JUDGMENT ONESMO KOIMERE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB - REGISTRY]

AT ARUSHA PC CIVIL APPEAL NO. 7468 OF 2024 (Arising from Civil Revision No. 08 o f2022 o fArumeru District Court before Hon. I. T. Nguvava, SRM arising from Application for Execution in Civil Case No. 135 o f2020 o f the Primary Court o fArumeru District at Enaboishu before Hon. J.D. Mwita, RM) ONESMO KOIMERE NANGOLE............................................ APPELLANT

VERSUS ZAKAYO MEVARALI....................................................... 1st RESPONDENT ADVANCED CREDIT RECOVERY CO. LTD.......................... 2nd RESPONDENT

JUDGMENT 07th & 12th November, 2024 I.C. MUGETA, 3 This appeal was argued by way of filing written submissions. Both parties duly complied with the schedule. Judgment was to be delivered on 06/11/2024. As I sat down to compose it, I realized that the propriety of the proceedings at the District Court and this appeal ought to be examined. The following are the facts of the case. The 1st respondent sued the appellant for recovery of Tshs. 20,000,000/= he lent the appellant. He won the case at the Primary Court. On executing the decree, he attached a guest house of the appellant. The wife of the appellant, Irene Onesmo Nangole, filed objection proceedings against the attachment. The objection was overruled. The appellant who was a party to the original case but not a part to the objection proceeding filed a revision against the decision in the objection proceedings. The district court dismissed the application. One of the reason for the dismissal being that the appellant who was a party to the proceedings in the primary court ought to have appealed. Aggrieved, the appellant has preferred this appeal on four grounds of appeal. My concern is that the objector, Irene Onesmo Nangole is not pleaded in the District Court and in this Court. As the appellant was absent on the judgment date, I informed counsel for the respondent that the parties ought to address me on the competence of

this appeal in the light of the decision in NBC v Ballast Construction Company Limited, Civil Application No. 445/01 of 2022, Court of Appeal - Dar-es-Salaam (unreported) where it was held that the name of a party who has lost interests in a case cannot be left out on appeal and the proper procedure is to join him as respondent (page 7). The counsel for the respondent undertook to notify the appellant's counsel of the raised issue so that they could appear to address the court. The case was fixed for hearing on 07/11/2024 and counsel for both parties appeared. 2 Nicholas Leoni, learned advocate, represent the appellant. He started by submitting that upon termination of the objection proceedings, Irene Nangole was unnecessary to any subsequent proceedings involving the parties as she will have no interests in the matter. That being his position, I asked him if it was proper for the appellant to file a revision instead of appeal. He conceded it was not proper. Consequently, he prayed the court to quash the judgment and set aside the proceedings of the District Court followed by order that the pleadings be amended to implead Irene Onesmo Nangole. Emmanuel Kokani, Advocate for the respondent was of the same view that it was improper to file a revision without including Irene Onesmo Nangole. He agreed the proceedings at the District Court should be set aside and the judgment be

quashed. However, he opposed ordering a retrial after amendment of the pleadings. In his view, doing so would amount to condoning the choose and pick attitude in initiating cases instead of including necessary parties to the case from the word go. To support his argument he cited the holding in the case of Salim Amour Diwani v VC Nelson Mandela African Institute of Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA 33 (21 February 2023). At pages 4 - 5 of that case it was held: 3 "... court record are considered authentic and should not be easily altered as parties would wish to. It bears reaffirming that, parties in the proceedings should at any given time appear as they did in the previous proceedings, unless there is a reason for not observing that and only with the leave o f the Court" The record of the revision proceedings shows that the appellant was challenging the execution process which had involved objection proceedings. Irene Onesmo Nangole was a party to those proceedings. Therefore, the objector was a necessary party to any subsequent proceedings relating to the execution of the decree. Failure to include Irene Onesmo Nangole made the revision proceedings incompetent. On that account they cannot be allowed to stand. It does not matter whether she had lost interest in the case. That was for her to tell upon being summoned. The prayer to order for

amending the pleadings is untenable. This is because the appellant who was not made a party to the objection proceedings ought to have filed his grievances for determination by the executing court first. One of his ground of complaint is that the Primary Court has unprocedurally attached properties outside its jurisdiction. As a matter of practice, all objection on propriety of execution process ought to be lodged with the executing court first and not revision. Consequently, the appeal is struck out for incompetency. As the issue upon which this decision is founded was raised by the court, I use the revisional powers of this court under section 44(1) of the Magistrates' Courts Act [Cap 11 R.E. 2019] to quash the judgment of the District Court and to set aside its proceedings. Each party to bear own costs. I.C. MUGETA

JUDGE 12/ 11/2024 Court: Ruling delivered in chambers in the presence of 1st respondent, and Emmanuel Ole Kokani, advocate for the respondents but in the absence of appellant and the 2nd respondent Sgd: I.C. MUGETA

JUDGE 12/ 11/2024 5