20010828 TZHC Dar es Salaam

✓ IN THE HIGH COURT OF TANZANIA ~Qtl.R ES SALA~ MISCo CIVIL APPLICATION ~73/99 M/S S £s ~:ENTERPRISES APPLICANT Versus i 1. THE PIDPLES BANK OF ZANZIBAR ) I msroNDENT ~. C~AVAN. ) RULING IHEMAt ~ SAID AHMED MHANA ALAMRY, o.bjector 1 has filed an application tinder Section 6 (1) (a) (1) and (IV) of the Foreign Judgment (Reciprocal I • j Enfdrcement ) Ordinance Cap 8 and Order XX! Rule 24, Order XXXVII Rule 1 and Section 95 of the Civil Procedure Code and any other enabling provisions of the Law praying for the following orders: (i) that the registered judgment be set aside and v~cated since the said judgment is not a judgment to which Part 1 applies. (ii) that the judgment·from the Zanzibar High Court whs obtained by fraud. (iii) stay of execution, and attachment and prohibitory order :i..ssued b~ raised as the house on Plot No. 981 CT 186175/61 Upanga Dar es Sal-a.am does not belong to the judgment debtor (iv) a temporary injunction to issue against the respondents, their agents, servants or workmen from auctioning the said house. . ( v) Costs of the application be provided for• The application is supported by an affidavit of Yusuf Kasmir Bwahama· learned Advocate deponing on behalf the objector essentially that the property under reference does not belong to the judgment debtor as he obtained the same through fraud. and that the Decree of the High CoUrt of Zanzibar at Vuga :Ls not such a judgment registrable under Section 4 of Cap 8 of the Laws. • •••••/2 ,.r 2 In the first place I think it Ls safe to observe and hold that wh~ther or· not the judgment of the Zanzibar High Court which is a consent judgment; was obtained by fraud and collusion is ~ot f6f t?~s 9ourt to J~termine. The ch;llerige on the validity ofj th~ sk!d judgm4nt h~ td ~e made in the Zanzibar High C~urt, the originating Court£ On_my par,t the relevant point of consid~ration i~ ~hethe~ the registered judgrrlent can; be set aside and ·vaclii.ted due to the dl'act that it has been registered tmder the wrong citation ~f the laid, ie &lcti<bn 4 of Cap 8 of the Laws of Tanzania instead_ of the 1 Judgmeilts . ' ltjctensi~n drdinance Cap 7 of the Laws. Upon careful exrunihation df the t~o Ordinandes; I am satisf{ed that the correct citation is Section 4 of Cap 8 of the Laws pertaining to Foreign Judgments (Recep~ocal Enf6rcement) dealing with registration of fo~e:i.gn judgments in terms of Section 4 (1) which provides:- II A person, being a judgment creditor under a judgment to which Part 1 appli<:>S may apply to the High Court at any time within six years after the date of the judgment or, where there have been·proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the High·Court and on any such application, the Court shall, subject to proof of the prescribed matters and to the other provisions of this Ordinance, order the judgment to be registered: Provided that a judgment shall not be registered if at the daie of the applice.tion:- (a) it has been wholly sati:sfied; or (b) it could not be enforced by execution in the country of the original court o" ; ±n tetms of the Foreign Judgments (Reciprocal Enforcement) {General Application) Order - 6N Noc 8 of 19,6 it is provided the.t Pa.rt 1 of the Ordinance shall apply to tho United Kisgo.om and to judgments obtained in the Courts of the Uni-led Kingdom and of the said dominions and "io British protectorates or protected State and to territorities in respect of which a manda"ie has been accepted JY Har Majes-.y and to 2~ents • . . F obtained ~ the courts of th~~~ ..EE9tectera!h~..i.J.'~.Q!.~.2.t~<!.,_ptat~ S)_r tez:ri tor.~..!.. Zanzibar as correc ·: ly pointed out l : Mr. Chuwa learned advocate falls under the protected territories the1, ...... 0 ./; f, • • - I. 3 On the other hand I find it difficult to ae/ree with the submission of Mr. Bwahama. learned Advocate that Cap •.7 is the relevant law applicable for the simple reason that the Ordinance basically caters for transfer and execution of decrees obtained in the High Courts of Kenya, Ue;kida; Malawi dr Zanzibar. Th.e Ordinance further deals with execution of warrants after endorsement. There fa certainly a marked difference in the import of the two,Ordinances. It follows therefore that the applice.tion to set aside and vacate the order of registration of the judgment of the High Court of Zanzibar at Vuga in this Court under Section 4 of Capo 8 f~ils. And sine~ I have held that the issue of fra-..d -respecting that judgment_ ;i.s the province of the High Court of Zanzibar the originating court,: I dismiss the application before me with costs. I so order. So Ihema JUffiE Ruling delivered before Mr. Bwahama learned Advocate for the Objector/ Applicant and holding the brief of Mro Chuwa learned Advocate '.for Respondents. i ..,.. t(\L ,,\.·.(· S. Ihema JUffiE 28/08/2001