Jackson Musseti t/a Musseti Enterprises vs Blue Star Service Station (Miscellaneous Civil Application No. 53 of 1998) [2000] TZHC 617 (30 October 2000)

): I;;. ; ,,_. • ·I". ,,. ·tt:':-.,-- . ~ :· ::::_:·~ ~ :. : ------~ 'i7: :!-;'l,r.: -~ --~· . ~ .. ~ , . 'IN THE HIGH. ~0UR.T 1 F TANZANIA---: -"€f.- . ~ .. ' AT MWANZA MISCELLA.IBOUS CIVIL APPLICATION NO. 53 OF 1998 JACKSON MUS SETI t/a MUSSETI ENTERPRISES O •••••••••••• APPLICANT/ DECREE HOLDER VERSUS: BLUE STAR SERVICE STATION o ••••••••••• • • •• ., •••••••••• ., RESPONDENT/ , JUDGEMENT DEBTOR R U L I NG MREMA, JUDGE After hearing Mr. Muna, Learned advocate for the respondent- judgement debtor (Salum Mulji Shivji), and Mr. P 0 R.K 0 Rugaimukamu, Learned advocate for the Applicant-decree holder (JACKSONMUSSETI), with respect, I agree with Mr8 Rugaimukarnu that the respondent's advocate should not attempt to 11 hijack 11 the whole intent - and purpose of today's conference between the parties before me. The proceedings I are self telling and that is why,Lforthwith reject the respondent's advocate•s prayer to adjourn the proceedings with a view to enabling them .file another application for an order allowing them to pay the decretal sum by instalments. In order to appreciate my jud.gcrr,ent fc.,· refusing Mr. Muna• s prayer it's worthwhile re-stating the back ground or the circumstances which led to the arrest of the judgement de.btor. rt is undesputed fact that the applicant-decree holder .Jackson Musseti successfully sued the Judgement-Debtor•s Firm t/a.BLUE SERVICE STATION vide HC CIVIL CASE ID.. 65 OF 1994. Judgement was pronounced on 24/4/1997 • The Re::;pondent-Judgement Debtor appealed to the court of Appeal (T) but it collapsed for reason I find it irrelevant to restate here •. rt suffices to mention that the matter came to an end in the court of Appeal on 19/5/1998.

J -· / 2 .... Then on-the 6th of August, 1998 the Applicant-Judgement l)ebtor _obtained an order from this court warranting him to attach the judgement debtor 1 s motor-vehicle Toyota Land cruizer - Registration No. TZC 415 at Mwanza Murtlcipali ty (as it then was) o But for reasons not on record the Learned District Registrar Mro Hilla (a::; he 1.i1c:n was) endorsed at the ba_ck of the application for execution of the decree the following statement. 11 suspended until f-qrther noticell, and that was on 20/8/1998# Then on the 10th of December, 1998 the late learned advocate Bilaro lodged Misc. Civil Application Nao 53 of 1994 under ·order XXI rule 4o (a) and 35 - (1) of the C.P.C, 1966 praying for either 9f the following Orders: (1) That the judgement-debtor and/or one Salum Norjin Shivji be orally exained as to whether any and/or what debts are owing to the judgement- debtor and whether the judgement-,,debtor has any, and what other property or means of satisfying the decree; or (2) In the alternative, that execution of the decree be carried out by the arrest and detention as a civil prisoner of Salum Norjin Shivji t/a Blue star service station. (3) That this courtts Execution order dated 6/8/98 and the attachment warrant dated 18/8/98 be amended, depending on the results NOo ( i)' and (ii) hereinabove 0 The application, however, started to be causelisted in January, 1999 as disclosed by the evident record 0 The matter was brought for the 1st time before the trial judge on 10/5/1999 and because both the parties were absent it was adjourned to 19/8/1999e Then came the sad news on the death of the applica.ntt s advocate, the late B;i.laro., Advocate Mata ta was advoca.ting for the respondent and Mro Rutaisire 1 learned advocate, appeared for the applicant (instead of the late advocate) .. rt was on it was that dayLordered that chamber Application should be filed on or before

,.,j . . l 3 "' "' ,,.,,_ ., 2/9/1999 and reply; if any, by l6/9/1999. On two different occasions the proceedings had to be adjourned before the DR for rea.sons set out on record 0 Advocate Rugaimukamu surfaced during this period; apparentlr advocating for the applicant instead of Mro Rutaisire. When the applicati?n came up for hearing bn 5/6/200~ the learned advocate for the respondent Mro Matata was no where to be seen,' so was the respondent (Judgemertt-debtor).. Mro Rugaimukamu then informed this court that Mro Matata told him that he was never instructed by the respondent to take up the matter ·to and on the respondent• s behalf: The learned advocate went f'Urther to inform the court that the respondent cum J/debtor was evading service on the account of the fact that the court summons was not reflecting his name, but that of the firm which was being owned and managed by the respondent-Salum NUljin shivjio And for that reason the counsel applied, orally, in terms of Order XLIII Proviso 2 of the C.P.C, l966, and also Order XXIX rule 3 (a) of the same code to effect the service of the summons on salum No Shivji. The application was readily welcaned and granted. ()n 22/6/2000 the matter was before the DR and it was recorded to the effect that the respon-:.~r;,t (u.1..i;:;:r,cn+· "ebtor) was served but he defaulted to appear rt was therefore directed that the proceedings were to be placed before the trial judge for necessary order on 25/8/2000. On this J.Atter date advocate for the applicant drew my attention to the effect that the judgement debtor was effectively served on 16/6/2000 and he was required to enter appearance but he stubornly refused to obey the summons. E;Ven then, the court exercised its discretion to adjourn the proceedings and directed that fresh summons he issued in the name of Salum Shivji and he was ordered to appear on 26/9/2000. He was effectively served and, yet, he did not obey the summons. It was under those circumstances the learned counsel for the applicant applied for the arrest of the judgement ur.-ier order XXl rule lio (a) so -..,. ~

4 as to have him orally examined on the debt owing to him and to show cuase .. why he shcmld J;l.9.t. b~ crqer~<L to serve civil imprisonment 0 . In th~ result .: ·. :: ,. . ·: . . ... . . , . ·._. ·• . ... .. . . an order. .. was _mad~ tq hat .ff.ct, he_nc the judgeme11t-debtort El arrest by .• . . . . . . .. .. . .·.. -·· . . - . . . . -· J).S,So ?upeI'tntendel'lt Makbat .on. th~ 26/10/2000 and·: he 1!'Jci.:s. br,ou,ght - to me . . . ,, . . . : . . . .· . . ... ,• . . . ·. . , . '•• . . ., -·_t,.}o3{2 ,.P•m• on the arpe_ da,yq. A._s the. applicant• s advoca.te was. not aware ... , ... , . . . . . .. . ... . •.. _,, .. ,; -- . . . ,. ht:_a_rrest I. 13:qjq~~e th,e mate~ to 30/10/2000 __ so that Mr~ ,.Rugaimukamu -~ .• -·: 1 , ?,<?vJ.d. be, ntifi_e. _: 0.l'! _thi~, J,a.tter ;ct.at~. (30/10/2000) the Respndent : _j11dgerpnt del?:tor .9,ppe9-red, ;;::tl.so)u.s,new _advocate, Mro Mi.ma. · ; : • •. : • .. • •t ,: •. ,• •. 1. .:· ~ . . • • • • '•• , -· •.• . ~ . . ,.,. . . ·. _ Tqem r,M1.ip;;t ci,d .. qt,e.,ssed te: 'fourto 1 Hs subrr!ission, w_ith·due tspec½i was_ not ir)lp:ress.iy,- :.f9p ins.t.ead of addr,eE?sing the c,ourt on the . .... . . . . ; ;,, ,... . . .... •,· .. , .. ra], iss_ue pe,rtai?1.ng to th~ .. ?,rre.st .of t.q.e applicant he· ~.ent out of his !f .... ·. ?'. • • •• - • • ;..... ···: . ,• • • ... • ·- .·.:,;1Y,nd:pryed_,te .. c~-q.rt. tp <:'qjqurn}he, p,r:9ce_e_di,ngs to allow a proposed . apP,l-i.Gt.i<,m fpr. }?_ayrn.t py -i,tal_mentt> to. 1 be .• ,lo.dg$. and heard, notwi thstandinc the_ old_ pndt9S :app~~at9in ,.requiting him t9.,s.h9¥,. c:PJ3.e w,hY hi.s m/v 'IZC 415 should not be attached, or some other property and eiubs 0 quently sold in satisfaction of debt owing to him; or to show why he should not be . ' compelled td be detained as a civil prisoner. Also he did not give sufficient reason as why he was evading service or why after having been , I duly served .with ,.the ,court summons he was not attending ct:·J11,-·i<lJlpliance { ' , with the law. -'111.J!!Y judgement I find the respondent-judgetneril 0 ·dbtor a stuborn lot. rt does not require one to day with so many words the reason for the respondentt s un-couth and unbecoming behaviour'.. rt is an open secret that the applicant-decree holder has peen in posse;sion of his document· decree fror/Augt,' '1998 to date ''/ithot repeating the fruits entitled to him as the ·result ~:/the tortious wrong committed agaist him by the respondent.:.judgement debtoro rt is over two years now the decree holder could not execute the decree. And there has not be.en good cause shown by the judgement debtor explaining execution by way of. attaching his property should not take place. But instead, he has been deploying monkey-tricks to evade service and, hence,

.:I 5 execution of::.;tl:l.e de.e.::ag_?..ihst,,him. ·rt•·s the'' coui/tti tlU:ty"iibw ·t6 say. ___ · tlJ,at. e1;1oug4,J9 ,enpugh.;,and the::J.a.w is· always there to' protecf:th~ .::·- .\ ::\ ,· .. __ ,_ ...... , •. -· .. - ' . ' adjournme,n.t.,PY· Mr. !U,: ,].earned advocate ,for: the' ;respondent-'judgement ' ' . · .. !. ' . • : . ·;' .. · , ... ,,_ .•• , • . . da.btor. In the, up-shot\I :he1"e by grant th· appil 1 Cantt:s application/ · .. , i .. · '":. ·, '•· - I : 1 .. .,_ •·· , · _ , ' • ~ ;.. _ QJ'.ciz::i.μg,_,J;he. ,;judgement d btor Salum ·Norjiri Shiit>ji 1'>ay!:'·the · whole d,ecj:>etal "''"- . ..;.;. •• , •• ; • . ·- -- ' •. • ' • • t • ... , ' sum, interest & cost~. as per the - decree: in, the main ·smt~ And should . ~ . fl - ' - ·•· .' ·l . t . . . , · , : the judgement:debtor .fai;!.. to,;satisfy the dec;ee for.t:hw:tbh he'shall be . t . - . . . ',~ .( ' . . liabJ..e..:to be cormpi t.ted to prison immediately· therafter t stibject · to 'i',f. ... . . • - .. the:.t;icatio? of, the .pr;visions of:Order' fl rule'8i(2) of th'd~~.c, ,;-·· .· J:966;- o.r in the,: laterUqtiye ,he :Ls at liberty:-to,point ouf·;'to .th c6ilrt ' ,arry .. property or means he has for the satisfac:tie1n' ,b:t: the decee ±n h;_,.lesome • • .' w• • • • , ,• { • ·• • ' • • • • • • • . '. . . .· . '·_ ' . .. . , and, '.nQt::part;:.:t;hereof .(see· rule 40:(a) · crf O.){XI}.; Accordingly {f is so .... , ... \ ,··,-· ·--.---· ,-->=:-.;.::··:~ . . . . . .:· - l>;, •. . ' o:rdered~·<: .. : ,-1: ·.· ,.;·" '."i. ;;.: t' -·· . 1 AT MWANZA~ 30/10/2000 neiivered at Mwanza_, .·• ' A-f,, c.' Mf<EMA JUDGE in the.presence of tbe learned advocate for the Applicant Both the ·{\ri?'/ ... \ .- A. c. MREMA. . .JUDGE 30/10/2000. ,'. ·.J.i ~