20160628 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 199 OF 2016 SECUREX SECURITY AND ALARM COMPANY (T) LIMITED ........ APPLICANT VERSUS UCHUMI SUPERMARKET (T) LIMITED .................................. RESPONDENT RULING MKASIMONGWA, l The Applicant, SECUREX AND ALARM COMPANY (T) LTD has instituted a Civil Case No. 63 of 2016 claiming for a total sum of Tshs. 107,946,425/29 as specific damages for security services rendered to the Respondent from June, 2013 to June, 20115. Pending hearing and determination of the suit he has brought this application for an order of attachment of the Respondent's properties from all its Supermarkets in Dar es Salaam. The application is made by a Chamber Summons filed under Order XXXVI Rule 6(1) (a) and (6), (2) and (3) of the Civil Procedure Code (Cap. 33 R.E 2002) and it is supported by the affidavit of one JIMMY OCHOMO. The Chamber Summons was served to the respondent who decided not to file a counter affidavit or even appear in court. Hearing of the application therefore proceeded in the absence of the respondent. When the matter came up for hearing before me Mr. Herman Lupogo (Advocate) appeared on behalf of the applicant. He submitted, in 1 accordance with the affidavit that as from June, 2013 the Applicant whose main activity is to provide security services provided the services to the Respondent in respect of all Supermarkets, commonly known as UCHUMI SUPERMARKET at Dar es Salaam and Moshi as it is shown by the Contract for Service annexed to the Affidavit. He was paid for the services rendered from June, 2013 - May, 2015 as it is evidenced by the Annexture 55-2 to the affidavit. On 15/10/2015 the Respondent published through the CITIZENS News Paper that he is closing his business in Tanzania and Uganda in order to rescue himself from imminent financial collapse. As of now the UCHUMI SUPERMARKET at Quality Centre is closed and the properties taken away. Currently there exist UCHUMI SUPERMARKERTS at SHEKILANGO and MBEZI BEACH in Dar es Salaam and at MOSHI where the Applicant renders security services. Althought closed, there are goods intact in those supermarket. The Applicant contended further that he claims from the Respondent for a total sum of Tshs. 107,946,425/= for security services provided. The Respondent has declared a Bankrupt and is now closing business and disposing off commodities in the supermarkets. The applicant prays for the order, which this court has powers to grant upon being satisfied that the respondent intends to delay or obstruct the execution of the decree that may be passed against him. He referred the court to the decisions in RAPHAEL DIBONGO VS PRABLAMUS WAMBURA (1975) LRT 42 and MTALE V/S JANUARY KAPEMBWA (1976) LRT 727. The Applicant also submitted that this matter arises from a Civil Case No. 63 of 2016 pending in this court. He cited the case of GULAM 2 HUSSEIN FAZAL VS MUZAFAR HUSSEIN GULAMALI (1976) LRT 64 with a view to show the presence of the suit debars the Respondent from dealing with the properties. He prays the court that the application be granted with costs. As stated above this matter proceeded ex-parte against the Respondent so there are no submission made to the court by the Respondent. n his application the Applicant specifically states as follows: "That this Honourable court be pleased to grant the applicant with an order of attachment before judgment of the Respondent's properties in all its supermarkets in Dar es Salaam, pending final determination of the main suit which is before this Honourable Court". This statement brings me to a clear understanding this is an application for attachment of the Respondent's properties prior to judgment. The application is brought Under Section 68 (b), Order XXXVI Rule 6 (1) (a) and (b), (2) and (3), Civil Procedure Code. Section 68(b) of the Code provides for powers of the court to do the following in order to prevent the ends of justice from being defeated. 1. Direct the defendant furnishes security. 2. Direct the defendant to produce any property belonging to him and to place the same at the disposal of the court, or 3. Order the attachment of any property. 3 These powers are subjected to any rules in that behalf. The Applicant's application is subject to Order XXX VI Rule 6 (2) (a) and (b), (2) and (3) of the Civil Procedure Code. The Rule reads as follows:- "6.(1) Where, at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him- (a) is about to dispose of the whole or any part of his property; or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. . (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. 4 (3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified." My understanding to this rule is that for it to apply, the plaintiff, must satisfy the court by affidavit or otherwise that the defendant has an intention to obstruct or delay the execution of any decree that may be . passed against him. With such intent he is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property. I understand also that in an application for attachment of the property under this Rule, the applicant must specify the property required to be attached and the estimated value thereof. As to whether the Respondent has an intention to obstruct or delay the execution of any decree that may be passed against him, this is not specifically stated in the affidavit. What is in the affidavit is the following averment:- " ... the applicant through the Citizen Newspaper of 15th October, 2015 discovered that the Respondent is closing its business in Tanzania and Uganda to rescue it from imminent financial collapse according to the statement the Tanzania Respondent's Chief Executive Officer, Dr. Julius Kipng'etish" Part of the Newspaper (Annexture SS-3) to the Affidavit quotes, the CEO stating as follows"- 5 ... ' 'ji "Our outlets in Uganda and Tanzania make up only 4.75 per cent of our operation yet they account for over 25 per cent of our operating costs. The two subsidiaries have not made any profit over the last five years which means they have been drawing the parent operations." It is my considered opinion that the applicant's averment in the affidavit and the reason given by the Respondent why he closes the business do not show to the court that by closing the business, the Respondent is intending to obstruct or delay the execution of a decree that may be passed against him in Civil Case No. 63 of 2016 of this court. In the case of GOLLAM HUSSEIN FAZAL (Supra) the court held that:- "The mere fact that the suit has been filed against a person should not be a warrant to debar him from dealing with his property" This presupposes that, an application for attachment of property prior to judgment must be for the purposes of barring the defendant from dealing with what is stated in Paragraphs (a) and (b) of Rule 6 (1) of Order XXXVI of the Civil Procedure Code. Going by the facts of this case it seems, the applicant suit filed in 2016 is prompted by the statement of the Respondent made on 15th October, 2015. The statement therefore cannot be taken to have been made with intent to obstruction or delay execution of the decree in a later filed suit. Regarding the affidavit it is clear that the Applicant claims against the Respondent for a total sum of Tshs. 107,946,420/29 for security services rendered to the Respondent. This application is a result of the applicant's 6 fear as to how the sum, if the suit is found in his favour will be paid to him if the business in closed. The fear as this does not warrant the court to invoke the provisions of Order XXXVI Rule 6 (1) (a) and (b) and (2) and (3) of the Civil Procedure Code. Closure of business registered in Tanzania is a statutory process. The process takes into consideration of all creditors to the business. The Applicant may wish to take up the matter at that right time. On the basis of what is discussed herein above, I find no merit in this matter. It is therefore dismissed. As the matter had proceeded ex-parte no order as to costs is made. Dated at Dar es Salam this 28th day of June, 2016. (I w,~,~ E.~a ~ JUDGE 28/6/2016 7 ,, t f ;' ., Date: 28/6/2016 Coram: Mkasimongwa,J For the Applicant: Mr. Herman Lupogo (Advocate): For the Respondent: Absent C.C. Mabugo Mr. Herman Lupogo (Advocate): My lord, I am for the Applicant. The Respondent is absent and the matter had proceeded Ex- parte. The matter is coming for ruling. I am ready to receive this ruling. Order: Ruling delivered in Chambers this 28th of May, 2016, in the presence of Mr. Herman Lupogo for the applicant. Right of Appeal explained. --------- E-~~a JUDGE 28/6/2016 8