Optatus Chrisantus Ndonde v Hass Petroleum (T) Limited, Danvic Petroleum (T) Limited, Victor Asante Ndonde and Tambaza Auction Mart and General Brokers Limited

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 000013999 OF 2026 OPTATUS CHRISANTUS NDONDE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS HASS PETROLEUM (T) LIMITED .............................. RESPONDENT / DEFENDANT DANVIC PETROLEUM (T) LIMITED .............................. RESPONDENT / DEFENDANT VICTOR ASANTE NDONDE .............................. RESPONDENT / DEFENDANT TAMBAZA AUCTION MART AND GENERAL BROKERS LIMITED .............................. RESPONDENT / DEFENDANT RULING KADILU, J IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 13999 OF 2026 (Arising from Execution No. 19605 of 2025) BETWEEN OPTATUS CHRISANTUS NDONDE ................................................ APPLICANT VERSUS HASS PETROLEUM (T) LIMITED ………………….………………. 1ST RESPONDENT DANVIC PETROLEUM (T) LIMITED.….………………………..…. 2ND RESPONDENT VICTOR ASANTE NDONDE ...…………………………………….... 3RD RESPONDENT GENERAL BROKERS LIMITED............................................... 4TH RESPONDENT RULING Date of Last Order: Page. 1 28/08/2026 Date of Delivery: 04/09/2026 KADILU, J. Under a certificate of utmost urgency, the applicant filed this application seeking an order postponing the sale by public auction of the landed property situated at Kimara/Saranga, held under Title No. DSMT 1029467, Plot No. P7360, belonging to the applicant, pending investigation of the claims by the applicant. He asserted that the said property is neither part of the subject matter of execution in Commercial Case No. 99 of 2021, nor does it belong to the 2nd respondent, who is the principal judgment debtor and the entity to whom the credit facility was granted. According to the applicant, upon default in payment of the decretal sum, the 1st respondent was entitled to execution by way of attachment and sale of properties comprised in Certificate of Title No. 14524 (LO. 592883) located at Plot No. 1, Block; Certificate of Title No. 141368 (L.O. 592882) located at Plot No. 2, Block "B" and Certificate of Title NO. 142881 (L.O. 592883) located at Plot No. 1, Block " B ", all located at Mwatemo in Bagamoyo Urban Area, to recover the settlement amount, interest and costs. The properties listed above were the only properties that were agreed to be sold to satisfy the decree in Commercial Case No. 99 of 2021. He added that the applicant was never served with any notice of execution in Execution No. 19605 of 2025 and was completely unaware of these execution proceedings until 1st June 2026, when he discovered a public auction flyer posted by the 4th respondent on the attached property located at Kimara/Saranga. It was only through the said poster that the applicant realized that the 1st respondent is seeking to attach and execute against his personal property located at Kimara/Saranga, held under Title No. DSMT 1029467, Plot No. P7360. He stated that the property was never agreed upon by the parties to satisfy the decree in Commercial Case No. 99 of 2021, as it belongs to the applicant personally. The applicant explained that he is a director of the 2nd respondent, but the loan was advanced solely to the 2nd respondent as a corporate entity and not to the applicant individually. Thus, the 1st respondent cannot execute against the applicant's personal property without successfully piercing the corporate veil. He argued that the 4th respondent issued an eviction notice to the applicant, while the applicant never pledged his landed property to the Page. 2 1st respondent as a mortgage, and that the 1st respondent is not a financial institution authorized to receive mortgages. According to the applicant, the 1st respondent has already sold the three (3) properties located at Mwatemo, Bagamoyo, to satisfy the decretal sum. It is alleged that the proceeds of sale of the three properties did not cover the claimed debt, leaving an outstanding balance of TZS 40,000,000. The parties agreed to the settlement using the specified properties because their market value was sufficient to satisfy the entire debt and leave a residue. However, after the sale, the 1st respondent failed to file an account or a sale report with this Court detailing the proceeds realized therefrom. To the applicant, executing the decree using the property which was not subject to the deed executed and claiming for an amount more than what is entitled to is an error and amounts to injustice on his part. In his view, unless the attachment is postponed and investigated by this Court, the applicant will suffer irreparable loss as the landed property located at Kimara/Saranga with Title No. DSMT 1029467, Plot No. P7360 will be sold for a debt that is neither correctly calculated nor secured by the said property. In response, Mr. Hillary Kariuki, the Principal Officer of the 1st respondent, took an oath and stated that in the deed of settlement it was agreed that the 1st respondent would waive the claimed interest of TZS 126,436, 106.48/=, and all interest and costs claimed in the plaint if the principal amount would be fully paid within six months. However, the agreed time frame elapsed without the applicant, 2nd and 3rd respondents paying any amount to the 1st respondent; hence, the claim was reverted as claimed in the plaint. He added that the disposition of the listed properties could not satisfy the entire debt, including both the principal sum and the interest. After the attachment of the said properties, a valuation was conducted, which revealed that the market value of the three properties was TZS 38,000,000/= only. The market value of the land with Certificate of Title No. 145254, Plot No. 1, Block "B", Mwetemo, was TZS 13,000,000; that with Certificate of Title No. 141368, Plot No. 2, Block Mwetemo, was TZS 13,000,000; and that with CT. No. 141884, Plot No. 1, Block "C" Mwetemo, was TZS 12,000,000. The three properties were successfully auctioned on 23rd June 2025, and Page. 3 fetched only TZS 40,100,000/=, an amount that could not even cover the principal claim. The deponent further states that the applicant and the 2nd and 3rd respondents were duly served through publication. The substituted summons was issued after numerous attempts to serve them personally, but the process server found their office locked. The deponent further avers that the applicant was aware of the proceedings as on 23rd February 2026, when the warrant of attachment was affixed on the door of the house located on the attached land, which is resided by a caretaker who contended to be a relative of the applicant; the applicant was informed of the attachment of the said property. According to him, the outstanding debt was to be settled jointly and severally by the applicant, the 2nd respondent, and the 3rd respondents. He further stated that even the properties listed in the settlement deed were exclusively personal property registered in the name of the 3rd respondent. On top of that, the deponent explained that the applicant, 2nd and 3rd respondents were co-defendants in the main suit. He discredited the assertion that the 1st respondent did not account for the proceeds of the previous sales. According to the deponent, the court broker filed the report of sale with this Court, and the certificates of sale were issued. Mr. Victor Asante Ndonde, the Director, also filed a counter affidavit on behalf of the 2nd and 3rd respondents. Like the applicant, he stated that the properties in question were neither used as collateral for the 2nd respondent’s loan nor were they agreed in the settlement deed to be used to satisfy the 2nd respondent's debt upon failure to pay. He refuted the allegation that the money from the sale of the agreed properties did not satisfy the debt. To him, the sale of the said properties was sufficient to satisfy the entire debt, as they were agreed to the settlement because the properties' market value was high enough to satisfy the whole debt and yield a residue. Mr. Abdallah Hamza Abeid, the Principal Officer of the 4th respondent, affirmed an affidavit in opposition to the application. He explained that, prior to the attachment, he had issued a notice to the 2nd and 3rd respondents. Moreover, the local Government Authorities where the property is situated were consulted, involved and witnessed the attachment. The applicant and the 3rd Page. 4 respondent were also contacted by the local Government leader. He elaborated on how the attachment was carried out. He added that immediately after the warrant of attachment was issued, he was contacted by the 3rd respondent, who inquired how the 1st respondent had obtained the certificate of title for the attached land, since it was not listed in their settlement. The deponent further states that the 4th respondent did not issue or attach any eviction notice; rather, it was a notice of attachment. He implored the court to reject all the applicant’s prayers in the chamber summons in the interest of justice. At the hearing, the applicant was represented by Mr. Ambrose Nkwera and Mr. Charles Masaga, Advocates; the 1st and 4th respondents were represented by Mr. Baraka Mase, Advocate, whereas Mr. Victor Asante Ndonde appeared for the 2nd and 3rd respondents. I will refer to their submissions in the course of the discussion. Having set out the facts as contained in the supporting affidavit and counter-affidavits, the issue is whether the application is meritorious. In determining this issue, I find the pertinent question to resolve is whether the judgment debtor is legally justified in contending that the attached property is not attachable. Narrowing it down to the circumstances of the case at hand, the issue is whether the execution of a consent decree is legally restricted to the properties agreed in a settlement deed. The application is brought under Order XXI, Rule 59(1), (2), 60, 61 and Section 105 of the Civil Procedure Code, [Cap. 33 R.E. 2023]. Order XXI, Rule 59 (1) provides: “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.” Further to that, Order XX, Rule 60 of the CPC requires the claimant or objector to adduce evidence to show that, at the date of the attachment, he had some interest in the attached property, or was possessed of the property attached. Mr. Ambrose submitted that the applicant is not a party to Commercial Case No. 99 of 2021, which resulted in Execution Application No. 19605 of 2025 in which the applicant’s landed property is sought to be sold. Page. 5 The record shows that the consent decree sought to be executed arose from Commercial Case No. 99 of 2021, to which the plaintiff was Hass Petroleum (T) Limited, whereas the defendants were Danvic Petroleum (T) Limited, Victor Asante Ndonde, and Optatus Chrissantu Ndonde. Thus, the applicant was a party to the suit that resulted in the present decree. It was decreed that in event of default of payment the plaintiff would be entitled to apply for execution by attachment and sale of the properties comprised in certificate of Titled No. 14524 (L.O. 592883) located at plot No. 1, Block "B", at Mwatemo in Bagamoyo Urban Area; Certificate of Title No. 141368 (L.O.592882) located at plot No. 2, Block "B" at Mwetemo in Bagamoyo Urban Area; and Certificate of Title No. 141881 (L.O. 592883) located at plot No. 1, Block "C", at Mwetemo in Bagamoyo Urban Area to recover the settlement amount, interest and costs as claimed. In the present matter, the 1st respondent seeks to sell the applicant's property described as Title No. DSMT 1029467, Plot No. P7360, situated at Kimara/Saranga. Admittedly, the said property is not listed in the consent decree. The applicant’s Counsel argued that execution of the decree should be confined to the award, and the executing court is not justified in altering or adding anything to the decree or award during the execution. Mr. Mase replied that the objection proceedings before this court have been filed by the wrong party because the applicant is the 3rd defendant in Commercial Case No. 99 of 2021, not a 3rd party to it. In the Counsel’s view, since the applicant is a party to the main suit which resulted in a decree sought to be executed, he has no locus standi in this application. He holds that view because the decree shows that the defendants’ liability is joint and several, and Order XXI, Rule 59 of the CPC, prohibits a party to the suit from filing objection proceedings to prevent the execution. He explained that the court’s investigation is usually conducted when the owner of the attached property is a 3rd party, whereas in the case at hand, the objector is a party to the suit that resulted in a decree subject to execution. It should be noted that under the CPC, once a settlement deed is recorded and adopted under Order XXIII Rule 3, it becomes an enforceable court decree, as happened in the present case. For that matter, what is being Page. 6 executed is not a deed of settlement, but the court’s decree. A consent decree should not be regarded as a lesser decree compared to the decrees resulting from a full trial. If the judgment debtor breaches the payment terms, the decree holder is entitled to attach and sell any lawful property owned by the judgment debtor to recover the outstanding balance. The applicant suggests that, since the sale of the properties subject to the consent deed has not satisfied the decree, the outstanding decretal amount has become inexecutable. With all respect, this is not the law. It is trite that every decree holder shall enjoy the fruits of his decree at the earliest possible opportunity and unconditionally. See Rosemary M. Hamilton v. Dr. George Oreku & Another, [2024] TZCA 664. Thus, the duty of the judgment debtors to pay the decretal sum is not optional at their instance. It is therefore the finding of this court that the execution of a consent decree is not necessarily confined to the agreed properties only, provided that the underlying obligation to fulfill the decree by the judgment debtors has not been fully discharged. I have keenly examined the impugned decree. Three things are evident. First, the applicant is a party thereto as the 3rd defendant. Second, the defendants’ liability is joint and several. Third, it was decreed that in the event of default in payment of the decretal amount as decreed, the plaintiff would recover from the defendants jointly and severally the settlement amount, interest and costs as claimed in the plaint. From these facts, I agree with Mr. Mase that the applicant is not legally entitled to object to the attachment and sale of his property. It has also been submitted that the applicant is merely a guarantor of the loan; hence, his personal property is not liable to attachment. On this, I wish to state that under section 80 of the Law of Contract Act [Cap. 345 R.E. 2023], the liability of the surety is co-extensive with that of the principal debtor unless it is otherwise provided by the contract. It means that the liability of the guarantor is the same as that of the principal debtor, and a creditor may pursue a surety immediately without waiting to exhaust remedies against the principal debtor unless the contract of guarantee provides otherwise. In the instant matter, no one informed the court whether a contract of guarantee stipulated to the contrary. Coupled with the fact that the defendants’ liability in Commercial Case No. Page. 7 99 of 2021 was joint and several, the applicant may not be heard to complain that his personal property was wrongly attached. At this juncture, the court finds that given the facts of this case, the attachment and sale of the applicant’s landed property is not an alteration of the decree as alleged. More so because the applicant is bound jointly and severally to satisfy the decree. Thus, the 1st respondent is entitled to recover the decretal sum, interest and costs from any of the defendants therein or against all of them. Besides, the applicant’s complaint that the previous sale of the listed properties yielded an amount in excess of the decretal sum, and that the 1st respondent has not accounted for the proceeds of the alleged sales, is now inappropriate. The complaint has been brought in the wrong forum and at the wrong stage of execution. I wish to note that the issues regarding service of notice to show cause, the validity of the sale, and the exact outstanding decretal amount are not matters determined during the objection proceedings. These points would be valid if the court were determining the proceedings for the judgment debtors to show cause, which is not the case here. The court’s duty at this stage is only to investigate the third party’s claims and objections. The Court of Appeal stated in Hanspaul Industries Limited v. TIB Development Bank Limited & Others, [2026] TZCA 26, that to succeed in the objection, the claimant is bound to adduce evidence proving that, at the date of the attachment, he had some interest in or was possessed of the property attached. The claimant being referred to in the above case is a third party. It is pertinent to note that under Order XXI, Rules 59-64 of the CPC, property belonging to a person who is not a party to the suit or decree is immune from attachment and sale. As already shown, the applicant is not the third party. He is the actual defendant in Commercial Case No. 99 of 2021 and its resultant consent decree. Based on the above analysis and authorities, the court finds that the present application is devoid of merit and is hereby dismissed. Consequently, the Execution No. 19605 of 2025 is ordered to proceed from where it ended before these proceedings were instituted. Since the matter is at the execution stage, I make no order as to costs. Order accordingly. KADILU, M.J., JUDGE 04/09/2026 Ruling delivered virtually on the 04th day of September 2026, in the Page. 8 presence of Mr. Ambrose Nkwera, Advocate for the applicant, and Mr. Baraka Mase, Counsel for the 1st and 4th respondents. KADILU, M.J., JUDGE 04/09/2026 Dated at DAR ES SALAAM this 4th of September 2026 . M. J KADILU JUDGE OF THE HIGH COURT Page. 9