On his part, Dr. Lamwai, learned counsel for the respondent, conceded that where any property is attached before judgment under ORDER
XXXVI, and there is an objection by the objector, the objectorfs claim must be investigated in the manner provided for the
investigation of claims to property attached in execution of a decree for the payment of money. But the learned counsel pointed out
that, in the instant case, the vessel was not attached under ORDER XXXVI but was arrested under Section 68(c) @ 68(e) of the Civil
Procedure Code. The learned counsel contended that, for an attachment before judgment under ORDER XXXVI Rule 6, a particular procedure
has to be followed such as furnishing security or production of the property or its value at the disposal of the court, and that
the hearing has to be inter partes. The learned counsel contended that, in the instant case the respondent company was not invoking
the powers of Order XXXVI where attachment or arresting a sea going vessel is not provided for; but that it was invoking the powers
of Section 68(c) @ 68(e) which allow a court to make such other interlocutory orders as may appear to the court to be just and convenient.
Dr. Lamwai further contended that, Order XXI Rules 40-62 which refer to attachment of property is inapplicable in the instant case
where there is no attachment of property but arrest of a sea going vessel, and that, the suit at the Commercial Court which was instituted
under Rule 62 was based under an inapplicable provision of the law. Dr. Lamwai conceded that, in the certificate of urgency filed
on 27.7.2004 in Civil Case No. 8 of 2004, the words gthe hearing of the application for attachment before judgmenth were
used. But he was quick to point out that, a certificate of urgency is not a pleading and that, the relevant pleading was the chamber
summons which showed that it was made under Section 68(c), and that it was for the arrest of the vessel in dispute.
Furthermore, the learned counsel pointed out that, in Civil Case No. 58 of 2004 before the Commercial Court, the appellant was asking
the Court to determine ownership which had already been dealt with by Ihema, J. in Civil Case No. 8 of 2004. In that respect, the
learned counsel contended, the learned trial judge was right in holding that the matter was res judicata and an abuse of the court
process. Dr. Lamwai observed that, Order XXI Rule 62 was meant for establishing a different cause of action and not the one which
has already been adjudicated upon. The learned counsel contended that, the cases cited by Kesaria refer to garnishee orders under
Order XXI Rule 35, and that the learned trial judge was right in distinguishing them from the instant case. The learned counsel was
of the view that, the only remedy open to the appellant is to wait for the final determination of Civil case No. 8 of 2004.
In a rejoinder, Mr. Kesaria for the appellant, pointed out that, the words garresth and gattachmenth under
Order XXXVI are used interchangeably, and that, whether arrested or attached, the end result is the same. The learned counsel insisted
that the learned trial judge was bound by the decision of this Court in the Valambhia case (supra), and that the circumstances in the instant case are similar as far as the remedy for an objector under Order XXI Rule 62
is concerned, that is, to institute a fresh case.
As observed earlier, this appeal is against the decision in Commercial Case No. 58 of 2004. But, upon close consideration of the rival
submissions by learned counsel for both parties, it became clear to us that the whole matter hinges on the ruling delivered on 8.10.2004
by Ihema, J., pursuant to an application which was filed in Civil Case No. 8 of 2004 on 27.7.2004 by the current respondent, Mohamed
Enterprises (T) Ltd. We therefore invited the learned counsel for both parties to address us on the following issue:
g Whether the application before Ihema, J. dated 27th July, 2004, and the proceedings which led to the Ruling dated 8th October, 2004, were competent.h
Addressing us on the point, Mr. Kesaria contended that, the
application before Ihema, J. was
incompetent on the following
:-
One, according to paragraphs 5 and 6 of the respondentfs affidavit accompanying the chamber summons, it is very clear that the
respondent was applying for attachment before judgment, argued the counsel. The learned counsel pointed out that, the proper provision
of the law for attachment before judgment is Order XXXVI Rule 6, and not Section 68(c) as cited by the respondentfs counsel
in the chamber summons. The learned counsel contended that, Section 68(c) @ 68(e) is only applicable where there is no specific provision
of the law. The learned counsel pointed out that, in the instant case, there is a specific provision for attachment before judgment,
that is, Order XXXVI Rule 6, and that it was improper for the respondent to cite Section 68(c) which is similar to section 95 which
is a saving of inherent powers of court. It is the learned counselfs submission that failure to cite a proper provision of
the law renders the application incompetent. He cited the decisions of this Court in Citibank Tanzania Limited v Tanzania Telecommunications Company Limited and Others ? Civil Application No. 64 of 2003 (unreported), and Civil Application No. 65 of 2003 (unreported) between the same parties, and
the National Bank of Commerce v Sadrudin Meghji ? Civil Application No. 20 of 1997 (unreported).
Two, the learned counsel contended that, one important element to be established before an order for attachment before judgment is
granted, is the defendantfs intention to obstruct or delay the execution of any decree that may be passed against him. It was
the learned counselfs submission that, in the instant case, there is no evidence that the appellant intended to obstruct or
delay the execution of any decree, and that, at any rate, the appellant was not aware of the suit until when it saw it in one of
the local newspapers.
On his part, Dr. Lamwai, learned counsel for the respondents, contended that, the
application was properly before Ihema, J. for the following reasons:-
One, the learned counsel conceded that the proper provision of law for an application for attachment of property before judgment is
Order XXXVI Rule 6. But the learned counsel pointed out that in the case before Ihema, J., the respondent was not applying for attachment
before judgment but for arresting a sea going vessel, and that there is no specific provision for arresting a sea going vessel; hence
Section 68(c) @ 68(e). The learned counsel contended that Section 68(c) @ 68(e) is wide enough to cover the situation at hand. The
learned counsel explained out that he cited Section 68(c) instead of 68(e) because there is a typographical error under Section 68
whereby subsection (c) has been written twice covering even what is supposed to be (e). However, the learned counsel observed that,
the anomaly was rectified by Ihema J. in his ruling. In his view, the rectification by Ihema, J. was proper because under Section
58 of the Evidence Act, 1967, courts are presumed to know the law.
On which one is superior to the other between Order XXXVI and Section 68, Dr. Lamwai contended that Section 68 which is in the main
Act is superior to Order XXXVI which is in the schedule to the Act. However, Dr. Lamwai conceded that, section 68 is supplemental
proceeding, but was quick to point out that, in his view, section 68 is supplemental to civil proceedings and not supplemental to
Order XXXVI. The learned counsel emphasized that, since the respondent was applying for the arrest of a sea going vessel and not
for attachment of property before judgment, and that since there is no specific provision for arresting a sea going vessel, the provision
of Section 68(c) cited in the chamber summons was proper, and that, the application was competent and properly before Ihema, J.
Two, Dr. Lamwai conceded that the decisions in the Valambhia cases (supra) are proper authorities on what remedy is open to the defendant
where his property has been attached before judgment. But those cases are irrelevant in the instant case where the matter is about
the arrest of a sea going vessel and not attachment of property before judgment, submitted the learned counsel. The learned counsel
also countered Kesariafs submissions that citing Section 68 is more or less the same as citing Section 95. Dr. Lamwai contended
that the two provisions are neither equal nor similar in that, while Section 68 declares the powers of the Court in preventing the
ends of justice from being defeated, Section 95 saves the powers of the Court in preventing abuse of court process.
Lastly, Dr. Lamwai was skeptical on whether this Court can use its revisional jurisdiction under Section 4(2) of the Appellate jurisdiction
Act, 1979 as amended, to revise Ihema J.fs decision in the instant appeal where it is not appealed against.
In his rejoinder Kesaria insisted on what he had submitted earlier.
As observed earlier, the appeal before us is against the decision in Commercial case No. 58 of 2004. But in the course of hearing
the appeal it became clear to us that the facts in the matter are so much intertwined with the application in High Court Civil Case
No. 8 of 2004 before Ihema, J. that it is almost impossible to arrive at a proper decision in this appeal without considering that
application. We therefore invited learned counsel for both parties to address us on the competence or otherwise of that application
before Ihema, J. and the proceedings which led to the decision dated 8.10.2004 which ultimately led to the institution of Commercial
Case No. 58 of 2004. The rationale behind it is to see whether we can use our revisional jurisdiction under Section 4(2) of the Appellate
Jurisdiction Act, 1979 as amended by Act No. 17 of 1993 to revise it in the event we consider it to be incompetent. Dr. Lamwai, learned
counsel for the respondent, has expressed his doubt whether we can properly use our revisional jurisdiction to revise Ihema, J.fs
decision which is not directly the subject matter in this appeal. In his view, we would only be seized with that power if the appeal
before us would be against that decision. For easy of reference we reproduce Section 4(2) of the Appellate Jurisdiction Act, 1979,
as amended by Act No. 17 of 1993. It reads as follows:-
4(2) For all purposes of and incidental to the hearing and determination of any appeal
in the exercise of the jurisdiction conferred upon it by this Act, the Court of Appeal shall, in addition to any other power, authority
and jurisdiction conferred by this Act, have the power of revision and the power authority and jurisdiction vested in the court from
which the appeal is brought.h
In our view, since the facts in
the application before Ihema, J. are so much intertwined with those in Commercial case No. 58 of 2004, and since Commercial case
No. 58 of 2004 is subsequential to the decision in that application before Ihema, J., we think we have jurisdiction and power to
revise that decision even though it is not appealed against in the instant appeal. At any rate, it could not be appealed against
by virtue of Order XXI Rule 62 which declares findings in objection proceedings to be final unless ordered otherwise in a subsequent
suit. In the premises, it is our holding that, under the provision of Section 4(2) cited above, we have jurisdiction and power to
revise the application before Ihema, J. in the instant appeal. We now move on to the application before Ihema, J.
We have carefully considered the
arguments and submissions by learned counsel for both parties.
It is common ground that the application before Ihema, J. was lodged under Section
68(c) of the Civil Procedure Code 1966, which later Ihema, J. in his ruling rectified to read 68(e). It is also common ground that
when that application was made, the main suit Civil case No. 8 of 2004 was s
till pending. In other words, it was made before judgment. According to the chamber summons (Ex-parte), the current respondent who
was the plaintiff was praying the court to issue an order for the arrest of the 12th defendantfs ocean going vessel named Can Gio Maid berthed at the Port of Dar es Salaam, before judgment.
The crucial issue is whether that application was properly before Ihema, J. Kesaria
says it was not, because it was made under a wrong provision of the law, and that since it was for attachment before judgment, it
ought to have been made under Order XXXVI Rule 6. But Dr. Lamwai says it was properly before Ihema, J. and that, the provision of
law cited thereat is the correct one, because the application was for the arrest of a sea going vessel and not for attachment of
property before judgment, and that there is no specific provision for arresting a sea going vessel.
These expressions gattachment before judgmenth and garresting a
sea going vesselh have greatly taxed our minds. But it would appear they are terminologies used interchangeably depending on
the nature of the property to be detained. Where the property to be detained is any property other than a sea going vessel, the word
used is gattachmenth. But where the property to be detained is a sea going vessel, the word used is garresth.
Likewise, if what is to be detained is a human being, the word used is garresth. For example, where a defendant attempts
to defeat the ends of justice, a court can issue a warrant of arrest to arrest him and compel him to show cause why he should not
give security for his appearance (Order XXXVI Rule 1(b)). Whether it is the attachment of property before judgment or arrest of a
sea going vessel or arrest of a human being, the court derives its general powers for so doing from Section 68, and follows the procedure
prescribed in the schedule, that is the Orders. The general powers for attachment of property before judgment are under Section 68(b).
The procedure for attachment before judgment is prescribed under Order XXXVI Rule 6. The powers for arresting a human being, that
is, a defendant who is attempting to defeat the ends of justice are provided for under Section 68(a). The procedure for arresting
such a defendant is prescribed under Order XXXVI Rule 1(b). The powers for ordering a temporary injunction are provided for under
Section 68(c). The procedure for obtaining a temporary injunction is prescribed under Order XXXVII. The powers for making such other
interlocutory orders as may appear to the court to be just and convenient are provided for under Section 68(e). The procedure for
making any such other interlocutory orders is prescribed under Order XXXVII.
It is to be observed that Section 68 is supplemental proceeding. It summarizes the
general powers of the court in regard to interlocutory proceedings. This section is similar to Section 94 of the Indian Code of Civil
Procedure where it is also specified as a supplemental proceeding.
