Mbaraka v Hiyala and Another (Miscellaneous Civil Application No. 21 of 1999) [2000] TZHC 683 (19 September 2000)

188 TANZANIA LAW REPORTS [2002]T.L.R. A deduct funds from account 25 of 549 to repay the loan on account 18-0009. As for lien, we can only say that it does not attach to the balance standing to the credit of the customer ’ s account with his bank. The B balance is part of the bank ’ s general funds and also a debt due from the bank to the customer. This is because of the nature of the relationship between a banker and a customer. The bank uses customer ’ s deposits as its own but undertakes to repay an amount equal to that paid in, c with or without interest either at call or at fixed time. Thus the role of the bank is that of a debtor while that of the customer is of a creditor. (The roles are reversed where an account is overdrawn). So, the balance is treated as if it were the property of the bank. D Now, a person cannot have a lien over his own property ad especially when the property is also in his possession. (See Ellinger and Lomnicka pages 107-11, 183 and 692). Therefore, for reasons given above, we dismiss the appeal with E costs. It is so ordered. MRS NURU MBARAKA v. AWADHIABEID HIYALA AND BAH ATI ABEID HIYALA _ HIGH COURT OF TANZANIA ATMTWARA (Kaji, J.) h MISCELLANEOUS CIVIL APPLICATION No. 21 OF 1999 Civil Practice and Procedure - Execution of Decree - Application for execution of decree — Application for execution made to a magistrate other than the j one who passed the decree - Whether the other magistrate may hear and determine application.

MRS NURU MBARAKA v. AWADHIABEID HI YALA AND ____________________________ BAHATI ABEID HI YALA __________________________ W Magistrates ’ Court - Jurisdiction - Jurisdiction of District Magistrates - Whether A one district magistrate may overrule another district magistrate. Civil Practice and Procedure - Attachment of property - Order of attachment and sale of property jointly owned by the judgment debtor and a third party - Whether the property may be attached. Mrs Nuru Mbaraka and Nurdin Abeidi Hiyala entered into an agreement to hire motor vehicle, at a rental price of TZS. 900 000. per month. Nurdin secured this agreement with a Right of Occupancy over Plot Number 413 Block J, Mtwara Township. The house was jointly owned with the other heirs of the late Abeid Hiyala, the respondents herein. Nurdin defaulted to pay the rent and Mrs Nuru Mbaraka successfully sued him in Mtwara District Court for TZS. 3 958 000, being the rental price or, in alternative, for an order to sell the house at Plot Number 413 Block J, Mtwara Township. When she applied for attachment of the house (in execution of the decree), the application came before a different magistrate, not the one who had passed the decree. On the other hand, the respondents objected to the attachment of the house, as persons having interest in the house. The other Magistrate was not sure whether he had jurisdiction to hear the matter and sent the matter to the High Court for directions. Held: (i) Since the magistrate who granted order of attachment and sale of the house was still there, this matter ought to have been assigned to that magistrate, (ii ) The order for sale of the said house was wrongly made in the first place as p the house was not owned by Nurdin alone and the mortgage was not for the benefit of the other heirs. Order accordingly Statutory provision referred to:

1. Civil Procedure Code 1966, Order XLI, rules 3, 4 RULING . (Dated 19 September 2000) Kaji, J Mrs Nuru Mbaraka was the plaintiff in Mtwara District Court Civil Case Number 12 of 1998 where the defendant was Nurdin *

190 TANZANIA LAW REPORTS „ [2002]T.L.R. A Abedi Hiyala. In that case Mrs Nuru had averred that on 3 June 1998 she leased her motor vehicle, a Land Rover 110 Defender Reg. Number MT 3029 on the said Nurdin on condition that the said Nurdin would pay her TZS. 900 000 per month. Subsequent to that lease, Nurdin surrendered the Right of Occupancy on Plot Number 413 Block J within Mtwara Township as security in the event of default. The schedule of payment was stipulated in the said lease agreement. After several months Nurdin paid only TZS. c 800 000. He could not pay any more. Mrs Nuru sued him and claimed for the following reliefs:

1. Payment of TZS. 3 958 000. " D 2. In the alternative for an order for sale of the security at Plot Number 413 Block J Mtwara Township.
2. Interest on the decretal amount at commercial rate from the date of default till payment in full. E
3. The usual costs.
4. Any other relief the court could deem proper to grant. Nurdin admitted liability to a tune of TZS. 3 040 000. Judgment on admission was entered on that amount. The case proceeded in respect of the contested amount. Final judgment was to a tune of TZS. 3 340 000 which included TZS. 300 000 as fuel costs. Mrs Nuru was also awarded the costs of the suit. The Trial Magistrate dismissed G the prayer for sale of the security on the ground that a remedy for an equitable mortgage is not outright sale of the security. That final judgment was delivered on 23 March 1999. Later a Bill of Costs was filed to a tune of TZS. 176 000. It was taxed and allowed at TZS. 136 500. This Was on 25 May 1999. By then Nurdin had paid TZS. 200 000 towards the satisfaction of the decree. Later Mrs Nuru applied for execution of her decree by attachment j and sale of the security. Nurdin objected but his objection was overruled. This was on 3 June 1999. That house was attached.

MRS NURU MBARAKA v. AWADH IABEID HIYALA AND BAHAT1 ABEID HIYALA 191 When it was proclaimed for sale, Nurdin ’ s younger brother Awadhi A Abedi Hiyalla and his sister Bahati Abedi Hiyalla got the wind. They filed an objection. That objection came before another Magistrate and not the one who had ordered for the attachment and sale of that house. The record is not clear as to why that application was not b assigned to the very Magistrate who had ordered the attachment and sale of that house. The learned Magistrate entertained some doubts as to whether he had jurisdiction to grant the order prayed for, which would amount to overruling his fellow Magistrate who had ordered c the attachment and sale of that house. He also doubted the validity of the order for attachment and sale of the very house which another Magistrate in the main judgment had dismissed a prayer for sale of the same. The learned Magistrate referred the matter to this court for direction. In short that is the gist of the matter. Going through the record and the relevant documents filed therein, there is no doubt that: (i) The house on Plot Number 413 Block J which Nurdin mortgated E belonged to his father the late Abedi Hiyalla before his death. (ii) At the time when Nurdin purported to mortgage it, it had not yet been distributed to the rightful heirs as their in heritance. (iii) Awadhi Abedi Hiyala and Bahati Abed Hiyala are among the rightful heirs. (iv) When Nurdin purported to mortgage it to Mrs Nuru he purported to do so without their knowledge and consent. G (v) There is nothing indicating that the mortgage was for the benefit of all rightful heirs. (vi) Nurdin conned Mrs Nuru by purporting to be the owner of the said house. (vii) Had Mrs Nuru been careful enough she would have realized that Nurdin was not the owner of that house because the Right of Occupancy which Nurdin surrendered to her had the name of Abedi Hiyala. i

192 TANZANIALAW REPORTS [2002]T.L.R. A With all these, it is very clear that had the objection proceedings been assigned to a proper Magistrate, the order for attachment and sale would have been lifted as had been prayed for. It was not assigned to proper Magistrate in the sense that, since the Magistrate who had B ordered the attachment and sale of that house was still there, it should have been assigned to him. It was improper to assign it to another Magistrate under those circumstances, because he would be incompetent to grant the order prayed for as doing so would amount to overruling C his fellow Magistrate who was still there. That would only have been proper if the former Magistrate would have ceased jurisdiction. It is upon the above reasons that I do hereby direct that the order for attachment and sale of the said house be lifted, and Mrs Nuru D should look for other properties of the judgment debtor Nurdin (if any) for execution of her decree, or look for other legal means of satisfying her decree. This direction is to be forwarded to the Trial Court for compliance in terms of Order XLI, rule 3 of the Civil 1 Procedure Code, 1996. Costs if this Reference to be in the cause as per Order XLI, rule 4 Civil Procedure Code 1966. AUTO SOKONI LTD v. NBC (1997) LTD. HIGH COURT OF TANZANIA G (Commercial Division) AT DARES SALAAM (Bwana, J.) h COMMERCIAL CASE No. 32 OF 2000 Banking - Banking and non-banking business - Whether proper party to be sued is NBC Ltd or NBC Holding Corporation - Section 10(l)(e) National j Bank of Commerce (Re-organization and Vesting of Assets and Liabilities)Act 23 of 1997.