19980326 TZHC Dar es Salaam

:, IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO.256 OF 1996 THE NATIONAL BANK OF COMMERCE . . . . . . . . . . . PLAINTIFF VERSUS . AHMED TRUCU COMPANY LIMITED & 7 OTH.ERS. . . . . . DEFE:h"DAMTS . , ' RULING MSUMT, JK: This is an application for settlement before judgment filed under Order XXXVI rule 6 and section 95 of the Civil Procedure Code. Together with the affidavit of one s.w. Kissenge who.is an officer of the applicant's bank, the chamber summons is also accompanied with a list of registration numbers of the motor vehicles, alleged to be the property of the respondents, which the applicant requests to be attached. Besides the respondents, the application is also contested by an objector, who claims to be the owners of some of the motor vehicles in question. In total 99 motor vehicles have been listed for attachment. In the main suit the applicant. is suing the respondents for recovery of shs.6,535;183,713/80 obtained. The allegation in support of the application as contained in the said chamb~r application of Kissenge is that theie is a possibility that respondents may transfer and taken away the said fleet of vehicles. This allegation has been refuted by first, third and fourth respondents. In fact third respondent has denied that he is owning any of the listed vehicles. On the other hand the . • 2 objector company has listed twelve vehicles out of the 99 vehicles against which attachment order is sought, claiming them to he owned by itself . and fourth respondent on hire purchase arrangement. To support this claim the objector has produced copies of registration cards for the said vehicles bearing the names of the objector and the fourth respondent as joint owners. " This assertion has not been seriously controverted. Hence I am of respectful finding that the aforementioned twelve motor vehicles belong to the fourth respondent and the objector. As noted earlier, first, third and fourth respondents are challenging the allegation that ...respondents are intending to take and transfer the motor vehicles in issue as baseless. This contention is respectfully valid. Deponing on this allegation paragraphs 7 and 8 of the affidavit of Kissenge say: 7. That there is a possibility of the defendants to transfer the said vehicles as amount claimed is too big and even defendants themselves to flee away. 8. That there is a possibility too of the - j Vehicles being taken away before judgment, therefore imposing the applicants bank to suffer irreparable loss and damages. What in fact transpires from these paragraphs is that because the amount of money claimed in the main suit- is colossal, it is likely that respondents might transfer the said vehicles and runaway from the country. This is not enough. In order to be -• 3 entitled to the prayed order of attachment of the listed motor vehicles applicant has to satisfy the court by affidavit otherwise that the respondents with intent to obstruct or delay the execution of any decree that may be passed against them are about to dispose of or remove from the local jurisdiction of the court all the said motor vehicles or part of them. This requirement is definately not met by merely applicant expressing fear or possibility of the motor vehicles being disposed of or removed from the local jurisdiction of the court. Move so when such fear or possibility is based on the assertion that the _-7 decretal amount claimed in the main suit is quite substantial. Among other documents, applicant has produced to the court a letter from the office of the Director of Criminal Investigation informing the applicant that out of the listed vehicles, twenty of th_em belonging to the first respondent have been impounded by the police on a court order in order to satisfy a tjecree issued in civil case number 253 of 1992 in favour of Co-operative and Rural Development Bank. If this is true, then it is obvious that there is no possibility for these twenty vehicles being disposed of or transferred outside the court's jurisdiction. Furthermore these vehicles are already subject for a court order hence they cannot be attached by another court order. In conclusion, contrary to the requirement of order XXXVI rule 6 of the code, applicant has failed to satisfy the court that respondents are actually intending to dispose of or remove from the jurisdiction of the court the .motor vehicles in question 4 or part of thP.m. Tt1e court is also of u~spect.ful opinion that twelve of these vehicles belong to the objectors and in so far as U-i:i.s objector .i.R not among the defendants in the main suit the vehicles cannot be attached. And lastly the twenty vehicles already attached j_n execution of a court decree in favour of CRDR cannot properly be subject for another order of at.tachrnent. For these reasons the appJication for attachment of the listed vehicles is dismissed with costs. For the avoidance of doubt it j_s herel>Y stated that except for the prayer that the application for attachment before judgment be disallowed, the other prayers of the objectors are not granted. ,JA,JI KIONC...OZI 26.3.98 For the Applicant: Maira For the Respondents: Kal.olo/Ismail For the Objector: Msemwa.