Civil Reference No. 7 of 2004
The Applicant, Suchak & Sons Co. Limited, sought leave to appeal to the Court of Appeal of Tanzania against a Ruling and Orders of the High Court (Commercial Division) dated 4 November 2003, made in execution proceedings arising from Commercial Case No. 40 of 2000. In that earlier ruling, the trial judge (Kalegeya, J.) had granted the Respondent/decree-holder's prayer to attach and sell two motor vehicles (Registration Nos. TZN 5294 and DO 4343) belonging to the judgment debtor (the Applicant) to satisfy an outstanding balance found to be USD 67,371. One of the vehicles had already been sold on TRA's order for USD 55,000, of which USD 31,059,175 (Tanzanian shillings equivalent) was paid to the Tanzania Revenue Authority to settle unpaid tax, leaving a balance which the Applicant contended should be deducted from the decretal sum. The Applicant was separately contesting that sale in Civil Case No. 228 of 2003 at Kisutu Resident Magistrate's Court against the Respondent and other parties, seeking return of the sold vehicle, a case still pending at the time of this ruling. The Applicant, dissatisfied with the attachment order, lodged a notice of appeal on 7 November 2003 and applied for certification/leave to appeal, supported by an affidavit of its Director, Nilesh Suchak, arguing that the order to attach vehicles worth over USD 100,000 to satisfy a debt of only USD 67,371 (given the Applicant had not provided a breakdown of vehicle values) and the treatment of the remaining sale proceeds raised serious points of law. The application was heard ex parte as the Respondent, though served, did not appear.
Whether the Applicant had demonstrated any point of law, or of law mixed with fact, arising from the High Court's Ruling and Orders of 4 November 2003 that merited certification for consideration by the Court of Appeal of Tanzania, such that leave to appeal should be granted.
The Applicant, through counsel Mr. Magafu, submitted briefly that the application should be granted because there were points of fact and law requiring resolution by the Court of Appeal. Relying on the supporting affidavit, the Applicant argued: (i) that the trial judge, having found the outstanding balance to be USD 67,371, erred by ordering attachment of two motor vehicles whose combined value exceeded USD 100,000, based merely on the Applicant's failure to provide a price breakdown for one vehicle; and (ii) that the trial judge, having acknowledged that USD 55,000 had been realised from the sale of vehicle DO 4344 (of which USD 31,000-odd was paid to the Tanzania Revenue Authority), failed to appreciate that the Respondent retained a balance of USD 24,000 which ought to have been deducted from the decretal sum. The Respondent did not appear and advanced no arguments, the matter proceeding ex parte.
The High Court dismissed the application with costs, holding that no point of law or fact, nor any point of law mixed with fact, had been shown that deserved certification for consideration by the Court of Appeal. On the first ground, the Court reasoned that value is determined by the state and condition of the properties rather than merely by numerical assumption, and the Applicant had failed to demonstrate how the value of the two vehicles exceeded the sum of USD 67,351 (the outstanding balance). On the second ground, the Court found the argument untenable because the disputed balance from the vehicle sale was still in the hands of the buyer, Bakheresa, and was itself the subject matter of a separate pending case (Civil Case No. 228 of 2003) in which the Applicant was challenging the very sale; it was therefore inconsistent for the Applicant to simultaneously treat that contested balance as available to reduce the decretal sum in the present proceedings.
This ruling illustrates the threshold applied by the High Court (Commercial Division) of Tanzania when considering applications for leave/certification to appeal to the Court of Appeal: an applicant must identify a genuine point of law, or of law mixed with fact, arising from the impugned decision, rather than mere dissatisfaction with the outcome. The judgment underscores that speculative or unsubstantiated assertions about property values, unsupported by evidence, will not suffice, and that a litigant cannot rely on facts or sums that are the subject of separate, unresolved litigation to challenge findings made in execution proceedings. The case serves as a practical example of judicial scrutiny at the certification stage, emphasizing that leave to appeal will be refused where the grounds raised do not disclose an arguable question warranting the attention of the appellate court.
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