Omoke Oloo v Werema Magira 1983 Tlr 144 (Hc)

OMOKE OLOO v WEREMA MAGIRA 1983 TLR 144 (HC)

Court High Court of Tanzania - Mwanza

Judge Munyera J

October 18, 1982

CIVIL APPEAL 43 OF 1981

Flynote

Civil Practice and Procedure - Objections to attachment - Objection suit - Whether only way open to a claimant of property attached is objection proceedings - Order XXII rr. 57, 58, 59, 60, 61 and 62 Civil Procedure Code.

-Headnote

The appellant sued the respondent for the return of five head of cattle which were seized at the respondent's instance. The respondent claimed that these were stolen from him by the appellant's son who had already been convicted of stealing a number of head of cattle from the respondent. The appellant brought an objection suit in respect of the attachment, which was dismissed, the magistrate holding that the only way open to him was to bring objection proceedings under Order XXII rr. 57 and 58.

Held: 

(i) Order XXII rr. 57,58, 59, 60 and 61 do not provide that the only way open to a party objecting to an attachment is through the objection proceedings;

(ii) a decision in objection proceedings would not render a subsequent suit on the same dispute res judicata and so a party can decide to bypass objection proceedings and resort to a suit to recover his wrongly seized property.

Case Information

Appeal allowed.

No case referred to.

[zJDz]Judgment

Munyera, J.: The appellant was the plaintiff before the District Court of Musoma. He sued the respondent for the return of five head of cattle which were seized at the instance of the respondent. The story was that the appellant's son Otieno Amoke was convicted of stealing a number of the respondent's cattle. On 19/1/1981 the court, on the application of the respondent, seized the suit cattle. It is not clear from the record of the trial court whether the cattle were seized pursuant to orders in the criminal case or in a civil case. Whatever was the case the appellant filed this suit on 3/2/1981, less than a I month after the seizure. The judgment was delivered on 15/8/1981 and the appellant's suit was dismissed. Hence this appeal.

The trial magistrate found, and he was justified, that the appellant's son had his own home and took care of his own problems. The appellant had no legal responsibility for the latter's dark deeds. However the learned trial magistrate dismissed the suit. The reason turned around a point of law. In dismissing the suit he had this to say:

..The only defect being, as pointed out above that the cause of action was based on the wrong premise. The correct avenue is for the plaintiff to file objection proceedings...save as otherwise stated above, the suit stands dismissed. 

In admitting the appeal for hearing my learned brother Chua minuted: Admit to consider whether the Resident Magistrate was correct to hold that the only avenue available to appellant was objection proceedings.

On my part I have been unable to find any authority in support of the trial magistrate's proposition. I could only find provisions for procedure of investigating claims and objections in O.XXII rules 57, 58, 59, 60 and 61. I need not reproduce them here. E Suffice to say it that they don't provide that the only way open to a party objecting to an attachment is through the objection proceedings. I am fortified by rule 62 which provides:

Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit if any, the order shall be conclusive.

Nothing could be more express than the above provisions. It means that a decision in objection proceedings would not render a subsequent suit on the same dispute res judicata. This being so a party can decide to bypass objection proceedings and resortto a suit to recover his wrongly seized property. In my opinion the learned trial magistrate erred in dismissing the suit on that ground. Since he had found that the appellant's cattle ought not to have been seized he had no other choice except to order the return. I allow the appeal, set aside the decision of the trial court and give judgment for the appellant. The five head of cattle to be restored to him. He will also have his costs in both courts.

Appeal allowed.

1983 TLR p146

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