20071218 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 37 OF 2006 TANZINDIA ASSURANCE COMPANY LIMITED .......... PLAINTIFF VERSUS RABCO TANZANIA LIMITED .................................... DEFENDANT RULING 1. Date of Hearing - 13/12/2007 2. Date of Ruling - 18/12/2007 MASSATI, J Following the judgment of this Court dated 29/6/2007, the judgment debtor Company was adjudged to pay to the decree holder/Respondent Company, the sum of shs.144,524,000/=, interest and costs. Come 6/8/2007, not a single cent of the decretal sum had been . ' paid. So, cognizant of the fact that the judgment debtor Company had become inoperational, the decree holder successfully applied for the arrest and detention of the Company's Managing Director, ABDUL BARAKA as a civil prisoner, in order . to pressurize . him into paying the decretal sum. On 19/11/2007 he was taken to· the civil prison to start serving a 60 days (two months) civil imprisonment term . • r 2 However, on 5/12/2007, Mr. Semu, learned Counsel for the judgment debtor prisoner filed an application under s. 95, 0. 39 (1) (3) of the Civil Procedure Code. But on 7/12/2007, an amended chamber summons was filed, under ss. 44, 47, 95, and 0. 21 rule 39 (1) (3) of the Civil Procedure Code supported by an affidavit of ANNEY SEMU. According to paragraphs 3, and 4 of the affidavit, it is averred that the judgment debtor has already paid Tshs.30,000,000/= towards liquidating the decretal sum, and that his health condition has been deteriorating steadily while in prison and that he needs urgent medical attention. Besides, his release would facilitate ways of satisfying the decree. In Court, Mr. Semu, repeated the same arguments and went further to even propose how the judgment debtor would pay the rest of the decretal sum; starting with shs.10/= million within three months from the date of the order. The decree holder has filed a counter affidavit to oppose the application, but in response to the points raised by the applicant in paragraphs 3 and 4 of the affidavit, the Respondent just "noted" their contents. To me the term· "noted" "means no comment" signifying that, the deponent was either in agreement with its contents or had no sufficient material to controvert them. But in paragraph 8 of the counter affidavit, the Respondent puts forward some suggestions on 3 how the balance of the decretal sum should be paid. In her submission, Ms. Sheikh, learned Counsel for the Decree Holder/Respondent, said that although, legally it was too late in the day to order payment of the decretal sum by instalment, labeling it as "res judicata", she had instructions to accept the proposal in principal "on humanitarian grounds", but went further to argue that their proposals are much more reasonable and realistic than what the Applicant had suggested. In his brief rebuttal submission, Mr. Semu submitted that after being in prison, the judgment debtor prisoner had now been punished and learnt his lesson and was now ready to satisfy the decree but within what is humanly possible. Section 47 (3) (b) of the Civil Procedure Code, 1966 gives powers to the committing Court to release an imprisoned judgment debtor on grounds of serious illness. The term "serious illness" is not defined, but I think it is left to the Court's discretion to look at the circumstances of each case and determine what "serious illness" is. To me, "serious illness" is any condition which appears to be of imminent danger to the prisoner. In the present case it is averred in paragraph 4 of the affidavit that the prisoner's health has been deteriorating and was in urgent need of medical attention. To support the contention a letter from TUMAINI COMPREHENSIVE INFIRMARY LTD dated 7th December, 2007 has been attached. In 4 this letter, the prisoner, BARAKA ABDU is described to have "severe hypertension and gastric ulcers" and that "both those conditions are not compatible with undue stress". Although, it is debatable whether this condition is serious illness, since the Respondent had given no comment on this recommendation, I have no alternative but to give the prisoner, the benefit of the doubt, since there is no evidence to prove otherwise. From the above, I conclude that for the time being the prisoner qualifies for a release on grounds of serious illness under the above cited law. However, as appreciated by both learned Counsel, the release from prison does not amount to a discharge of the debt. Having paid shs.30/= million towards the judgment debt of over shs.144/= million, plus interest and costs, the judgment debtor still has a long way to go. Ms. Sheikh has submitted that it was too late to order payment of the decretal sum by instalments. That is only partly true Indeed Under 0. XX rule 11 (1) of the Civil Procedure Code 1966, the Court on its own, may only order payment of the decretal sum by instalments, at the time of passing of the decree. But under rule 11 (2), after the passing of the decree, the Court may only do so with the consent of the decree holder. In the present case, although it is past the time of passing the decree, since the decree holder has ... 5 consented to the proposal for payment by instalments this Court has powers now to order payment by instalments. I have considered the two alternative proposals, suggested by the learned Counsel. Mr. Semu has suggested that the judgment debtor be given time of up to 3 months to pay another shs.10/= million and come up with a repayment schedule for the rest of the decretal sum. On the other hand, the Respondent has suggested, that: - (a) the entire balance of the decretal sum be paid by 31st December, 2007. (b) the payment should be guaranteed by two persons of good financial repute. (c) if payment is made later than the 31st December 2007, then he should pay an additional interim amount of shs.50/= million and the rest by 25th January, 2008. Given the history of the debt, and the time it has taken so far, and the time left up to 31st December, 2007 my view is that Respondent's suggestion to have the debt cleared by December 2007 is not realistic. On the other hand, again given the history of promises offered by the judgment debtor in the past, a prayer for 3 ti 6 months moratarium before paying shs.10/= million and coming up with a repayment schedule cannot be taken seriously. After considering all the above, I · think in the interests of justice, I would order that the balance of the decretal sum been paid as follows: - (a) The Respondent shall immediately file a bill of costs for taxation, ( so that the total amount to be paid is ascertained) and, after taxation, submit to the Court a repayment schedule of the balance of the decretal sum, interests and costs, which after discussion and approval by the parties, shall be followed by the judgment debtor. (b) After taxation, the decretal sum together with the taxed costs and amortized interests shall be paid in 12 equal monthly instalments effective from the date of taxation. (c) Before taxation the judgment debtor shall begin to pay shs.10,000,000/= per month effective 31st January 2008. ( d) The payment is to be guaranteed by two sureties for shs.80/= million each,. who shall each deposit with the 7 Court, certificates of title over their landed properties together with valuation reports on the said properties. (e) In case of any default, the properties of the guarantors shall be sold to pay any balance of the outstanding decretal sum. (f) If the judgment debtor prisoner is unable to produce the two sureties and defaults in paying any instalment due he shall be rearrested and detained in civil prison, to serve the remainder of the term. It is so ordered. S.A. MASSATI JUDGE 18/12/2007 1,305 words