Flipos Gebremedhin vs Asmara Transport co. Limited, misc commercial appliaction no 189 of 2023.

The Applicant brought the present application by way of chamber summons

and affidavit seeking for the following orders against the Respondent:

1)That this honourable Court be pleased to grant an order for attachment o f the Motor Vehicles with Registration Numbers T665

DZA; T621DZE; T644 DUH; T438 ECCand T653 DZA and or furnish security equivalent to US Dollars 89,285.00 and UK Pound Sterling 4,100.00 before judgment.

.2) Costs o f this application be provided for;

;3)Any other and further relief the Court may deem fit and ju s to grant.

In this case court provides contions for attachment before judgement as follows:

A more extensive judicial interpretation of the law on attachment before judgment is seen in the case of Raman Tech. & Process Eng.Co., v. Solanki Traders (5 ALL MR 44 (SC). In this case, the Supreme Court of India was interpreting Order XXXVIII Rule 5 of the Indian Code of Civil Procedure which is similar to the Order XXXVI Rule 6 of the Tanzania Civil Procedure Code. With a view to expounding the law in this area so as to

discern it and its applicability to the facts at hand, I would like to quote in extenso what the Supreme Court of India had to say on attachment beforeJudgment:

The object o f supplemental proceedings (applications for arrest or attachment before judgment, grant o f temporary injunctions appointment o f receivers) is to prevent the ends o f justice being defeated. The object o f Order38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation o f the decree that may ultimately be passed in favour o f the plaintiff, either by attempting to dispose of, or remove from thejurisdiction o f the court, his movables.

The Scheme o f Order 38 and the use o fthe words to obstruct or delay the execution o f any decree that may be passed against him in Rule 5 make it dear that before exercising the power under the said Rule,the court should be satisfied that there is a reasonable chance o f a decree being passed in the suit against the defendant.

 This would mean that the court should be satisfied that the plaintiff has a prima facie case. I t is well-settled that merely having a jus t or valid claim or a prima facie case, will not entitle the plaintiff to an order o f attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose o f his assets with the

intention o f defeating the decree that may be passed.

 Equally well settled is the position that even where the defendant is removing or

disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie

case. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be died against him.

The Indian Code of civil Procedure is a statute in parimateria to the Civil Procedure Code of Tanzania hence the judicial interpretation thereof forms a useful external aid of interpretation of the relevant Tanzanian legal provision. As a rule of statutory interpretation, similar language in statutes

with common purpose is interpreted in the same way.

The key cumulative and inseparable take-aways from the above analysis of

the case laws interpreting the provision on attachment before judgment in terms of Order XXXVI Rules 6 and 7 of the Civil Procedure Code are that:

(i)There must be reasonable chance of a decree being passed in the suit against the defendant. That is to say that the court should be satisfied that the plaintiff has a prima facie case.

(ii)The Plaintiff should also establish that the defendant is attempting to remove or dispose of his assets.

(iii)The Plaintiff must establish that the removal or disposal of the assets by the defendant is being done with the intention of

defeating the decree that may be passed against the defendant by obstructing or delaying its execution.

(iv)The order should not be granted on mere assertions and speculations without cogent and tangible evidence.

(v)That the Respondent has first to be given an opportunity to show cause why he should not furnish security before an order for

attachment of his property before judgment can be eventually made.

I can add that, in terms of Rule 6(2) of Order XXXVI of the CPC, the Applicant is also required to specify the property required to be attached and the estimated value thereof, unless the court otherwise directs.

In the upshot, I find that the Applicant has failed to prove in this application the necessary circumstances as to warrant the invocation of the court’s powers under Order XXXVI Rules 6 and 7 of the Civil Procedure Code.Accordingly, the application is hereby dismissed with costs