19761004 TZHC Mwanza

IN THE HIC+R COURT OF TANZL.N111 AF2E 7, LiTE JTJRiEDICTION (pa) CIVIL I?dAL ITO. 287 OF 1975 (From the- decision of thu Dfstrict Court of nscna. at Musona in Civil fpen,l Fe. 28 of 1975 Fefore I. L. Nyei.ied:ato, Esc., DM. an. Original iTrl:irango Primary Court Civil Caso Ho. 31 of 1974) I DiET IA\T (CCr)f ./'J.L.L'i.LLX. ITPT' JL4L't..L2 • • S I OI( , • O•I •... , • • • • verus NLSILIVGI 1JHOO ....... ....-. R2OITDENT. CLAIN hs. 290/= costs incurred as a result of wroig attachaont. JU I) G- N E U T KdTITI, J., The appellant Oclioro Were, filed an acti..on in Kukirango Primary Court, claiodag a total of she. 290j=, th epenses and. coscs, ho incurrea as a result to wrong a;tachnct of his oat -GiG. The J:-raniary Court award ca the sum ciaired. The responont aggrieved successfully appealod -bo the District 0 ourt. The a epcllan.t, still agrioved, has apocaicci to this Court. The facts of the case ore that the respondent was a successful party in Civil Case No. 6 of 1974. in his attempts tc execute the cLecroc, he lad ike Court Messenger Chacha Vanbure to attach and cease, the appellants heads of cattle, thinking that the came were the property of the judgment debtor. This Chacha bambura had the heads of cattle in question from 9/2/1974 up to 27/4/1974, when the appellant feeling concerned, with the s curity and safety, of what he felt was his right roporty, took the hands of

cattle back, and under went to pay the herds—boys under his supervision till the case was finaliseci. It turned out, as a rooult of objection proceedings, thn.t in fact the heads of cattle in question, were not the property of the judgment debtor at all, and hence the removal of attachment order. The apOollaut :tilod tiec cuit claiming a refund of the expenses incurred as a result of this. The Primary Court awarded the no-otmt, The District Court upset it, arguing that, as the appellant took back his hcadO, of cattle, he should not be hoard to claim anything. I think, the District Court, did not rasp the point involved. The whole process of attachment was initiated by the respondent. T'll _e Court cannot out of the blues, issue a warrant of attachment, and direct as to which property should be attached. It is tii Decree Folder ho orays as to whicu. property, if atnachaoo, is to cc a -Gtached. it therefore hebovos the Decree 11oldor, to make a thorough investigation, and satisfr himself, that the property to no attached belongs to the judgment debtor. If pronorty is wrongly attached as a result of hs initiative, and the owner is put into expenses and costs as a result thereof, I cannot soc why the person responsible for suck an err or should net xn-y costs incurred. In this case the rusoondoat led to the attachment of the anpellant 's hoacs of cattle. .1.12 -2- Teeliva

concLrnoc1 'jei± their socurity, tue alipellar b tooh thcie, paid the herds-boy, the cabtle in effect, still under attchi cit ceuscd by the respond nu, LiU the objecti ii proce- edings successfully oudccj DarinZ IG hi s peru. c1 the neUont suffered the operisos: clamd. The rspon.dcnt is responsible for all this, for if he hid beéñ careful in tracin which cattic.. be longed to the judpen debtor, and which not, the appellant would hivé cnsparodf this. :rt is y view, that whore o. litigant loads to the wrong o:t;taclTueont of ones property, any expenses relevantly incurred, as a result therof, should be defrayed by the party so CauSing the saao. J-n this case, I think -che r:iaary Cour't' ra ra gut' to' award the saeo and I so order. The pc i. is hewed wiuh c ts. 17 A rnTfl LA, to j1jDG-I MJJ..IZL 4TH ocTopER, 1976