Post on 22-Jun-2018
IN THE HIGH COURT OF TANZANIAAT DAR ES SALAAM
LOANS AND ADVANCESREALIZATION TRUST APPLICANT
PATRICK K. MUNGAYA & 46 OTHERS ... RESPONDENTS•
issued on 26th January, 2005 in Employment Cause No. 20/2002 with a view
of examining the same and satisfy itself as to their correctness, propriety,
(b) That the execution proceedings and
garnishee order for the amount of shs.
208,723,360/= served upon the applicant's
banker, Standard Chartered Bank, NIC Life
House, Dare s Salaam be ordered that is
illegal null and void;
(c) Any other relief that the court shall deem
appropriate and costs of the application.
In the accompanying affidavit, the applicant deponed that the
respondent had instituted Employment Cause No. 20/2002 by way of
a labour officers report in which the respondents were claiming a sum
of money amounting to shs. 55,455,216/=. At the end of the
proceedings and judgment, the court decided on their favour and
awarded the amount of money as prayed, concluded with the words
"no more no less". A decree to that effect was issued, dated 4th June,
2005. A garnishee order nisi was issued. However the applicant filed
an application to stay execution and lifting of the Garnishee Order
pending application for review on the ground of illegality and the
court's lack of jurisdiction. Before the hearing of the application, the
court issued Garnishee order absolute.
That the court served the branch manager of the applicant's
banker with a notice to show cause why he should not be committed
to civil prison for contempt of the court by failing to release the
garnisheed sum of shs.55,455,217/=. That was followed by the
issuing of a cheque No. 072779 of the decretal sum in the name of
Super Action Limited was drawn and forwarded to the trial court.
After the execution of the decree, the application for stay was heard
and dismissed, for reasons, inter alia, that the application had been
overtaken by events since the cheque had been cashed.
As if that was not enough, the applicant deponed that, though
execution had already been completed, yet on 4/5/2004 was again
served with a garnishee order nisi attaching shs.208,723,360 which
was predicated on same matter, Employment Cause No. 20/2002. The
applicant filed an objection proceedings on the grounds inter alia that
the purported execution proceedings and garnishee order were illegal
as the decree on the same matter had already been satisfied. However,
the application was dismissed with a further order that the garnishee
order for shs. 208,723,360/= be executed forth with.
Being aggrieved by that ruling the applicant deponed that
having been advised by his advocates that this is a suit case for this
courts exercise of its revisional and or supervisory powers over the
proceedings and orders of the lower court, that the execution
proceedings and decision complained of are tainted with illegality.
There are also errors on the face of it in that:
(a) The respondents got and executed all that they claimed in
the Employment Cause No. 20/2002.
(b) The amount sought to be executed by way of a garnishee
is fictitious as there is no decree to that effect;
(c) The agreement of 14/9/2001 referred in the impugned
decision is the very one which formed the basis of the
judgment and decree.
The respondents acted by filing a counter affidavit to the effect that he
disputed mainly paragraphs No.7, 8, 11, 12 and 15 of the affidavit. Patrick
Mungaya, (whose signature have been disputed as shown below) is
purported to have deponed in his 5th paragraph of the counter affidavit that
issue of garnishee absolute was clear for absence of stay of execution order.
In his 6th paragraph, he deponed that the applicant had abandoned his
application and that the application for stay of execution cannot in itself
amount to order of stay of execution. In his 9th paragraph, he deponed that
the document for T.shs. 208,723,360/= was served but no reply was made.
He further deponed that the decree for shs. 208,723,350/= was a different
one from the former decree and lastly that the ruling of the lower court was
properly delivered. In substance, the respondent admitted the contents of the
affidavit of the applicant save for paragraphs 7, 8, 11, 12 and 15 were true
and correct.
After the exchange of those documents inform of affidavits and
counter affidavits, the learned counsel for the parties addressed this court on
25/2/2005, which address led to the end of the proceedings, hence this ruling.
In his submissions before this court, Mr. Mapande, learned counsel
for the applicant prayed to adopt the affidavit of Mr. Mwakisu in support of
the Chamber summons as part of his submissions, though in substance, he
repeated the same in his submissions which I need not repeat. The
applicant's learned counsel submitted that the branch manager of the
applicant's bank issued the cheque for the garnisheed money amounting to
shs. 55,455,216/= on fear of being condemned to civil prison. That was
because he had been served with a notice to show cause as to why he should
not be committed to prison for refusing to issue the garnisheed money. The
court had also ordered that the cheque be drawn in the name of court broker
in the name of Super Auction Mart Ltd. The said auctioneer and court
broker was not a party to the proceedings nor was he an executing person.
Yet, the order of the court directed it to be paid to him. That action had been
repeated again in the execution order for the money in dispute. 1really don't
understand that procedure which the subordinate court adopted.
Even though the decree for shs. 55,455,216 in Employment Cause
No.20/2002 had been executed, yet another garnishee nisi was issued for the
same decree, a fact contradicting section 28 of the Civil Procedure Code,
1966 which requires that a decree once executed, it ends the matter. The
applicant filed a proceeding objection to the court but that application was
dismissed with the following words:
"1 therefore find that the submitted claim ofshs.208,723,360/=
has substantive basis and is still unpaid and indeed predicates
from the same Employment Cause No. 20/2001. 1 order that it
should accordingly be executed in favour of the respondents. It
is ordered accordingly .... "
As we shall see below, 1 don't see the basis of those strong words by
trial Resident Magistrate. 1 say so because Employment Cause No. 20/2002
which emanated from the Labour Officers report for 47 employees had been
executed as per Judgment and decree ofMafuru, Rm to that effect. 1 say so
because a decree is defined by section 3 of the Civil Procedure Code, 1966
as a final result of a suit.
In identifying another abnormality in the garnishee order, Mr.
Mapande, learned counsel submitted that it was ordered to be paid to a
stranger to Employment Cause No. 20/2002. He was one Andrew Nkwasi.
I also share the same surprise. I really don't know why the respondents were
hiding identity of the payee, and the trial magistrate agreed to be misled and
make orders which are not backed by the proceedings. Perhaps that is why
the applicants were submitting that there were grounds or reasons to believe
of the existence of fraud.
Before he made his concluding prayers, Mr. Mapande, learned
counsel wanted this court's direction as to the authentic of the signature of
one Patrick A. Muganya in the counter affidavit purported to be sworn by
him. He submitted that, that signature differed significantly with other
signatures he had signed, and that discrepancy needed no handwriting
expart to tell the difference. He called on this court to hold that the said
signature was a forged one and it is held so, then it amounts to fraud and
therefore, fraud vitiates everything. He sought authority of this court,
Mihayo J. in Tanzania Breweries Ltd. v. Alloyce Muyai Civil Revision No.
9/2004 (unreported - Dar es Salaam Registry) where his lordship said in his
ruling that "comparing of signatures is a duty of the court". He held it as
settled law. The learned counsel further called upon this court to compare
the signature appearing in the counter affidavit to those in the documents
filed in Employment Cause No. 20/2002 by Patrick Mungaya. The instances
to be compared are:
(1) Legal arguments for violation Payments claims of the 47
workers filed on 11/8/2003;
(2) Tarehe za Mahudhurio Mahakama Kisutu" i.e. date of
attendance at Kisutu Court.
(3) Counter affidavit dated 18/5/2003
(4) Application for execution of decree
(5) Affidavit dated 24/7/2003.
The learned counsel ended his submissions by saying that in
view of the differences in the signatures, which lead to forgery, whose
consequence is to vitiate everything, then all the proceedings in the
lower court be declared a nullity so that the decree and the garnishee
order for the tune of shs.208, 723,360/= be declared illegal, nullity and
void.
In his reply to the submissions by the learned counsel for the
applicant, Mr. Muyovela, learned counsel for the respondents
submitted that even if there are slight differences in the signatures of
Patrick Mungaya in the counter affidavit and those other cited
documents, yet he is the very one person who signed them. He had
nothing to fear of cheat when filing the counter affidavit. That
counter affidavit is just a requirement that should be filed. He further
submitted that, that was a document filed which is a different thing
from a document tendered during the proceedings in support of
something. Therefore, the cases cited are differentiated, from Mr.
Patrick Mungaya was just fulfilling the requirement of the law or
procedure and not proving anything.
On the main application, that is the garnishee order dated
5/4/2004 for shs. 208,723,360, he submitted that it was the difference
of the money paid in respect of the Resident Magistrates Employment
Cause No. 20/2002. He said further that, the said amount of money
had been agreed between the members of TAFCO and the Liquidator
who is the applicant. That the applicants having been served with the
documents annexutre DI, they failed to respond at the subordinate
court, a fact which led to the issuing of the garnishee nisi to the
applicant's banker, the Standard Chartered Bank. The learned counsel
further submitted that having failed to respond further, a garnishee
absolute was issued, basing on the judgment ofMafuru, Rm in
Employment Cause NO. 20/2002. The learned counsel did not agree
with the submissions of the applicant's advocate, that the judgment of
Mafum, Rm, was conclusive.
Before I proceed, I would like to say that the judgment of
Mafum Rm resulted from the labour officer's report made under
section 132 to a magistrate, Employment Ordinance, Cap. 366. In
that report, the labour officer included only 47 employees who were to
be paid a total of shs. 55,455,216/=. The judgment of Mafum, Rm
was for that sum couched with the words "not more, no less". That
was not enough, but a decree for execution of the sum of
shs.55,455,216/= was prepared in conformity with the judgment as
required under xxr 6 of the Civil Procedure Code, 966. The decree
specified the amount of money due, which was shs. 55,455,216/= and
the names of the parties were those appearing in the Labour officers
report, whose leader was Patrick K. Mungaya. I don't see, how
Patrick Mungaya went again to the court to seek for more payment
while he had already been paid in full together with the 46 others.
The judgment of Mafum, Rm did not extend to beyond the amount of
money stated in the decree which was fully paid to the decree holders.
Mr. Muyovela, learned counsel submitted that there was a
balance of money to be paid in accordance to agreement between
TAFCO members and the applicant. There is no where in the
Employment Ordinance Cap 366 where it is stated that if there are
such agreements, they could just be executed in a court of law. The
courts do execute its decrees and nothing else.
I am sorry to say that the learned Resident Magistrate, Mr.
Mutungi, either deliberately or otherwise, was persuaded to execute a
non existing decree. In his many, but self centred words, appearing in
his 7th page of the typed ruling, he said:
"What I can now only construe to be the factual status, is that,
the amount now in dispute is the projected and or extracted less
payments or variations to the payment otherwise eligible to
have been paid to the respondents as ordered by this court in the
cited judgment, which I dully find forms basis to this matter as
well."
The learned Resident Magistrate chose to cheat himself and the
respondents when he based his ruling on the judgment of Mafuru, Rm. That
judgment was conclusive by itself and it did not need to be supplemented by
another ruling. Therefore then, the judgment of Mafuru, Rm was final and
conclusive as far as the Employment Cause No. 2012002 in regard to Patrick
K. Mungaya and 46 others was concerned.
The learned Resident Magistrate, in saying that "the amount now in
dispute is the projected and or extracted less payment or variations to the
payments otherwise eligible to have been paid to the respondents as ordered
by this court "was nothing but alteration of the courts decision, which he had
no legal powers to add or decrease as to what the said court had said. To do
as to what he did, was a contravention of section 96 of the Civil Procedure
Code, 1966 which deals with amendments of judgments, decrees or orders.
The court has only powers to correct clerical or arithmetical mistakes in
judgments, decrees or orders of errors arising therein from any accidental
slip or omission. Those could be corrected at any time by the court either of
its own motion or on the application of any of the parties. The trial Resident
Magistrate was not doing that, he was actually executing a non existing
judgment and a decree, but pegging his illegal ruling on an already executed
decree of the said court. That is no wonder, because he was persuaded to
allow a stranger to proceedings to be paid the garnisheed money, a fact
which would have created another problem, if the money could not have
reached the decree holders if any.
Mr. Muyovela, learned counsel for the respondents submitted further
that both applications before the subordinate court and before this court be
struck out because the money which were to be garnisheed at the Standard
Chartered Bank was the property of the applicants and the lower court was
entitled to disallow the claim. The basis of that submission is rule 60 of Ord.
XI. He prayed that the execution of the garnishee nisi be allowed. The
applicants learned counsel replied to the effect that the objection is to the
execution of the decree which had already been executed, so their claim
should not be disallowed. Their objection to attachment was in conformity
with r.58 of ord.xi. What I had been saying at length is that, the application
was and is competent before the lower court and before this court. It is
aimed at preventing an illegality which was about to be committed. The
illegality being the attachment of the applicants bank account, which was
soon to be released by the Standard Chartered Bank. Thus the objection
before the lower court and before this court was properly made before the
courts in objection to the said attachment of money in execution of a non
existing decree.
In the chamber summons, the applicant requested for the calling of the
records of the proceedings, ruling and order of the Resident Magistrate's
Court at Kisutu, issued on 26/1/2005 in Employment Cause NO. 20/2002
with a view of examining the same and satisfy itself as to their correctness,
propriety, legality or otherwise. From what I have already endeavored to
show in this ruling, it is clear that those proceedings and ruling were not
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correct in the sense that there was no judgment and a decree to be executed
and or executed on 26/1/2005 in the employment cause No. 20/2002. they
were neither propriety or legal proceedings before the court, hence, they are
quashed and set aside. The execution proceedings as well as the garnishee
order for the amount of shs. 208,723,360, served upon the applicant's
banker, Standard Chattered Bank, NIC Life House, Dar es Salaam is illegal,
null and void. The application is therefore granted as prayed. Usually, costs
for orders are not made in Employment cause, but having found that those
execution proceedings were just illegal and non existing on the face of it,
coupled with a lot of doubtful dealings, the applicants are entitled to the
costs oftl~e suit, in this court and at the Subordinate court. It is so ordered., •• t \1 co... .
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A.R.· ManentoJAJI KIONGOZI.~_.i
";.,, .25·.4..2005"·~' ".'
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For the ApI2licant - Absent
For the Respondent - Patrick Mungaya present in person.
Order:
Ruling delivered today in chambers 25/4/05 in the presence of the
Respondent in person. The applicant is absent with notice.
A.A. ShayoREGISTRAR
HIGH COURT
25/4/05