roko investment company limited vs crdb bank plc 2016 tzhccomd 33 23 june 2016

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

MWANZA COMMERCIAL APPL. NO. 17 OF 2013

ROKO INVESTMENT COMPANY LIMITED PLAINTIFF

VERSUS

CROB BANK PLC DEFENDANT

RULING MRUMA, J An oral application has been made by Mr. Mwakipesile, advocate for the decree holder to the effect that this court appoints a receiver for purposes of executing the decree instead of a court broker. The application is made Under Section 42(d) of the Civil Procedure Code[Cap 33 R.E. 2002]. The said section provides that: "Subject to such conditions and limitations as may be prescribed, the court may on the application of the decree holder, order executionof the decree. (a) [not relevant} (b) [ not relevant} (c) [not relevant) (d) By appointing a receiver 1 Appointment of a receiver for proposes of executing a decree is regulated by sub rule (l)(a) of rule 1 of Order XXXVIII of the Civil Procedure Code which provides that. "Whereit appears to the court to bejust and convenient, the court may by order do any of the following (a) Appoint a receiver of any (projecting) whether before or after decree// (b) [not relevant} (c) .{not relevant} (d) [not relevant} From the provisions of sub-rule (l)(a) of Rule 1 of Order XXXVIII it would appear that before court can make an order for appointment of a receiver it must be satisfied that such order is just and convenient. Mulla in the Code of Civil Procedure 16th Edition while commenting on Section Sl(d) and Order XL Rule 1 of the Indian Code of Civil Procedure which is in paramateria with our section 42( d) and Rule 1 of

Order XXXVIII of our own Civil Procedure Code [Cap. 33 R.E. 2002], stated that appointment of receiver is granted on the ground that there is no effective remedy for execution at law. Thus, appointment of a receiver is not a matter of right. A proper case must be made to the satisfaction of the court to warrant the exercise of its discretion to that effect. The court must be satisfied that the appointment of a receiver is likely to benefit the decree holder and the judgment debtor rather than a sale of attached property. Furthermore the court has to be satisfied that the decree is likely to be realized within a reasonable time from the attached properly so that the judgment 2 debtor may not be burdened with property while he is deprived of its use. In the present case the mode in which the assistance of the court is required is by attachment and sale of 1. Plot No. 27 which in Shinyanga held under certificate of title No. 14900.

2. Plant and machinery houses on Plot No.4 Block H; Igunga, Tabora held under Certificate of title No. 14013.

3. Motor vehicle (Scania Mode P2x42RN38, with Registration No. T.616 ARP Engine No. 51056730) 4. Motor vehicle Scania Model 12 with Registration No. T735 AAB Engine No. 5105670) 5. Motor vehicle (Scania 93 M with Registration No. T. 114 AHJ Engine No. 4694315) 6. Motor vehicle (Scania Trailer with Registration No. T 654 AGN) and', 7. Motor Vehicle (Scania Trailer with registration No. T. 828 AMZ) Counsel for the decree holder did not advance any reason as to why they prefer a receiver rather than a court broker. A receiver is a disinterested person appointed by the court for protection or collection of property that is the subject of diverse claims [see Black's Law Dictionary 7th Edition by Bryan A. Garner at P. 1273]. In the case at hand there is no claim that the listed properties are subject of diverse claims therefore I don't see how a receiver would be of assistance in this matter. For instance what can a receiver do with motor vehicles? 3 Moreover under the provisions of Rule 3 of Order XXXVIII, of the Civil Procedure Code, an appointed receiver must furnish security (if any) to the court. He has to account to the court what he shall receive. He submits his accounts at such period and in such form as the court directs and he is responsible for any loss occasioned to the property. In short he is accountable to the court rather than to the parties in the matter. This

process cannot assure the court that the decree can be realized within a reasonable time from the attached property so that the judgment debtor may not be burdened with property which he has been deprived of its use. For those reasons the application for appointment of a receiver is rejected. The Deputy Registrar is directed to appoint a court broker to carry out the exercise in accordance with prevailing laws and procedure. Order accordingly. A. R. MRUMA

JUDGE 23/6/2016 4