KIRIBO 2 FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CIVIL REVISION NO. 32404 OF 2024 (Arising from the decision of the Resident Magistrate Court of Geita in Execution No. 26689 of 2024 before Hon. Waane-PRM.) M/S KIRIBO LIMITED--------------------------------APPLICANT VERSUS THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND-----------RESPONDENT RULING Date of the last order: 30 January 2025 Date of the Ruling: 02 April 2025. K. D. MHINA, J. The parties herein are M/S KIRIBO LIMITED and the NATIONAL BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND, as the applicant and respondent, respectively. The applicant has preferred this application for revision under the certificate of urgency by way of chamber summons under section 79 (1) 1 and 95 of the Civil Procedure Code, Cap 33 R: E 2019, seeking the following orders; i. This Honourable Court may be pleased to call for and examine the records of proceedings of the Resident Magistrates’ Court of Geita at Geita in Miscellaneous Civil Application No. 26689 of 2024 and revise for the purpose of satisfying itself as to the correctness, legality or propriety of the ruling and/or order dated 29 November 2024. ii. That upon revision, this Honourable Court may be pleased to revise or set aside the ruling and order of the Resident Magistrates’ Court of Geita at Geita in Geita in Miscellaneous. Civil Application No. 26689 of 2024 dated 29 November 2024 iii. Costs be provided for; and iv. Any other orders or reliefs as the court deems fit. The application is supported by the affidavit disposed of by Mr. Michael Peter Mahende, the applicant’s counsel, which expounds the grounds of the application. 2 The grounds for the application, as canvassed in paragraph 9 of the affidavit, are as follows; i) The executing Court erred in law and fact by issuing an attachment order on properties having encumbrances from CRDB bank. ii) The executing Court erred in fact and law by ordering an attachment of properties that do not belong to the judgment debtor. iii) The executing court has erred in law and fact in ordering an attachment against the mode of execution envisaged in a consent decree of the Court in Civil Case No. 000007141 of 2024. In response to the application, the respondents countered it through an affidavit in reply, sworn by Victor William Mhina, State Attorney for the respondent. The application was argued by way of written submissions. The applicant had the services of Mr. Michael Peter Mahende, learned advocate, while the respondent was represented by Ms. Aisha Salehe Mohammed, learned State Attorney. In support of the 1st ground in the application, Mr. Mahende submitted 3 that during the execution proceedings, the execution court was informed that the vehicles subjected to attachment were encumbered by CRDB Bank. He explained that the vehicles in question were registered chattels to secure the loan from CRDB Bank. Registration cards and bank facility letters were submitted in support of the above assertion. Furthermore, as indicated at page 3 of the Ruling, the respondent admitted that the two vehicles were encumbered by the CRDB Bank. Therefore, the executing court erred in both law and fact by issuing an order for the attachment of the motor vehicles, having been informed of the existing encumbrances. Regarding the 2nd ground, Mr. Mahende submitted that the proceedings and Ruling indicated that the vehicles subject to attachment were not the property of the Judgment debtor. He explained that during the execution proceedings, the applicant was able to show the registration cards of the vehicles I.MAN with 4 Registration No. T.331 CCD, Toyota Land Cruiser with Registration No. T. 305 DQC, FAW with Registration No. 159 CJD and FAW with registration No. T.801 CGW were with the CRDB Bank. However, the executing court proceeded with an order for the attachment of properties that did not belong to the judgment debtor and laid no foundation on the basis of the attachment of the properties. Furthermore, he explained that under Section 48(1) of the Civil Procedure Code, R.E. 2019, the law requires a property that is liable for attachment or sale to be in the name of the Judgment Debtor or over which, or the profit of which, he has a disposing power that he may exercise. Thus, it was incorrect for the executing Court to order an attachment, even after being informed that the title holder was CRDB. On the last ground, Mr Mahende submitted that the order for attachment was inconsistent with the Judgment and Decree. He explained that the consent Judgment in Civil Case No. 7141 of 2024, specifically under article II, the mode of payment stipulated was for Anglo Gold Ashant known as Geita Goldmine (GGM) who was the 5 Applicant client should hold the amount of TZS 134, 827, 080.54 claimed by the respondent total sum of TZS 134, 827, 080.54 from outstanding payment(invoices) for the applicant and pay the same to the respondent. Therefore, that consent decree was supposed to be executed as stipulated. Thus, for the attachment order to be valid, the respondent was required to review or adjust the decree through the court that issued it and then proceed with the execution. On this, he cited the case of Mihayo Maziko Misana vs. Abdallah Mashimba Nzigula, Land Revision no.3 of 2021 HC-Shinyanga (Tanzlii), where it was held that; ” I hold it to be a correct proposition of law that a Court executing a decree is bound by the terms of that decree and cannot go behind them. It is equally true as a general proposition that such Court can neither add to such a decree nor vary its terms." In response, Ms. Mohammed submitted that even if the vehicles were subject to a Bank loan, such encumbrances do not in itself nullify 6 an execution Order. She explained that the key test under Section 42 and Section 48(1) of the CPC was whether the judgment debtor had a legal or beneficial interest in the attached property. However, in this matter, the Applicant had not demonstrated that the vehicles were legally exempted from execution under the law. Furthermore, she submitted Order XXI, Rule 81 of the Civil Procedure Code [Cap. 33 R.E 2019] empowers the executing Court to attach properties belonging to the Judgement debtor regardless of encumbrances, subject to the rights of secured creditors being recognised. Additionally, the applicant did not demonstrate how, if the encumbrances exist, they would impact the execution process or render the attachment order invalid. She concluded on the 1st ground by submitting that if CRDB Bank had any claim over the attached properties, it was incumbent upon the bank, as a charge, to object to the attachment under Order. XXI R. 57 of the CPC, as the Applicant had no legal standing to raise this issue on 7 behalf of the Bank. On the 2nd ground, Ms. Mohammed submitted that before issuing the attachment order, the executing Court considered available evidence, including ownership and possession status, and correctly established that the attached vehicles were legally owned and possessed by the Judgement debtor at the time of attachment. She explained that it is a general principle that ownership of mortgaged property remains with the mortgagor until the mortgagee enforces their security by selling the property. That means that until the mortgagee exercises the right of sale due to the mortgagor's default, the mortgagor retains ownership of the property. On this, she cited Juma vs. Manager PBZ Ltd and others, Civil Appeal 7 of 2002 (Tanzlii) and Peter Zacharia Sarno vs. EFC Tanzania M.EC Limited and Another, Land Case 8 of 2016(Tanzlii). Therefore, although the applicant claimed that the cards were under the CRDB, which was the mortgagee, this still did not make him the owner of the properties, as the Bank had not yet legally sold the 8 properties. Furthermore, she stated that it is a trite law that only a lawful chargee or an interested third party with a legally recognisable interest in the attached property may raise an objection to the execution proceedings as provided under Order XXI Rule 37 of the CPC and elaborated in the case of Mariam Cosmas vs. Roda Jackobo Gwanko, PC Civil Appeal 27 of 2020 (Tanzlii). On the last ground, she submitted that the executing Court was justified in ordering attachment due to default, given the existence of a default clause under Article III of the Deed of Settlement and Consent Judgement. That in case of default, the respondent was entitled to seek alternative execution measures, including attachment of the Applicant's properties. She explained that Order XXI, Rule 10(2) of the CPC allows a decree holder to choose the appropriate mode of execution, including the attachment and sale of the Judgment debtor's properties. 9 In conclusion, she distinguished the cited case of Mihayo Mazuki Misana (Supra) as it involved adjusting an unclear or ambiguous decree, whereas the instant matter involved enforcing an unambiguous default clause. Having considered the chamber summons, its supporting affidavit, counter affidavit and the submissions made by parties, I will start by determining the 1st and 2nd grounds of the application, which are intertwined as both revolve around the issue that the attached properties were not belonged to the applicant and they were under the encumbrances by the third party (CRDB Bank). On these two grounds, the law is clear that where there is an order of attachment or sale, the order is made only on the properties of the judgment debtor. If the attached properties belong to another person or persons (a third party), such person or persons may raise a claim or objection that the property is not liable for attachment or sale. This is per Order. 21 Rule 57(1) of the CPC. The order provides that; 10 “Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects, as if he was a party to the suit”. (Emphasis provided) In objection proceedings, the procedure requires the objector to adduce evidence demonstrating an interest in the property, as outlined under Rule 58 of the same Order. That Rule reads as follows; “The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached”. In Nyanza Distributors Co. Ltd vs. Geita General Stores (1977) LRT n.2. Order 21 rule 58, CPC was interpreted as follows; “the claimant or objector adduces evidence to show that at the time of attachment he had pre-existing interest or was possessed of the property attached” 11 That means possession was construed to imply possession or ownership. From the above, it means that the essence of requiring the person who alleges the property sought to be attached or sold is to ensure that they adduce evidence showing an interest in the property. Therefore, it was incorrect for the applicant to claim that the attached properties did not belong to him or that they were encumbered by the CRDB Bank. It was supposed for a third party to file the objection proceedings to claim possession or raise an interest over the properties based on encumbrances so that the concerned court would decide on the validity of the claim or otherwise. Therefore, the 1st and 2nd grounds of the application have no merit. On the 3rd ground, briefly, at the trial court in Civil Case No. 7141, the dispute between the applicant and the respondent was concluded by a consent judgment. It was settled that the applicant should pay the respondent the decretal amount of TZS. 134, 827, 080.50 in full and at 12 once. It was further agreed that the third party, Geita Gold Mining, the applicant's client, would pay the decretal amount. In case of default, it was agreed as indicated under article III of the consent decree that; ‘’That, this Deed of Settlement shall, upon being filed in Court, have the same effect as a Decree duly made by the Court capable of being executed in the same manner as any other decree of the Court; that in the event of default of any term of this Deed of Settlement, then this Deed shall become enforceable as a Decree of the Court and the usual default clause shall apply”. [Emphasis provided] From the above clause; One, the clause did not oust the applicant’s mandate as a judgment debtor to satisfy the decree in the event of default in payment of the decreed amount, as agreed. Two, the clause imposes a mandate on the decree holder to satisfy the decree in the same manner as other court decrees in the event of default in payment of that monetary decree. 13 In our laws, the modes of execution of the decree are specified under Order 21, Rule 10(2) (j) of the CPC. That rule provides that; “…the mode in which the assistance of the court is required, whether- (i) by the delivery of any property specifically decreed; (ii) by the attachment and sale, or by the sale without attachment, of any property; (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; or (v) otherwise, as the nature of the relief granted may require. Therefore, the mode opted for by the respondent and granted by the executing court was within the law and the mandate of the executing court, given the nature of the decree, that it was a monetary decree. Thus, the decree was executable, and the executing court did not go beyond the terms of the decree as suggested by Mr. Mahende. This is because the consent decree was explicit, and the issue of payment by a third party did not absolve the applicant of their duty to satisfy the 14 decree or prohibited the respondent from applying for execution against the applicant in the event of non-satisfaction with the decree. Consequently, the 3rd ground in the application is also devoid of merit. Flowing from above, all grounds of the application raised in the affidavit are meritless. Thus, the application for revision is rejected, as there is nothing to revise. Consequently, it is dismissed with costs. It is so ordered. K. D. MHINA JUDGE 02/04/2025 15 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 02/04/2025 16