedies available to the mortgagee. The learned advocate added that the deed of settlement executed by the parties on 29th March 2016 contained a clause allowing sale of the property in the event the judgment debtors fail to pay. 4| Page The issue is whether the application raises grounds of review. Whereas the judgment debtors were invited to show cause as to why the application for execution should not be granted there was no cross application asking the court to certify whatever satisfaction of decree had been done by the judgment debtors. It is my holding that in the circumstances, it would be improper for the court to decide upon an issue in respect of which no evidence was brought by the parties as it would have been, had the judgment debtors filed a proper application as instructed under Order XXI Rule 2(2) of the Civil Procedure Code. It would seem that, the learned advocate for the judgment debtors expected another hearing date after the court had ruled out that the judgment debtors failed to show cause why the application for execution ought not to be allowed. However, the practice is, once a judgment debtor is held to have failed showing cause, the court proceeds to issue the execution orders depending on the nature of the mode of execution sought by the decree holder. That is what the court did in this case. Therefore, as far as the l5* and 4th grounds of review are concerned, I find no apparent error on the basis of which this court's order can be reviewed. 5 | Page The purpose of review is to re -examine a decision with a view to amending or correcting an error which had been inadvertently committed which if not considered will result into a miscarriage of justice. See: ISAYA LINUS CHENGULA (as administrator of the Estate of the late LINUS CHENGULA) Vs FRANK NYIKA (as Administrator of the Estate of the late ASHERI NYIKA) CIVIL APPLICATION NO.487/13 OF 2020, CAT AT IRINGA. In the present application, Mr. Lugua learned advocate submitted that, the property against which the prohibitory order was issued is subject to conditions of not being sold or dealt with in any transaction which would lead to its transfer within 25 years from the date of commencement of the right. Mr. Masumbuko learned advocate was of the view that, since the judgment debtor was aware of the conditions before offering the property for mortgage in 2013, it was too late to come up with that defence during execution stage when the mortgagee was about to exercise her remedy of sale. All these arguments ought to have been made before the court made its decision on whether to grant the application for execution or not. This is because, the argument invites the court to decide another issue of whether the property sought to be attached is attachable or not. The same cannot be decided before 6 | Page vacation of the former order of this court granting the application for execution. It is for the foregoing reasons I am compelled to lift the warrant of attachment against the judgment debtor's property on CT No. 113294, Plot No 1829/5 MSASANI PENISULA DAR ES SALAAM until when the remaining issue as indicated hereinabove will have been decided. The warrant of attachment/prohibitory order be lifted. The parties are invited to appear in Commercial Case No. 60 of 2015 so that they can address the court through execution proceedings on whether the property sought to be attached is attachable or not. The application succeeds to such a limited extent. No order is made as to costs. Dated at DAR ES SALAAM this 31* day of August, 2022. JUDGE 31/08/2022 7 | Page Court: Ruling is delivered in the presence of Mr. Roman Masumbuko learned advocate for the lst and 2nd Respondents. 31/08/2022 8| Page