Incar Tanzania Ltd vs R. M Mahenge (Civil Case No. 84 of 1995) [1999] TZHC 144 (18 November 1999)

,... ·IHEMlt J. -- IN TID HIGH CCURT OF T/,Nz-P,NIA ( D;.R f.'S SJ.LA;"JII DIST'R ICT RID ISTJ:rf) /,.T DA:1 ES S J.LAAM CIVIL CA.SL ;TJ. 84/95 JNCAR T.ANZl1NIA LTD. •o••ooctooooo••ooo•••O••o• cnooooocooooooooboooooeooo•"'o•eO RULING PLAWTIFF DEFEND/.\NT On 11th June 1999 the applicamt / judgment debtor in civil case No 84/95 filed in this court an application by way of Chamber Summons under Section 68 (e), 93, 95 Order XXI Rules 21 and 24 and Order XLIII Rule 2 of the Civil Procedure Code 19660 T'ne application accompanied by the Affidavit of RODERICK MKOLI MA.HENGE sought for the following pra.yers: (i) to order stay of execution of a decree issued on 7/11/96 pending the hearing of the application·filed on 3/11/97, (ii) to set aside a consent order of Fettement entered on 28/11/97. Coincidentally the day of filing the application in question war:, the last day of the notice of execution of ':',ale of the applicant/judgr.ient debtor's house Plot No. 27 Industrial Area Mbezi Beach. The applicant depones in his affidavit on m&tters wh:i.ch were contained in an earlier application filed on 4th day of November 1997 which was abandoned following a consent settlement which i•1as recorded by Chipeta J. on 28/11/97. The Respondent, the decree holder and court broker respectively filed their counter affidavit through the servicee of Genevieve Kato 1 learned advocate. The -!;hrust of the counter affidavit iP to the effect the.t the application haB no merit in view of the intervening events including the consent order recorded by the court. Before the application was heard Mr. Nyangarika filed a notice of preliminary objection on points of ·1a.w with regard to a defect in the counter affidavit. Mr. Nyangarik.?. in arguing the preliminary objection urged the court to find the applicant's application unchalleged in view of the incura.b:'. defects in the counter ·affidavit, a consequence that would allow the application to be granted as presented. IBoKato the learned counsel while conceding the defect in the counter affidavit, argued ;hGt the same ie saved by the fact that it contains facts which are part of the court record. MS. Kato contended further that even if the counter affidavit ii:- found to be incurable the court should teke cogni-sance th?t the ma.tter was finally ·determined in the preence of te pextiee on ~5/11/97. It iG thus res· judicata as the pe.rties were all present o Furthermore execution har:: already .... taken pl:::'ce by order of thfr: court dated 2"!/8/98. ·, C, • 0 0 ••• /2

-~~~~r: -tt..;--!'l-,...,.. , ,,,. t ,I' 2 Indeed the ·record shows the.t thi1- c-.)urt ha:=: fin:-:illy determined the .suit through the con.sent order of settlemet. on 28/11/97 in the presence of both parties. I 8.gree with the submission of ti8. Kato that the m-3.tter fa res judicate. to the extent that this very court h~ . .s no power ,fo deal with the matter as presented., It appear,s thnt the application h9.3. been filed with intention to delay the final d;i..spoaal of the execution crde:c. It is 1othL:g but an abuse of the· court process. and to tl':-9.t extent the application as filed is dismissed with costs not with Atandi;g that the counter affidavit as fil >:' :.s focurahly defective. Let execution proceed eB ordered for fin~l disposal of the suit. It is so ordered., S.IHEMA. JUffiE

18/11/99 Ruling delivered. before the pe.rti.es tode.y 18/11/99. ,, - ' \ ( . . .. /_.,) •,J-L·::,,- ✓,~ S.IHEHA JUWE 18/1'1/99