Filbert Lutubila vs Marijani Joseph (Civil Case No. 25 of 1991) [1998] TZHC 2087 (8 August 1998)

,· IN TEB HICJ: r3cm1T OF Tt..NZANIA CIVIL CASE NO. 25 OF 1991 FILBERT LUTUBIJA ••ooc,eoeoooo••••oo•oooAPP:SLLANT VERSUS MARIJ ANI JO.SEPH •• o o o •• e •••• o ••••••••• o Jit:SPOI\J""DENT RULING ,__._..,... . ..,,. Ma.ckanja, Jc Plaintiff Joseph Marijnni brour;ht o.. .::.;uit ac;,:;inst Filbert Andrew Lutubija t/a Lutubija Enterprises fr,r recvery o-Y sever· 1 reliefli The defendant was direr:;ted tn file ti, 0 . -:Jritt);_1 st:7.teir:ent of defence but, as the record shows, clirl not do so. It was, in consequence, directed that the plaintiff c 1 ,':l prove his co..se _eE,xte. That was done and a decree ex ;earte wa2 P-~l:cSCd in his favour. The ·reliefs h,:: ,:,;ot 1.,ra.s a..'11 eviction order against the defendant 9..Ild a si;;iple r1, .. -i:-iey· decree in the sum of Shs. 23,360,649/50.' In the course of executing that decree property c'.}.1e::(ed tc, be the property of the judgment debtor was attached., T1.1,, j-;__F:<::i:-1e:1-t '..2.e::,tor's wife, alleging that the property that was attached 1 K1,:mgeJ. to her, has filed objection proceedings against that execution. :.Adelaide Damas Marijani, the cb,jector, has submitted that at one time the l:i.tigants were business parters,, Their relationship became sour and ultimately it went asundero That· -?..fter some time the plaintiff surrendered the suit premises. It was d thnt point ir; timo that the objector began a business of her own in the suit prenises, c:implete with a business licence in her own right. That busii1css licence, Noo B.000110l+05, 1;.ras issued on 31st May, 1996. Her stock-intro:JG, she swears, 1:Hs the property that was attached in execution of the :'.:,lai;1tiff 1 s decree a.go.inst -t_;he judgment d-,,'i:>tor. The decree - holder zu1d the applicant were each represented by learned counsel. It is r,:cthcr i,.nusual that learned counsel would not limit themselves to the issues ':,~fore then. Insten.cl of addressinc; themselves on the single issue 'b.fore them they strayed in :::-..cc'.1,sc,-:i::ns e.nd c0unter accousation of frande The issue here is -,hether the property attachec: belcmf.:'GC, to the· judgment-- debtor. If, a$ it is alleged, the decree wac obtained by frand, the remedy does not reside in c-bj ection proce•.:;,::inr;s. It mu,:;t 1e persued in proceedings intended to have the. ex parte decree set ,3.s:lde •.. •

Unless it be set aside the one who owns it has 2. right to execute it. The decree-holder accuses the objector of ,ibusinc c,=1urt process 1,ecause she i.s shielding her hush:md F,,,;::'.:i.r:.;:;t execut i0n of th,2 :1ecreeo To him~ even thouc11 th8 :msines.:, hc,s no,,, c\t,.ngcd h'1n.:s :frcni the litic.;ants to her, the sho:;x;oocl.s in her ;3;:,op 1,e1on:: to M:,r:i: .-:,ni Ji;ntcrprises, her husband's husines,s ntJ_me,. I o.rn foi fro''l :)cinr; pe:c,suD::leJ,, The objector has a right to mm property. 'I'ho_t property \·Jill :rer112in hei~ until the decree-holder proves, for instance, th.-J-:: 11•2r co.pitc.l is l::::undere.'1. money advanced to her by the judgment-debtor in on effort to defeat the decree. In the absence of su<;:h proof Emy exer::ution levied on her property in satisfaction of her husband's lic,,:iJ_ity is wronsful ,:ml unlawful. There is also a pr:iyer thc:t the eviction ordm'.' be set -3.side. I am sure the objector is a stra.nger to th,"-t order bec,::,11Gc 1 it is :lirected · against the judgment-debtor. 1 1':.'lis pr,.;rc,r ,.;ouL: the::ofore f:d.l. Upon the foregoing re:Jsons the objection in rela.tion to ·the attachment of the objector's property succeed.so It is accordingly set a.side. The objection in respect of the eviction order fails. In the event the objection is allowed to the extent shown; it is otherwise di,smissecl in some other respects. Appearances: Mr. Maira, AdvocDte': F::ir Decree - holder In person: For pplicant I , ---:::·---"---· ---·€>.-1~

• L/ JO lo i\i:1 c 1,::'-~lj [l 8/8/1998