IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(COMMERCIAL DIVISION)
MISC. COMMERCIAL APPLICATION N0.5009 OF 2024
(Originating from Commercial Case No. 106 of 2018)
BETWEEN
NATIONAL BANK OF COMMERCE LIMTED.................... DECRE HOLDER
VERSUS
MAPELE ENTERPRISES COMPANY LIMITED..................1STJ/DEBTOR
AYOUB SAMSON SANGA ................................................. 2nd J/DEBTOR
AMIE SADICK SANGA (Administratrix of the estate of the late Sadick Samson
Sanga) ................................................................................................. 3rd J/DEBTOR

AND
AMIE SADICK SANGA ..................................................... THE OBJECTOR
DIXON MAHUMBI KITIMA T/A
MAJ EM BE AUCTION MART................................................ RESPONDENT
RULING
Date o f last order: 1 2 /0 6/2 0 2 4
Date ofruling:05/07/2024

AGATHO, J.:

This ruling deals with a novel issue in our jurisdiction. That is, whether
an administratrix of the estate of a deceased judgment debtor can be an
objector of execution proceedings against the judgment debtors in which she
represents the deceased judgment debtor's estate. In other words, can she be
an objector in execution proceeding in which she is a party? The ruling
emanates from preliminary objections raised by Dr. Onesmo Kyauke for the
Decree holder. It has two limbs:

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 (1) The objection proceedings is untenable because the judgment debtor
and the objector are the same person.
(2) The counter affidavit filed by the 3rd judgment debtor is bad in law
as one cannot swear an affidavit on one hand and a counter affidavit
on the other.

In terms of legal representation, for the decree holder was Dr. Onesmo
Kyauke, Advocate, for the 1st and 2nd Judgment Debtors stood Mr. Amin
Mshana, Advocate while for the 3rd Judgement debtor appeared Mr. Jeston
Justin, Advocate. The objector was present in person flanked with her advocate
Mr. John Lingopola.

To put matters in perspective, on 15/05/2024 the Court heard the parties'

submissions on application of the applicant to join in the execution proceedings
as administratrix of the 3rd judgment debtor. The court granted the amendment
of the application to include Arnie Sadick Sanga as the administrator of the
estate of the 3rd judgment debtor and remove the name of Lucian Samson
Sanga. Along with that, and for the sake of justice and to ensure that the
application for objection of execution proceedings is not rendered nugatory the
order for maintenance of status quo was also granted.

On 12th June 2024, when the application for objection of execution

proceedings was set for hearing a notice of PO had been filed in court. Before
the court Dr. Kyauke submitted before the court that the decree holder has
raised an objection with two limbs:

1. The objection proceedings is untenable because the judgment debtor and

the objector are the same person.

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 2. The counter affidavit filed by the 3rd judgment debtor is bad in law as
one cannot swear an affidavit on one hand and a counter affidavit on the
other.

Dr. Kyauke submitted that the decree holder has raised the POs on the
point of law that the objection proceedings is untenable because the judgment
debtor and the objector are the same person. Second, the counter affidavit filed
by the 3rd judgment debtor is bad in law as one cannot swear an affidavit on
one hand and a counter affidavit on the other.

It was submission of the learned counsel that the decree holder raised
an application in this court to execute the decree origination Commercial Case
No. 106 of 2018 and also the judgment of the Court of Appeal, Civil Appeal No.
381 of 2019 between the decree holder and three judgment debtors who are
Mapele Enterprises Company Limited, Ayubu Samson Sanga, and Arnie Sadik
Sanda(Administratrix of the estate of the late Sadik Sanga). Now, the decree
holder filed an application for execution of the decree against the above-
mentioned judgment debtor. Arnie Sadik Sanga, Administratrix filed objection
proceeding (Misc. Commercial Application No. 5009 of 2024. The objector filed
an affidavit in support of the orders sought in the chamber summons in his
capacity as the objector. And also filed a counter affidavit in her capacity as the
administratrix of the estate of the late Samson Sadik Sanga (3rd judgment
debtor).

It was Dr. Kyauke's view the application is bad in law because one cannot
initiate civil proceedings against himself because he will be conflicted. When
one is appointed administrator of the estate, he steps into the shoes of the
deceased person, and actually acquires powers to do what the deceased person
would have done if he was alive. So, he can sue or be sued. Although does not
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mention him as agent, the reason being that if there is an agent then there
must be a principal because if the principal dies, then agency terminates. An
administrator of the estate is not agent because there is no principal. However,
one cannot distinguish the deceased and the administrator or administratrix of
his estate. Therefore, when dealing with administratrix is as if we are dealing
with the deceased we cannot distinguish the two. Dr. Kyauke submitted that in
this case one cannot distinguish Arnie Sanga as the objector and Arnie Sanga
as the administratrix of the estate of the late Samson Sadik Sanga because they
are the one and the same person.

He went on submitting without citing any case law that in our

jurisprudence, a person cannot swear an affidavit and then swear and counter
affidavit because affidavit and counter affidavit are written evidence. Moreover,
one cannot sue as objector on one hand and swear affidavit and go on the
other side swear a counter affidavit against his own evidence. She will be highly
be conflicted. It is like an advocate who appear as a witness and then after
evidence in chief he starts to cross examine himself. The advocate will be highly
conflicted, and the evidence cannot have any value.

Dr. Kyauke submitted that it would have been different if one is suing a
company in which she is shareholder. If that happens then the pleadings should
have been signed by a principal officer of the company on its behalf. But the
plaintiff or applicant cannot sign the pleadings on his behalf and then goes
around to sign pleadings on behalf of the company. That will create conflict of
interest. The decree holder's counsel suggested that the objector was not
supposed to join Arnie Sadik Sanga administratrix. It would have sufficient to
raise an objection and not to go around and file counter affidavit as
administratrix of estate of the 3rd judgment debtor (late Samson Sadik Sanga).

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According to Dr. Kyauke a counter affidavit means an affidavit opposing an
affidavit. He opined that the objection is untenable as the objector is conflicted,
given her position as the administratrix of the late Samson Sadik Sanga (the 3rd
judgment debtor). He invited the court to strike out the objection with costs.
He prayed that in case the court finds the objection has no merit then costs be
in the case.

Mr. Mshana for 1st and 2nd respondents supported the preliminary
objections. But gave a suggestion as to the consequences of the PO. He
submitted that he supports a position that one cannot be a witness for the
prosecution and having tendered evidence and turn around and testify as
defence witness. The position does not have any law supporting it and no case
law because it was not intended to happen. Common sense does not allow it,
and neither is logic. He submitted that looking at the affidavit supporting the
application in the verification clause it was verified in respect of the facts best
known to herself Arnie Sadik Sanga. In the counter affidavit apart from merely
stating that she is the administratrix still the verification was made in respect
of facts best known to Arnie Sadik Sanga, who is a living person, a deponent.
The affidavit paragraph 4, 5 and 6 contain facts stated by Arnie Sadik Sanga
and in response again the same Arnie Sadik Sanga says these are facts know
to the objector, but the objector is herself (natural person).

Mr. Mshana having shown that and since the problem is the counter
affidavit, he submitted that he has not heard Dr. Kyauke on expunging the
counter affidavit. Being evidence, the court can expunge that. The party will
remain with no evidence. Moreover, he went on submitting that he seen that
the counter of the decree holder especially paragraph 11 and annexture NBC-
2. The valuation report is the one of 2014 while the property was not

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completed. Now the property has been completed and the value of the property
is higher than the time before its completion.

Mr. Lingopola, for the objector begun his protest against the POs raised
by Dr. Kyauke by submitting that the learned advocate has not cited any law to
substantiate the POs. He used logic and conflict of interest. That principle does
not say that it bars that objector should not be administratrix of the judgment
debtor (deceased) estate. In this matter there is no conflict between Arnie
Sanga as objector and Arnie Sanga as administratrix. Since in the latter he steps
into the shoes of the deceased, while in the former (objection proceedings) she
is defending her interest personally. Even when the decree holder's advocate
was making a submission, he said that one cannot differentiate the
administratrix and the deceased. Lingopola submitted that it should be
remembered that Arnie Sang joined in the matter after filing the objection
proceedings. There is no any other way Arnie Sanga could have find another
person to stand as administrator of the estate for the time being because
appointment of administrator of the estate is done in another court, Appearance
of Arnie Sanga as administratrix is a requirement of the law as per Order I rule
10 subrule 2 of the CPC [Cap 33 R.E. 2022] which gives the court mandate to
add any person who has to be joined in the matter for final and conclusive
determination of that matter.

This court on 08/05/2024 ordered Arnie Sanga to be joined as the

administratrix of the estate of the late Sadik Sanga. The counsel for the objector
argued that if this court will find there is conflict of interest between these
parties (objector and administratrix) that problem has been caused by NBC
(decree holder) in this matter because they had an opportunity to rectify the
same before Arnie Sadik Sanga joined in this matter. He submitted that he is

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saying so because on 08/03/2024 Ayoub Samson Sanga who was the
administrator of the estate of Samson Sadik Sanga filed an affidavit in this court
averring that he is no longer the administrator of the estate of the late Samson
Sadik Sanga. The decree holder proceeded with hearing of execution without
informing the administratrix who came to join later in this case after applying
for the same. It was the submission of Mr. Lingopola that the appearance of
Arnie Sadik Sanga (administratrix) was brought out of necessity, and for the
limited time that was available it was difficult to apply to the probate and
administration court for appointment of another administrator of the estate of
the late Samson Sadik Sanga. He invited the court to invokes the principle of
overriding objective enshrined under Sections 3A and 3B of the CPC to allow
the objection to be heard on merit.

Regarding the submission of learned advocate Mr. Mshana, Mr. Lingopola

submitted that the 3rd judgment debtor has a right to be represented. As for
the question of what the objector averred in the affidavit that are known to
herself personally that is correct because she stated what is known to her
personally not as an administratrix.

As for the argument that the counter affidavit is an opposition affidavit,

Mr. Lingopola submitted that that is an incorrect understanding. He added that
one may file counter affidavit and concur with what is found in the affidavit.
The averment in Arnie Sanga' counter affidavit as an administratrix
admitted/noted the facts averred by the affidavit in support of the application
for objection of execution proceedings.

On the issue of valuation report of 2014, Mr. Lingopola had no objection

to it. He submitted that the new valuation report ought to have been filed to
reflect the development done. It ought to show the building has been
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completed. He in the end prayed that the objection be overruled and the case
proceeds to be heard on merit.

As for the 3rd judgment's counsel, Justin, he submitted that the objection
raised by Dr. Kyauke is without merit as per the case of Attorney General
Republic of Kenya v Independent Medical Legal Unit, Appeal No. 1 of
2011, East African Court of Justice, which cited the Mukisa Biscuits' case at
page 5 and on page 6 held that the PO should not be raised if it was in exercise
of discretion of the court. The POs raised here are in terms of probability and
that is upon the discretion of the court. Since the POs raised are not pure point
of law, Mr. Jusitn prayed that they be overruled with costs.

Dr. Kyauke had a brief rejoinder, regarding the valuation report, he said
he cannot say much about it because it was done by a registered valuer, and it
was approved by the chief government valuer. And Dr. Kyauke disclaimed that
he is not an expert of valuation so he cannot say much about it.

Regarding what advocate Lingopola, Dr. Kyauke submitted that what he

said is that one cannot bring an affidavit where one verifies that it is true to his
own knowledge and then he goes around and swear a counter affidavit against
the affidavit. Moreover, the administrator of estate has not an independent legal
personality like a company.

On the argument that the joining of Arnie Sanga as administrator NBC

should be blamed, he was of the view that is not right. He submitted that when
they prosecuting the appeal at CAT they only knew the administrator (Lucian
Samson Sanga). They did not receive any notice that the administrator of the
estate has changed. Turning the overring objective principle, he submitted that
the same cannot apply in this situation because the objector has applied for

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amendment before. Now' it will be an abuse of court process to use the principle
of overriding objective here.

Regarding the submission by Mr. Justin, with respect, Dr. Kyauke

submitted that Mr. Justin did not understand the case he referred to. That is
because in the case at hand the POs raised is on pure point of law. Legally
speaking the issue of swearing affidavit and later one goes around to file
counter affidavit opposing the said affidavit that is point of law. That is conflict
of interest. As costs if court finds no merit in the POs then costs be in the
course.

To begin with the second PO on conflict of interest. I agree with Dr.

Kyauke that administration of estate of deceased is not about legal personality.
However, I hasten to conclude that the act of Arnie Sadik Sanga to swear
affidavit as objector and counter affidavit as administratrix of the 3rd judgment
debtor gives rise to conflict of interest. Arguably, unless the affidavit is defective
there may be nothing wrong with the same person (administratrix) swearing
affidavit and counter affidavit in the context of this case because she serves
distinct legal capacities. Her affidavit is in support of the application for
objection against execution proceedings as a spouse who has interest in the
attached property. And she deponed the counter affidavit for the estate of the
deceased 3rd judgment debtor. These are at best factual issues. Not pure points
of law. Besides as Mr. Mshana put it the court may decide to ignore the counter
affidavit wrongly filed in court. But that is not the course I will take.

Therefore, the second PO is in my view misplaced because while there

may be factual conflict of interest, there is no legal conflict of interest. From
legal standpoint the objector is not one and the same person as the
administratrix of the 3rd judgment debtor's estate. Moreover, the facts she has
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deponed as administratrix that is for the estate which has nothing to do with
the facts the objector has deponed in the affidavit in support of the application.
One may thus find the PO to be based on facts and not law. It is a trite law as
propounded in Mukisa Biscuit Manufacturing Co. Ltd v West End
Distributors Ltd [1969] EA 696 that the PO must be on the pure point of
law. From legal point of view the administratrix and the objector are different.
These have different legal capacities, one is the administratrix and the other is
a spouse and objector claiming interest in the property attached. Dr. Kyauke
has fiercely submitted that this situation is not like in a company where one
may swear affidavit for the company as director. Although that makes sense,
the compass here is legal capacities the applicant is serving. She is
simultaneously the administratrix and a spouse with interest as the objector.
Despite the above being an interesting perspective that remains as an obiter
dictum and does not make the filing of the objection in accord with the law.

Notwithstanding the above obiter, the objection proceedings is in my

considered view untenable because the judgment debtor and the objector are
the same person or representative of a party to the proceedings as per the
provisions of Order XXI Rule 57 of the Civil Procedure Code [Cap 33 R.E. 2019].
This point is on competence of the application. A critical issue here is whether
the objector is a party to the execution proceedings? I am of the view that by
stepping into the shoes of the deceased judgment debtor as administratrix of
the said deceased's estate Sadick Sanga became a party to the execution
proceedings.

The principle to be followed is that once a person has become a party to

the proceedings such as an administratrix of the deceased estate it is not open
for her to file an application for objection of execution proceedings under Order

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XXI Rule 57 of the CPC. She can only raise her interest or any other claims
relating to the proceedings if any under Section 38 of the CPC. That is because
she is already on record, and she is not a third party as contemplated by Order
XXI rule 57 of the CPC.

Let us look at the provision of Section 38 of the CPC. It provides that:

"5<9 Questions to be determined by Court executing decree

(1) AH questions arising between the parties to the suit in

which the decree was passed, or their representative, and
relating to the execution, discharge or satisfaction of the
decree, shall be determined by the court executing the
decree and not by a separate suit.

(2) The court may, subject to any objection as to limitation

orjurisdiction, treat a proceeding under this section as a suit
or a suit as a proceeding and may, if necessary, order
payment of any additional court fees.

(3) Where a question arises as to whether any person is oris

not the representative ofa party, such question shall, for the
purposes of this section, be determined by the court."

Reading the above Section, in particular subsection (3) the question one may
ask is whether Arnie Sadik Sanga is or is not a representative of the deceased
judgment debtor. No doubt that she is the administratrix of the deceased
estate. Hence a representative. That being the case her personal interest if any
has to be pursued under the provision Section 38(1) and (3) of the CPC.

Thus, even though it is understood that the applicant has her personal interest
distinct from the administration of the estate of the deceased, in as far as
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execution proceedings are concerned, she is a party. It would be inappropriate
to have the same person appearing twice and on opposing sides of the
proceedings.

Turning to Order XXI rule 57 it provides that:

"57. Investigation of claims to, and objections to attachment

of, attached property and postponement ofsale.

(1) Where any claim is preferred to, or any objection is made

to the attachment of, any property attached in execution of
a decree on the ground that such property is not liable to
such attachment, the court shall proceed to investigate the
claim or objection with the like power as regards the
examination of the claimant or objector and in all other
respects, as if he was a party to the suit: Provided that, no
such investigation shall be made where the court considers
that the claim or objection was designedly or unnecessarily
delayed.

(2) Where the property to which the claim or objection

applies has been advertised for sale, the court ordering the
sale may postpone it pending the investigation of the claim
or objection."

The above provision of the law is dedicated to affairs of a third party who
has interest in a property attached and due for sale in execution of a decree.
In the case at hand Amie Sadik Sanga is not a third party. She is the
representative of the deceased judgment debtor. Her personal interest in the

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attached property while remaining an administratrix of the deceased judgment
debtor's estate does not make her a third party.

But before signing off, I should remark on Mr. Mshana's submission on

valuation report, and suggestion that the court may ignore the administratrix
of deceased judgment debtor's counter affidavit. In my considered opinion
these points are disconnected from the POs raised by Dr. Kyauke. I will thus
not deal with them.

I also noted that Mr. Lingopola opined that should the court find that
there is conflict of interest between the objector and administratrix that problem
has been caused by NBC (decree holder) in this matter because they had an
opportunity to rectify the same before Arnie Sadik Sanga joined in this matter.
I do not buy this idea; rather I concur with Dr. Kyauke that the decree holder
was not a party to probate and administration case. It would therefore not be
possible for her to know that the administrator of the estate has changed. But
then again even if she would have been aware, it is the duty of the objector to
ensure that she is not conflicted and not the same person in the same
proceedings. Nevertheless, the issue of conflict of interest may be peripheral.
The decisive factor is that by virtue of being the administratrix of the deceased
3rd judgment debtor, the objector is already a party to the execution
proceedings.

That said and done the 1st PO is sustained as the objector is the
representative or administratrix of the deceased 3rd judgment debtor and hence
she is a party to the proceedings. Therefore, the application for objection of
execution proceedings is indeed incompetent. It is struck out. Since the legal
intricacies were unique, and in addition, there is pending execution
proceedings, I decline to grant costs.
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 The court thus orders:

1. The 1st PO is sustained.

2. The application for objection of execution proceeding is struck out
for being incompetent.
3. No order as to costs.

Order accordingly.

DATED at DAR ES SALAAM this 5th Day of July 2024

Coram: Hon. U.J. Agatho

For the Decree holder: Mariam Ismail, Advocate
For Respondent: Mariam Ismail, Advocate
For the 1st & 2nd Judgment Debtor: Mariam Ismail, Advocate h/b Amin Mshana,
Advocate
For the 3rd Judgement debtor: Jeston Justin, Advocate
For Objector: Lilian Kalinga, Advocate
B/C: Nassoro

Court: Ruling to be delivered today 05/07/2024 in the presence of Lilian

Kalinga counsel for the objector, Mariam Ismail counsel for the decree
holder, and respondent also holding a brief of Amin Mshana, counsel for the

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1st and 2nd judgment debtors and in the presence of Jeston Justin, counsel
for the 3rd judgment debtor.

JUDGE
05/07/2024

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