KANGAULU MUSSA v MPUNGHATI MCHODO 1984 TLR 348 (HC)

KANGAULU MUSSA v MPUNGHATI MCHODO 1984 TLR 348 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

July 13, 1984

CIVIL CASE 8 OF 1983 B

Flynote

Civil Practice and Procedure - Attachment order - Objection to attachment order -

Objection by a person not mentioned in the warrant of attachment - Allowed.

Civil Practice and Procedure - Attachment order - Dissatisfaction with a warrant of

attachment - Whether a person C may bring a fresh suit where he could also have

proceeded by way of objection.

-Headnote

The defendant attached the plaintiff's cattle in execution of a court decree. The

plaintiff opened a fresh D suit in the High Court instead of proceeding by way of

objection in the court which ordered the attachment. It was argued that the

attachment was unlawful and a trespass since the plaintiff was not E mentioned in

the attachment warrant. It was further argued that it was proper to bring a fresh suit

because the plaintiff was not involved in any way in the suit which led to the

attachment warrant.

Held:(i) As a matter of practice a person may bring a fresh suit where he could also

have proceeded by way of objection;

(ii) the court has discretion to entertain or not to entertain a suit which could

be brought by way of F objection depending on the circumstances of each case;

(iii) any person aggrieved by the execution of a decree may object to the court

which passed the decree and that covers the plaintiff. G

Case Information

Suit dismissed.

No case referred to. H

G. Alimwike, for the plaintiff.

[zJDz]Judgment

Lugakingira, J.: This was a suit founded on tort, it being alleged by the plaintiff that

the defendant unlawfully attached his cattle in execution of a decree passed by the

District Court of Dodoma in Criminal I Case No. 122 of 1981, to which he

1984 TLR p349

LUGAKINGIRA J

A (the plaintiff) was not a party. The question posed by this court and argued this

morning was whether the plaintiff should not have proceeded by way of objection in

the court which ordered the attachment.

B Mr. Alimwike who appeared for the plaintiff argued that the attachment was

unlawful and a trespass since the warrant of attachment was directed to one Sasine

Mnama, the accused in Cr. Case No. 122 of 1981, and not the plaintiff. He said,

therefore, that there was no warrant of attachment as far as the C plaintiff's cattle

were concerned and therefore no need to object to the court which issued the

warrant. The defendant who appeared in person countered this by saying that the

cattle he attached were in fact those of the judgment - debtor, Sasina Mnama, and

that they were handed to him by the plaintiff. He was surprised that the plaintiff had

since changed his mind on the matter.

D I am aware that a person may bring a fresh suit where he could also have

proceeded by way of objection. This is not a statutory rule but it seems to be accepted

in practice. That being so, it means that the court is vested with discretion to

entertain or not to entertain a suit which could have been brought by E way of

objection, depending on the circumstances of each case. The circumstance of this

case do not reveal any grounds upon which it would be more to the advantage of the

parties nor that justice would be better served for this court to take over a matter in

which the District Court has jurisdiction by way of objection. Whether the plaintiff

was named in the warrant of attachment or not is beside the point. The F statutory

rule is that any person aggrieved by the execution of a decree may object to the court

which passed the decree and that covers the plaintiff.

There should also be some order and sanity in the institution of proceedings. Where

a matter has started G in one court it is proper for that matter and the resultant

effects to be concluded in that court.

If anyone is still aggrieved, there is of course a right of appeal. But for a higher court

to take up such a matter directly just because practice permits it, is to import disorder

in the administration of justice and I am H personally not prepared, where I can help

it, to be a party to such disorder.

In the circumstances, I am not satisfied that Mr. Alimwike has raised sufficient

grounds upon which to dispense with the jurisdiction of the Court which ordered the

attachment. I also think that in the circumstances of this case, the matter can only be

properly and speedily dealt with by the District Court, I and full justice can only be

obtained there. I say that full justice can only be obtained there

1984 TLR p350

because if the plaintiff were to succeed in this court, and an order were made for the

restoration of the A cattle, the defendant would have to go back to the District Court

to obtain another warrant of attachment. This Court cannot issue one. If the plaintiff

thinks he can succeed, therefore, let him succeed in the District Court which also has

the power to bring the matter to a logical conclusion. B

For these reasons, the suit is struck out. The plaintiff is at liberty to proceed by way

of an objection in the District Court. I make no order as to costs since this matter was

raised by this court.

Suit dismissed. C

1984 TLR p350

D