Civil Revision 20780 of 2024 Ruling MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA CIVIL REVISION NO. 20780 OF 2024 (Arising from the Application for Execution Case No. 10568 of2024 and originated from Civil Case No.13 of2023) MUNTAZIR S/o SEIFUDDIN KASSAMIA...................................... APPLICANT vErsus MSELEM S/o NASSOR...................................................... 1st RESPONDENT DAWOOD s/o GHORI...................................................... 2nd RESPONDENT

RULING 10 December, 2024 & 20 February, 2025 MRISHA, J. The revisional application at hand, was initiated suo moto by the Court through the egistrar on the directions of the Judge In charge of the High Court Sumbawanga Registry, and consistent with the provisions of section 79 (1) (c) of the Civil Procedure Code [Cap 33 R.E 2022]. Its commencement was a response to the complaint preferred by Judgment debtor (the applicant) in what he considered to be procedural irregularities on 1 the part of the executing court which is the District Court of Sumbawanga at Sumbawanga, in the course of dealing with Application for Execution Case No. 10568 of 2024 henceforth the Execution Application which originated from Civil Case No.13 of 2023. The parties in those proceedings are Mselem Nassor and Dawood Ghori, the Decree Holders, and Muntazir Seifuddin Kassamia, the Judgment Debtor who in this application appears as the Applicant and Respondent respectively. The application for execution filed by the decree holder, intends to execute the Consent Judgment in Civil Case No.13 of 2023. The complaint was brought to the attention of this Court vide a letter dated 5th August, 2024; then in compliance to the directions of the Hon. Judge In Charge, the Deputy Registrar escalated and/or file the Revisional Application with the Court, as stated above. In order to have a clear picture of this case, I

will briefly narrate its historical background to understand better the facts and sequence of events leading to the execution application, and finally this revisional application. The Decree holder sued the Judgment Debtor for breach of contract for supply of shop goods. The decree holder claims Tsh.232,000,000/= from the Judgment debtor as a payment of goods, general damages for breach of 2 contract, payment of Tsh.23,200,000/= being damages for loss of expected earnings/loss of profit at the rate of 10% of principle sum interest and costs of the suit. When the matter was scheduled for Final PTC, the parties decided to settle it amicably and a settlement deed registered and parties obtained a consent Judgment on 25th April, 2024. Despite that, the Judgment Debtor failed to honour the Deed of Settlement entered on 25th Ap ecree holder decided to lodge an Application for Execution No.10568 of 2024 which was heard by the Taxing Officer. The :er ordered the Judgment debtor to be arrested and committed to prison as a Civil Prisoner for a period of six months probably, as he consent judgment At the hearin f the ma it Muntazir Seifuddin Kassamia was absent, while the respondent appeared in person, and represented by Mr. Peter Kamyalile, learned Advocate. Before commencing to conduct hearing, the Court satisfied itself that the applicant was served with a summons to appear and the

illegality claimed on his latter It also satisfied itself that from 05.09.2024, 24.10.2024 the applicant was present, on 18.11.2024 the applicant filed notice of absence and the Court adjourned the matter up to 05.12.2024 for hearing, but on the later date the applicant was absent without notice. The matter was then adjourned until on 3 10.12.2024. However, for reasons known to the applicant, he did not appear in court. Nor did he file a notice for his absence. The respondents’ learned Advocate, Peter Kamyalile prayed the matter to be heard in absence of the applicant. Since the proceedings were instituted by the Court suo motu, this court ordered the matter be heard in his absence. In his submission, Mr. Kamyalile argued that the proceedings of the application for Execution were properly made in accordance with the position of the law. To support his argument, he cited the case of The Grad Allience Limited v. Mr. Wilfred Lucas Tarimo and 4 Others, Civil Application No. 187/16 of 2019 and The Grad Allience Limited v. Mr. Wilfred Lucas Tarimo and 4 Others, Civil Application No.229 of 2020. He further submitted that when the application for Execution was scheduled for hearing, the Judgment debtor was represented by Mr. Deogratius Sanga, learned advocate. However, Mr Kamyalile argued that the execution order had been issued in the absence of the decree which is to be executed.

He concluded by leaving the court to decide on issue of absence of decree. I have carefully considered the arguments of the counsel for the Respondents and records of the trial court and those of execution. The main issue is whether there are reasons to warrant the arrest and detention of the Judgment Debtor as a Civil Prisoner. 4 Arrest and detention of the judgment debtor in a civil prison, is one of the modes of execution in our Civil Procedure Code [Cap 33 R.E. 2022] (the CPC). Normally, a court of law cannot compel the decree holder to invoke a particular mode of execution. However, the provision sections 42 to 47 and Rule 28, 35 to 49 of Order XXI of the CPC deal with modes of execution of arrest and detention of the judgment-debtor in civil prison. Section 42 of the CPC enumerates various modes of execution. One of such modes is arrest and detention of the judgment debtor in civil prison. The section provides that: "22p Powers of court to enforce execution Subject to such conditions and limitations as may be prescribed; the court may, on the application of the decree holder, order execution of decree- (b)...N/A (c) by arrest and detention in prison " The foregoing words of section 42 of the CPC, entails that for the court to exercise its jurisdiction of committing the judgment debtor to the prison as a civil prisoner, is subject to “such conditions and limitations" as it

was also prescribed by the Court of Appeal in The Grand Alliance Ltd v Mr. Wilfred 5 Lucas Tarimo and 4 Others, Civil Application No.187/16 of 2019. The Court underlined the following preconditions to be taken into account before ordering imprisonment of a judgment debtor: 1. There must be an application for execution of a decree for payment of money by arrest and detention in prison of a judgment debtor; 2. Executing court has to issue a notice to show cause to the person against whom execution is sought; and 3. Executing court has to satisfy itself as whether the conditions mentioned under Order XXI, Rule 39 (2) exist or noll^^ From the above position of the law, the executing court may exercise its discretion to consider the above-mentioned factors and weigh in whether the conditions under Order XXI, Rule 39 (2) of the CPC have been satisfied before making any order of arrest and detention of a judgment-debtor. The relevant provision provides that: “39. Proceedings on appearance ofjudgment debtor in obedience to notice or after arrest (1),,,N/A 6 (2) Before making and order under sub-rule (1), the Court may take consideration allegation ofthe decree-holder touching any of the following, namely (a) The decree being a sum for which the Judgment Debtor was bound in any producing capacity to account; (b) The transfer, concealment or removal by the Judgment Debtor of any part of

his property after the date of the suit in which the decree was passed or commission by him after that date or any other act of bad fault in relation to his property with the object or effect of obstructing or delaying the Decree Holder in the execution of the decree; (c) Any undue preference is given by the Judgment Debtor to any of his other creditors; the part of the Judgment Debtor to pay the amount of the decree or some part thereof when he has or since the date of the decree has had the means ofpaying it; (e) The likelihood of the Judgment Debtor absconding or leaving the Jurisdiction of the Court with the object or effect of absconding or delaying the decree-holder in the execution ofthe decree.” 7 In the present case, the decree holder filed for an application for execution of a court decree or in the alternative, arrest and detention of the judgment debtor. The amount involved was Tsh.235,000,000/=. It is on record that when the matter was filed, the judgment debtor was given notice in accordance with Order XXI, Rule 35 (1) of the CPC, and that in obedience to the said order, the judgment debtor entered appearance through Mr. Deogratius Sanga, learned Advocate, and filed his notice of preliminary objection On 12th July, 2024 when the m earing of a preliminary objection, the learned adv or tl it debtor prayed to withdraw from representing judgment debtor for lack of

proper instructions. The prayer was granted and the :ed the judgment debtor, at his liberty, to engage another advocate to represent him. It is, thus, surprising to find that Mr. Kamyalile, learned advocate for Decree Holder prayed to the executing court to mark the preliminary objection withdrawn a ed with hearing of the main application. The prayer was granted, and the said court marked the said preliminary objection withdrawn. Subsequently, the main application was heard ex parte against the judgment debtor. 8 The advocates are governed by Advocates Act [Cap 341 R.E. 2019] and its Regulations among which are the Professional Conduct and Etiquette Rules G.N. No. 118 of 2018 (the Rules) in which there are directions. Under Rule 63 (1) of the rules, it is stipulated that where an advocate wishes to withdraw from the case, he must effectively complete the task, unless there is justifiable cause to the contrary. In the present case, lack of proper instructions is justifiable cause for the learned advocate to withdraw from representing his client Further that, rule 63(2) of the same Regulations insists that when an advocate wants to withdraws from ow good cause by notifying the court, the client and the opposite party. Rule 63(2) of the Professional Conduct and f 2018 provides that "))) An advocate shall not withdraw service except for good cause and upon written notice to his

client and the court."[Emphasis is mine] The records reveal that Mr. Sanga filed a notice of withdraw from instructions in court on 12th July, 2024 which was received on the same date. However, the notice does not show if his client and the opposite party were served; the notice appears to have been addressed to DRM in charge of Sumbawanga District Court. Consequently, Mr. Sanga did not follow the laid down procedures of withdrawing himself from service and that caused the judgment 9 debtor not properly informed of the withdrawal. More so, under rule 68 (1) of the Rules, it is provided that the advocate has a duty to give his client all information that may be required about the case or matter, the duty which was not performed by the judgment debtor’s advocate. Regarding the order of court that the judgment debtor, at his liberty, should engage another advocate to represent him, in my view, that was not complied with. However, before that order, the court issued another order that the matter be heard ex parte against the judgment debtor, this is not acceptable. In Tanzania Breweries Ltd v Edson Dhobe and 19 Others, Misc. Civil Application No. 96 of 2000 HCT, the court observed inter alia, that: "Oort orders should be respected and complied with. Court should not condone such failure. To do so is to set a precedent and invite chaos. This should not be allowed to occur. Always

court should exercise firm control ofproceedings." Reverting back to our case, the court ordered the judgment debtor to find another legal representative, but before that order was carried out, the court issued another order of proceeding with the matter ex parte without considering its previous order, thus violating the principle of natural justice by denying the judgment debtor a right to fair hearing. (See: Abbas Sharally 10 and Another v Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2022 (unreported). On the issue whether the Decree Holders persuaded the Court that the conditions under Order XXI, Rule 39 (2) of the CPC have been satisfied, the main reasons for the application for arrest and detenti judgment debtor as a civil prison, is refusal to pay debt when he ha eans t . To prove that the judgment debtor has means to pay bt, th or the decree holders referred to paragraph and of lement, that the judgment had agreed to pay in the settlement. In my view, that is not a f that the j ebtor, he has a means and ability to pay debt. I er mission to pay debt, however, cannot result arr or udgment debtor. Before he urt must be satisfied that there was an elemen of mal ad faith on the part of the judgment debtor. That means lt to discharge duty of payment, is not enough to make the court issu order of arrest and detention. There must be some element of bad faith

beyond mere indifference to pay. In Eurafrican Bank (T) Ltd v Ami Travel Bureau Ltd and Another, Commercial Case No. 8 of 2006 HCT Commercial Court at page 8, the court held that: 11 “So, in short, an order for committal to Civil Prison is not issued as a matter of course. The Decree Holder has to show that the Judgment Debtor has means, but failed or refused to pay or did any act with the object of defeating the execution of the decree. If the Decree Holder fails to discharge that burden, the Court has no power to issue the process. Therefore, from the above findings, it is my se ecree Holders in this matter have failed to dischar thei ving before the court that the Judgment deb ay the debt which he owes them. Nowhere t any eviden establish that the Judgment debtor had bad faith to pay. The provisions of the law and decide es above, emphasize on the need to establish not pay, but an attitude of refusal on demand verging f the obligation. In the light of the a ve analysis, I find no evidence established by the Decree Holders tha ditions under Order XXI, Rule 39 (2) of the CPC have been satisfied for this Court to confirm the order made in Application for Execution Case No. 10568 of 2024 and exercise its discretion to grant arrest and detention of the judgment debtor as a civil prisoner. 12 In the premise, I invoke the provisions of section 79 (1) (c) of the Civil Procedure Code the CPC and nullify the proceedings of the District Court of Sumbawanga and set aside the order emanating for the proceedings of Application for Execution Case No. 10568 of 2024 dated on 19th July, 2024. No order for costs. Order accordingly. DATED at SUMBAWANGA this 20th day 13