JUDGMENT PAULINA MATHIAS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB REGISTRY OF MANYARA

AT BABATI PC CIVIL APPEAL NO. 3829 OF 2024. (Arising from civii Appeal No.3279/2023 of Simanjiro District court, originating from Civil Case No.23/2021 from Shambarai Primary Court). PAULINA MATHIAS SIZYA.................................................. APPELLANT

VERSUS WILLIAM THOMAS ILAMA.............................................. 1st RESPONDENT HAMADI MASANGA........................................................2nd RESPONDENT.

JUDGMENT 27thJune & 15th July, 2024. Kahyoza, J.: The appellant appeared before the primary court objecting for the attachment and sale of the house in execution of the decree. She had one ground of objection that house subject of attachment was a residential house. The primary court ruled against her. Aggrieved, the appellant appealed to the district court where she lost the appeal. In briefly, the first respondent sued successfully the second respondent for payment of Tzs. 4,316,800.00. The first respondent did not appeal. Then, the first respondent applied for execution by attachment and sale of the second respondent's house. The appellant objected contending that she had interest in the suit house as the second 1 respondent's wife and that she contributed to the acquisition of the house. She added that the house was a residential house where the family members resided. The trial court overruled the objection and ordered the house to be attached. The appellant appealed to the District court claiming, the trial court erred to attach the residential house. The District court dismissed the appeal, still dissatisfied, she appealed to this Court. Is the house attachable? The appellant stated that the house was a residential house, hence not subject of attachment. She added that the house was not mortgaged She insisted that she married the second respondent in 1988. In reply the

first respondent contested vigorously the allegation that the attached house was a residential house. He added that the appellant was not married to the second respondent but was hired to contest the attachment. This is a second appeal. I will not venture to consider and determine the issue whether the appellant who was the objector, had the right of appeal. Unlike the Civil Procedure Code [Cap. 33 RE. 2019], which prohibits the objector to appeal against the decision dismissing the objection (see Ord. XXI rule 57), the Magistrates' Courts Act, [Cap. 33 RE. 2019], (the MCA) is silent. There is no doubt that it is the MCA, which governs the current appeal. I desist the temptation to apply the CPC provisions to the current matter. It is not disputed that the law states in no ambiguous terms that a residential house is not subject to attachment. Rule 63(1) of the Magistrate Courts (Civil Procedure in Primary Courts) Rules, G.N. No 55 /1963 under rule 63(1) (a) and (b) stipulates that- "No warrant of attachment shall be issued in respect of- (a) any land used for agricultural purposes by a village, an ujamaa village; a co-operative society, or an individual wholly dependent upon the use o f such land" (b) any residential house or building occupied by the judgment debtor, his wife or dependent children for residential purposes". Also the same legal basis has been stipulated in the

Forth Schedule of the MCA, [Cap 11 R.E 2019] rule 3, stated- "For the purposes o f this paragraph, "attachable property' shall not be deemed to include; (f) any residential house or building, or part o f a house or building occupied by the judgment debtor, his wife and dependent children for residential purposes." It is crucial to this court to decide on whether the attached property was a residential house, for that reason, not subject of attachment. It is 3 on record that the appellant lost the battle before the two courts below. It is trite law that where there are concurrent findings o f facts by two co u rts the second appeal court should not disturb them unless it is clearly shown that there has been a misapprehension o f evidencing or a miscarriage o f justice or violation o f some principle o f law or procedure. See the case of Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores Vs. a.h Jariwalla tla Zanzibar Hotel [1980] T.L.R 31.1 had an opportunity to scrutinize the trial court decision, I am of the view that the trial court did not determine the issue whether the house was a residential or otherwise. It overruled the objection because the second respondent, the judgment debtor failed to pay as ordered for 13 months. It stated- "Kwa kuhitimisha maelezo hapo juu, mahakama hii kwa kuzingatia mazingira ya madai haya na hatua ambazo zimekwisha tekeiezwa, kwa

kuwa mdaiwa mhukumiwa hajatekeleza amri halali ya mahakama kama ilivyoamriwa tarehe ya mwisho ya kulipa deni hilo ni tarehe 30.09.2022 na sasa imeshapita miezi kumi na tatu (13) hivyo mahakama imetupHia mbali pingamizi la kukamata mali kwa asiye mdaiwa lililowasilishwa na mpingaji. " It is obvious that the trial court misdirected itself. It did not determine the matter which was before it which was whether the suit house was a residential house or not. It considered the sufferance the first respondent was going through and ordered the attachment to proceed. Like, the trial court, the first appellate court did not determine the issue whether the house was a residential house. It is on the record that the first appellate court determined that there was no evidence to prove whether the house was a matrimonial house or the appellant had contributed to its acquisition. The basic issue was whether the house was subject of attachment in execution of the decree or not. I am confident that the two courts below misdirected themselves by their failure to determine the basic issue. This court being a second appellate court has mandate to consider the facts and disturb the concurrent decisions of the two courts below as the courts misapprehended the issue. I considered the appellant's evidence by way of affidavit that the house was a residential house and the first respondent that the

house was not a residential house, I find the appellant's evidence heavier. She proved on the balance of preponderance that the house was residential. The first respondent did not state who occupies the house if it is not occupied by the appellant and her family members. Consequently, I find that the house was not subject of attachment. I uphold the objection and order the attachment to be raised. I make no order as to costs and raise 5 the orders for costs granted to the first respondent by the two courts below. To grant the appellant costs for this appeal will lead to endless litigations. The first respondent will claim costs for succeeding before the courts below and the appellant will claim costs awarded by this court. Thus, to avoid unnecessary litigations, each party shall bear costs before this court and the two costs below. I order accordingly. C ce of the appellant, the first respondent and second respondent. B/.C Ms. Fatina present physically. J. R. Kahyoza

JUDGE 15.7.2024 6