Ruling TABASAM

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISC. CIVIL APPLICATION NO 10240 OF 2024 (Arising from Civil Execution No. 45 of 2023 originating from labour Revision No. 45 of 2022 of the High Court of Tanzania at Mwanza)

THE REGISTERED TRUSTEES OF TABASAMU PRIVATE SECONDARY SCHOOL ……………………………..………... APPLICANT

VERSUS ANETH SADATH IDRISA ………..….…….. 1STRESPONDENT/DECREE HOLDER MWEMA BAKARI LIWALI …………........ 2ND RESPONDENT/DECREE HOLDER TABASAMU PRIVATE SCHOOL@ TABASAMU SECONDARY SCHOOL ……………... 3RD RESPONDENT/JUDGEMENT DEBTOR

RULING 15th July & 13th September 2024 CHUMA, J. This application was preferred under Order XXI Rule 57(1) & (2), 58 and 59 of the Civil Procedure Code, Cap 33 R.E 2019 (the code). The court is being moved to investigate whether School Buses with Registration No. T991DVF and T897 DCM together with a CRDB Bank Account No. 0150334580100 (the properties) which are subject to attachment in Labor Execution No. 45 of 2023, belong to the judgment debtor herein. The court is further asked to release the said properties from the intended attachment for the reasons that they belong to the applicant herein. 1 Briefly, the 1st and 2nd respondents were employed by the 3rd respondent herein as a typist and accountant respectively. Their employment was terminated on 6.10.2021. The 1st and 2nd respondents unsuccessfully filed Labor Dispute No. CMA/MZ/ILEM/284/2021/129/2021 before the Commission for Mediation and Arbitration (CMA). The CMA dismissed their claim for the reason that their employment was not terminated rather they absconded. The 1st and 2nd respondent filed Labour Revision No. 45 of 2022 before this court and they won. This court ordered the 3rd respondent to pay the 1st and 2nd respondent compensation of twelve months’ remuneration, one month's salary instead of notice, unpaid salaries, and severance allowance. The 1st and 2nd respondent filed execution, Execution No. 45 of 2023

against the 3rd respondent praying for attachment and sale of School Buses with Registration No. T991DVF and T897 DCM, garnishee order nisi to be followed by garnishee order absolute for TZS. 13,643,300/= against Account No. 0150334580100 and arrest and detention of the managing director of Tabasamu Secondary School, Patrick Christopher Masahi. The 3rd respondent raised preliminary objections against the said application for execution. According to the joint affidavit of the 1st and 2nd 2 respondent’s counter affidavit, the preliminary objections and the application are yet to be determined. The 1st and 2nd respondents raised five points of preliminary objections that; 1. The contents of paragraphs 5, 6, 8, 9, 11, 13, 14, 15, 16 and 17 of the Applicant’s Supporting Affidavit are fatally defective because they contain hearsay evidence, submissions, arguments, opinions, and prayers instead of pure facts.

2. The verification clause of the Applicant’s supporting affidavit is fatally defective for wrongly verifying that the contents of paragraphs 5, 6, 8, 9, 10, 11, 13, 14, 15, 16 and 17 thereof (which contain hearsay evidence, submissions, arguments, opinions, and prayers instead of pure facts) are true to the best knowledge of the deponent Kulwa Samson Ndulila.

3. The applicant’s supporting affidavit is defective because it is not endorsed by and does not show, the person who drew it; 4. The Application is incompetent because the Object and the Judgement Debtor constitute the same institution, and they are substantially the same.

5. The application is incompetent because it was instituted in the absence of any order for attachment in the pending application No. 45 of 2023 between the respondents. The raised preliminary objections disposed of by way of written submissions. The submissions for the 1st and 2nd respondents in support 3 of the preliminary objections were filed by Peter Makenya, personal representative whereas Mr. Kulwa Samson Ndulila, learned Advocate filed reply submissions for the applicant. I will consider the submissions of parties while determining the grounds of appeal. I feel compelled to start with the third and fifth grounds of appeal because if sustained may dispose of the application entirely for being incompetent. the third point of preliminary objection challenges the affidavit supporting the application for being defective for want of endorsement and the name of the drawer. It was the submission of Mr. Makenya that the affidavit is not endorsed contrary to section 44(1) of the Advocates Act, Cap. 341 R.E 2019 which requires the name of the drawer to be disclosed and the drawer to endorse it. Further reference was made to the case of Amina Mhongole Vs. Medical Store Department (MSD), Revision No. 331 of 2016 (unreported). In reply, Mr. Ndulila was of the view that legal documents in court must be considered as a whole, not in isolation. That, in the instant application, the

applicant filed not only an Affidavit before this Honorable Court but also, the Certificate of Urgency and Chamber Summons which indicates Advocate Kulwa Samson Ndulila as a drawer. He therefore prayed for this point of preliminary objection to be overruled. 4 I have considered the submissions of both parties. Literally, both parties are in consensus that the name of the drawer in the affidavit is lacking, and no endorsement thereof. Without ado, I disagree with the argument by the counsel for the applicant that the court shall refer to the name and endorsement of a drawer in the Certificate of Urgency and Chamber Summons. Each document for the use of court needs to be endorsed separately for authenticity. In an application like this one, the affidavit is very important as it is the only basis of facts to support the prayers advanced in the chamber summons therefore it must be accurate and reliable. It is the law under section 44 (1) Advocates Act, Cap 341 R.E 2019 that, the drawer of the document need to indicate his name and endorse the same. In the case of Robert Ibengwe Vs. The Director Hotel Tilapia (T) Ltd, Civil Application No. 4 of 2010 (unreported) the court of appeal held on page 6 that; “it is true that there is no endorsement on the document in question contrary to section 44 (1) Advocates Act, Cap 341 of the Laws of Tanzania… The applicant was, therefore, required

to endorse the affidavit, especially by signing her signature thereon. Apparently, this was not done… In my view, the 5 language used in the above provisions is coached in mandatory terms because of the desire to achieve one main aim to authenticate the document in issue. If the above sections had been performed in the instant case, no doubt, that would have helped in authenticating the affidavit in question. For the above reasons, I sustain the respondent on points (b) and (c) of the notice of preliminary objection. The application is accordingly struck out with cost” (Emphasis added). Again the court of appeal in the case of Albert Braganza & another Vs. Mrs. Flora Laurdin Braganza, [1992] TLR 307. “But I am satisfied that the Rules have not been complied with. Section 44 of the Advocates Ordinance requires strict compliance and this is lacking in the present instance. So the application is in effect irregular.” Being guided by these authorities, I am of the considered view that the affidavit supporting this application is incurably defective. This point of preliminary objection suffices to strike out this application. However, I will also determine the fifth point of preliminary objection as it concerns with timing of this application. 6 According to Mr. Makenya, this application has been instituted in the absence of an order for attachment because the application for

execution is still pending. Mr. Ndulila is of the view that the principle of objection proceedings has been narrowed by Mr. Makenya. To him, the same entails a legal process that allows a person whose property is in danger to be attached or already attached for execution to object. I have considered the argument for and against this point of preliminary objection. As I have stated hereinabove, the application was made under Order XXI Rule 57(1) & (2), 58 and 59 of the Civil Procedure Code (the code). I will quote the provisions hereunder; 57.-(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other respects, as if he was a party to the suit: (2) Where the property to which the claim or objection applies has been advertised for sale, the court ordering the sale may postpone it pending the investigation of the claim or objection. 7 58. The claimant or objector must adduce evidence to show that at the date of the attachment, he had some interest in, or was possessed of, the property attached.

59. Whereupon the said investigation the court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment debtor at such time, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.” (bolding rendered for emphasis) Reading between the lines of the above provisions, I need not stain muscles reasoning that this application was prematurely filed. The basis of these provisions is to allow a person to object to attachment when at the time of attachment, that person had interest. After investigation and when the court is satisfied that the objection has merit the resulting relief is a release order of the attached property, wholly or to such extent as it 8 thinks fit, from attachment. In circumstances, one may hardly notice what this court is heading to as far as this point is concerned. I disassociate with the reasoning of Mr. Ndulila that this objection under the above provisions of law may

be filed when there is a danger of attachment or where the property has already been attached to do so will amount to pre-empting an application for execution which is pending before the Deputy Registrar. In my final analysis, this application is premature and incompetent before this court for the reasons herein above advanced. The two points sustained, suffice to dispose of this application without venturing into the remaining points of objections. The application stands struck out with cost. It is so ordered. DATED at MWANZA this 13th day of September 2024. W. M. CHUMA

JUDGE 9 Ruling delivered in court virtually in attendance of Mr. Kulwa Samson advocate for the applicant, Mr. Peter Makenya personal representatives for the first and second respondents and in absence of the 3rd respondent this 13th day of September, 2024. C. KISONGO

DEPUTY REGISTRAR 10