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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 B 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 C 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 D 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

E 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. F

Case Information

Appeal allowed.

No case referred to. G

[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 H 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

1983 TLR p145

MUNYERA J

on 15/8/1981 and the appellant's suit was dismissed. Hence this appeal. A

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: B

..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. C

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 D 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: F

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

G 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 resort

to a suit to recover his wrongly seized property. In my opinion the learned trial H

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, I

1983 TLR p146

set aside the decision of the trial court and give judgment for the appellant. The five

head A of cattle to be restored to him. He will also have his costs in both courts.

Appeal allowed.

1983 TLR p146

B

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