Daniel Thomas Mwanakatwe vs Idd Abdul Lalika and Others (Miscellaneous Civil Application No. 30671 of 2025) [2025] TZHC 8547 (19 December 2025)

1 THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA MISCELLANEOUS CIVIL APPLICATION NO. 30671 OF 2025 CASE REFERENCE NO. 202512031000030671 DANIEL THOMAS MWANAKATWE ..............................................APPLICANT VERSUS IDD ABDUL LALIKA .......................................................... 1 ST RESPONDENT LAURENT ISAACK NDELWA ............................................. 2 ND RESPONDENT YOHANA DAVID MALYATABU .......................................... 3 RD RESPONDENT RULING 8 th & 19 th December 2025 NONGWA, J. The applicant has applied for attachment before judgment of the motor vehicles with registration number T461 EGZ and T151 EKF, Make: TOYOTA, Model: COASTER. It is made under order XXXVI Rule 6(1) and Section 105 of the Civil Procedure Code [CAP 33 R.E 2023] and any other enabling provisions of the law. The application is supported by an affidavit of the applicant. The respondents filed counter affidavit opposing the application together with notice of preliminary objections to the effect that; 2 1. The application is incompetent for being supported with the Affidavit containing a defective jurat of attestation. 2. The application is supported with affidavit not endorsed with the signature of the drawer/drafter. 3. The application is bad in law for being supported with an Affidavit containing a false and incorrect verification clause 4. This application is res - judicata to Misc. Civil Application No. 26121 of 2025 (Case Reference No. 202510091000026121) of Mbeya district court. When the application came for hearing, Messrs. Essau Sengo and Atranus Mkago Method both learned counsels appeared representing the applicant and respondents respectively. Point of preliminary objection and main application was submitted simultaneously, with the understanding that ruling on objection would be first and should it fail then merits of the matter would be decided. Starting with preliminary objection, Mr. Method submitted that the application was supported with defective affidavit in jurat of attestation, the attesting officer Kamru Habibu Msonde did not specify if the 3 deponent was known to him or introduced by another person. He also said in the jurat there is the word “delivered” at Mbeya which does not bring legal meaning under oath and that qualification of a person who administered oath is just written advocate, without disclosing if is a commissioner for oath. As to the second objection it was submitted that there was no endorsement of the drawer by signing. On verification clause in third objection, counsel submitted the affidavit has 13 paragraphs but verification clause refers to paragraph 14 not in the affidavit supporting application. This he said makes the verification clause defective. The fourth objection that the application is res judicata he submitted there was Civil Application No. 26121 of 2025 before District Court of Mbeya which was between the applicant and other persons but same subject matter. In reply to defective jurat of attestation, Mr Sengo submitted that it is not fatal for the advocate to show whether he knew the deponent or he has been introduced by someone else. On the wording delivered at Mbeya counsel said the respondent’s counsel did not cite any law 4 which was contravened. He added, should anything be wrong it is cured by section 9 of the Oath and Statutory Declaration Act [Cap 34 R: E 2023]. On endorsement of the drawer, it was submitted the same is shown in the rubber stamp, he added that the electronic record shows it is signed. On verifying non - existing paragraph counsel conceded but said the remedy is to expunge the said paragraph. About res judicata, he said all elements were not met. Having heard parties on the preliminary objections, I will start with the journey to dispose them in serium. On the first objection that the attesting officer did not disclose if knew the deponent or was introduced to him, I agree with Mr. Sengo that the counsel for the respondent did not cite any law or case law to support his argument. However, the attestation of an affidavit is regulated by section 10 of the the Oaths and Statutory Declarations Act [Cap 34 R: E 2023] which has received approval in cases of Peter Mabimbi vs The Minister for Labour & Youths Development & Others , Civil Application No. 88 of 2017 [2018] TZCA 229 (5 October 2018; TanzLII) and Jamal Msitiri @ 5 Chaijaba vs Republic , Criminal Application No. 1 of 2012 [2017] TZCA 410 (10 July 2017; TanzLII) as requiring the Commissioner for Oaths to indicate in the declaration either to have known the deponent personally or the deponent before him must have been identified to him by a person known to him personally. Upon perusing the jurat of attestation under scrutiny the attesting officer did not indicate whether the deponent was introduced to him or was personally known, which mean either one may be correct and Mr. Method did not suggest that the deponent was not known to the commissioner for oath. Akin situation was discussed in Beatrice Mbilinyi vs Ahmed Mabkhut Shabiby, Civil Application No. 475/01 of 2020 [2021] TZCA 3559 (12 March 2021; TanzLII) and the court said; ‘The third point of objection relates to non - indication in the jurat of attestation whether the deponent was known to the attesting officer or identified to him by another person. As rightly argued by Mr. Mwitasi, it is our considered view that since the attesting officer did not indicate that the deponent was introduced to him by someone else, it means that he knew her personally.’ [Emphasis supplied]. Further to the above, the jurat of attestation under section 8 of the Notaries Public and Commissioners for Oaths [Cap 12 R: E 6 2023] requires only to indicate when, where and before whom such affidavit was sworn. See Zuberi Mussa vs Shinyanga Town Council , Civil Application No. 100 of 2004 [2007] TZCA 373 (16 March 2007; TanzLII) and Samwel Kimaro vs Hidaya Didasi , Civil Application No. 20 of 2012 [2013] TZCA 391 (11 October 2013; TanzLII). Even if it is so assumed that it was important to indicate if the deponent was known to the attesting officer or introduced by some else still the irregularity as rightly pointed by Mr. Sengo is cured by section 9 of the Oaths and Statutory Declarations Act. Further to that the referred case on strict compliance with section 10 of the Oaths and Statutory Declarations Act was before the introduction of the overriding objective principle under section 4 and 5 of the Civil Procedure Code [Cap 33 R: E 2023] that court should strive to attain substantive justice rather than on technical issues which can be avoided. On indicating the attesting officer as advocate and not commissioner for oath, section 3 of the Notaries Public and Commissioners for Oaths, provides; ‘3(1) Any of the following persons shall, except as provided in subsection (2), be entitled to practise as a Notary Public and Commissioner for Oaths in Mainland Tanzania in accordance 7 with the provisions of this Act and to levy fees in accordance with the First Schedule (a) an advocate; and (b) a person entitled to practise as a Notary Public in England, Scotland, Northern Ireland or the Republic of Ireland.’ It follows therefore that the advocate is the commissioner for oath save when suspended from practising or his name is removed in the roll of advocates as stipulated under sub section 2. Therefore, the jurat of attestation as demonstrated above conforms to the law and the first objection fails. On endorsement by the drawer the same is not here or there, the application was filed electronically as required by the Judicature and Application of Laws Act (Electronic Filing) Rules G.N. N. 148 of 2018, rule 13(2)(3) as to signing document by the registered user was complied with. Further the uploaded PDF format in accordance with rule 12 of the electronic filing rules the drawer is endorsed. As to verifying non - existing paragraph, it is true that paragraph 14 is nowhere in the affidavit but features in the verification clause and Mr. Sengo admitted to this. In my considered the omission is merely a typographical misstep which does not render the affidavit invalid or 8 impairs the facts deponed therein. Similar scenario was discussed in Miski Ramadhani Chaurembo vs Eqbal Ebrahim Halday , Civil Application No. 1696 of 2025 2025 TZCA 1208 (25 November 2025; TanzLII), the court observed that; ‘Moreover, it cannot be said, as Capt. Bendera appears to argue, that by verifying paragraphs not appearing in the affidavit the applicant deliberately intended to misled the Court or that the affidavit was tainted with fatal lies. The record does not support such an inference. Instead, as persuasively submitted by Mr. Sambo, the authorities in Jamal S. Nkumba & Another v. Attorney General (supra); Ramadhani Mikidadi v. Tanga Cement Company Ltd (supra); and Sanyou Service Station Ltd v. BP Tanzania Ltd (now Puma Energy Tanzania Ltd) (supra) demonstrate that even where the erroneously referenced paragraphs were to be expunged from the verification clause, the affidavit would remain substantively intact. The misnumbering is, consequently, no more than a clerical error.’’ Regarding res judicata doctrine, its applicability statutorily provides under section 11 of the Civil Procedure Code. For clear understanding, I wish to reproduce the provision as hereunder; ‘A court shall not try any suit or issue in which the matter directly and substantially in issue has been directly and 9 substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.’ The above provision requires five conditions to be cumulatively met ((i) the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit. (ii) The former suit must have been between the same parties or privies claiming under them. (iii) The parties have litigated under the same title in the former suit (iv) The court which decided the former suit been competent to try the subsequent suit. (v) The matter in issue must have been heard and finally decided in the former suit . See; Peniel Lotta vs Gabriel Tanaki & 2 Others [2003] TLR 312 and Badugu Ginning Co. Ltd vs CRDB Bank Plc & Others , Civil Appeal No. 65 of 2019 [2021] TZCA 158 (3 May 2021; TanzLII). From the arguments by Mr. Method, conditions (ii) and (iii) that is the suit is not between the same parties or either is litigating under the same title in the former application, with such concession from the 10 respondent, I agree with Mr. Sengo that doctrine of res judicata is not applicable to the matter at hand. From the discussion above, all four points of preliminary objection fails for devoid of merit and it is hereby overruled. Now coming to the main application, Mr. Sengo adopted the affidavit in support of the prayers in the chamber summons for praying the motor vehicles with registration no. T461 EGZ and T151 EKF all make Toyota Coaster be attached before judgment in Civil Case No. 30120 of 2025 pending before this court. He submitted the applicant is the owner of the said motor vehicles under the name Power of Love Songwe. Counsel referred to paragraph 6 of the affidavit and Annexure A6 evidencing that the applicant is the one who made all payment of the moto vehicles. It was submitted that the respondents filed complaints at Songwe Police station over ownership of the said Motor vehicles which was later arrested and detained at Songwe Police station. He said they were required to submit ownership document, applicant sent all necessary documents but the respondents presented registration of the social 11 group named Power of Love Songwe. He argued the motor vehicles were handed to the respondents. Further submission was that the respondents tempered with TRA system and removed his names in his TIN and replaced with theirs and currently the respondents are shown to be the owners of Power of Love Songwe the fact not true. He contended the motor vehicles do not belong to the respondents who are now using them to the detriment of the applicant and that there is likelihood to get damaged and cause loss to the applicant. He added, the applicant stand to suffer irreparable loss and was committing himself to pay any costs in case the applicant loses the main case. Concluding, Mr. Sengo submitted that the respondents presented registration of Power of Love of Songwe but documents as to its proprietor was not attached to the affidavit. In response to the above, Mr. Method submitted that the applicant was not the owner as per the documents attached to the affidavit rather Power of Love Songwe as per motor vehicles Registration cards, identity of the owner is TIN 172749615. It was responded argument that the 12 applicant is the owner of TIN 122941329 trading as Danny FM Music Production. Counsel went on to state that the three respondents are leaders of Power of Love Songwe which started in 2023 and officially registered in 2025 and has more than 700 members. Referring to paragraph 7 of the joint counter affidavit it was submitted the applicant had personal access with BRELA system and changed Power of Love Tanzania to be Power of Love Songwe did so without the permission of the members of Power of Love Songwe. Further that the applicant did not show how the motor vehicle came to the possession of Power of Love Songwe if he purchased them, he added the fact that he made purchase was on behalf of Power of Love Songwe. Finalizing it was submitted that criteria in Attilio vs Mbowe (1969) HCD 284 and Christopher P . Chale vs Commercial Bank of Africa , Misc. Civil Application No. 635 of 2017 [2018] TZHC 2538 (13 March 2018; TanzLII) were not fulfilled for granting injunction orders. 13 In rejoinder the applicant stood to his submission that was the owner of the motor vehicles and that the case was established for granting the orders sought. Having dispassionately considered the rival arguments by the parties, the question is whether this Application is meritorious. The applicant is seeking for an order of attachment before judgment of the motor vehicles pending the determination of the main suit between them. The prayer is mainly predicated under Order XXXVI rule 6 of the Civil Procedure Code, which provides; ‘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, c) 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 14 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. (3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.’ The applicability of the above provision was discussed in the case of Sea Saigon Shipping Limited vs Mohamed Enterprises (T) Limited , Civil Appeal No. 37 of 2005 [2005] TZCA 36 (11 August 2005; TanzLII), the Court observed that; ‘One important element to be established before an order for attachment before judgment is granted, is the defendant's intention to obstruct or delay the execution of any decree that may be passed against him....... The general powers for attachment of property before judgment are under Section 68(b). The procedure for attachment before judgment is prescribed under Order XXXVI Rule 6.... Generally speaking, these grounds are applicable to applications for attachment before judgment under Order XXXVI Rule 6 and 7 15 although the defendant has first to show cause why he should not furnish security before his property is attached...’ Interpreting Order XXXVIII rule 5 of the Indian Code of Civil Procedure which is similar to Order XXXVI rule 6 of our CPC, the Supreme Court of India in the case of Raman Tech. & Process Eng. Co. vs Solanki Traders (5 ALL MR 44 (SC) stated; ‘The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions, and any defendant from defeating the realization of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The Scheme of Order 38 and the use of the words to obstruct or delay the execution of any decree that may be passed against him in Rule 5 make it dear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied that the plaintiff has a prima facie case. It is well - settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his 16 assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him.’ The prominent author Mulla on the Code of Civil Procedure, 18 th Edition has this to say; ‘The court which passes the attachment before judgment passes the same under O 38, r 5 of the Code of Civil Procedure. The said rule gives authority to the court to pass attachment before judgment after being 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 may try to dispose off the property. Before issuing such order of attachment, the court must satisfy itself that the defendant is about to dispose off the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court.’ From the above judicial precedents and commentary, before the Court issue an order for attachment before judgment the following criteria must be satisfied; 17 (i) There must be reasonable chance of a decree being passed in the suit against the defendant. That is to say that the court should be satisfied that the plaintiff has a prima facie case. (ii) a real risk of dissipation, removal of assets or a flight risk; (iii) balance of convenience favours preservation over non - intervention; (iv) order should not be granted on mere assertions and speculations without cogent and tangible evidence; and (v) the respondent has first to be given an opportunity to show cause why he should not furnish security before an order for attachment of his property before judgment can be eventually made. Looking at the arguments of the applicant, he concentrated on arguing and establishing the first criteria, that is establishing prima facie case . The central issue as per counsel argument was on ownership of the motor vehicles with registration number: T461 EGZ and T151 EKF, Make: TOYOTA, Model: COASTER. However, looking at the conditions referred above and the law on application for attachment before 18 judgment, the decision whether to grant or refuse it lies with condition (ii)(iii) and (iv) which the applicant never made any attempt to establish it. I have read each and every document which was attached to the applicant’s affidavit and respondents’ counter affidavit, all are at ones that the motor vehicles with registration number T461 EGZ and T151 EKF, Make TOYOTA, Model: COASTER are in name of Power of Love Songwe. There is contest as to person running this business name of Power of Love Songwe, the applicant claiming sole control while respondents alleges, they are leaders of that club which has more that 700 members. I asked myself if all documents relied by both sides is in the name of Power of Love Songwe where is the said entity in this matter. Based on evidence in record and per the law governing applications for attachment before judgment, the applicant has failed to establish by evidence that there is real risk of dissipation, removal of assets or a flight risk by the respondents. I take inspiration from the case of Geipam group limited vs Bondeni seeds Limited , Misc. Civil Application No. 82 of 2022 [2023] TZHC 19360 (7 February 2023; TanzLII) in which Hon. Kamuzora, J. observed that; 19 ‘... an order for attachment before judgment usually affects the rights of the owner of the property to deal with the same before any decision is made against him. Such an order should not be granted on mere assertions and speculations without cogent and tangible evidence....’ From the above discussion, the application is hereby dismissed, owing to the parties relationship, I order no costs. V.M. NONGWA JUDGE 19/12/2025 Dated and Delivered at Mbeya this 19 th Day of December 2025 in presence of parties, Ms Neema Siwinga holding brief of Mr. Essau Sengo and Mr. Atranus Mkago Method both learned counsels for applicant and Respondents respectively. V.M. NONGWA JUDGE