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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