BULYANHULU GOLD MINE VS PATROBERT

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA HC/SHY/CIV/APP/10731/2024 BULYANHULU GOLD MINE LTD ..................................…. APPELLANT

VERSUS PATROBERT D. ISHENGOMA ............................................... RESPONDENT

JUDGMENT 30th May & 28th June 2024 F.H.Mahimbali The appellant in this matter has been aggrieved by the garnishee order absolute issued by the Resident Magistrate Court of Shinyanga in its ruling vide Misc. Civil Application No. 7696 of 2024 purporting to execute the High Court’s decree vide Civil Appeal No. 25 of 2021 and the Memorandum of settlement of the Resident Magistrate Court vide Consolidated Misc. Civil Applications No. 18 and 19 of 2019. In a nutshell, the information as can be gathered from the available records is that, the respondent was on 19th December 2002 employed by the appellant as underground miner in the Back Fill crew. However, on 1 19/6/2003, the applicant got an accident and sustained personal injuries consequent to which he was referred to Aga Khan Hospital DSM for further medication. That on 30/8/2003, the respondent terminated the applicant’s contract of employment on purported ground of misconduct, without considering his right for medical treatment of his previous sustained injures in his employment. Aggrieved by the said wrongful termination of employment and unfair treatment, the respondent referred the matter to DLCB of Kahama (District Labour Conciliation Board of Kahama District vide form No. 411 of the then Security of Empty Act (10/9/2003). That on 13/10/2003 the Kahama DLCB made two independent orders.

1. Confirmed his termination employment 2. The kahama DLCB made an extra independent order directing the respondent to proceed providing him with medical services on the respondent’s expenses. Moreover, the KLCB suspended his repatriation process due the same medical reason pending the final medical report. 2 That further in the extract order, that compensation under the Workers’ Compensation Act (Cap 263) would follow if it was established that he was injured in the course of employment. The employee (Respondent) was aggrieved by the Board’s first order of confirming his termination. Therefore, on 13/10/2003, he appealed to the Minister of Labour. As regards to the Extra independent order of the Conciliation Board, both parties seemed to be satisfied with as no appeal was preferred against the same. That on 25/11/2006 the Minister responsible for labour matters delivered his decision regarding the respondent’s appeal which ordered that the contract of employment before the respondent and the applicant was terminated on 25/11/2006 on the ground of lack of good relationship. That while the respondent (Ishengoma) was about to execute the Minister’s award vide Misc. Civil Application No. 12 of 2007 at the District court of Kahama, the appellant instituted Misc. Civil Cause No. 97 of 2007 in the High Court of Tanzania at DSM against the decision of the Minister for labour matters.

Eventually, the Minister’s decision was quashed paralysing the application for execution of the award by the Minister at the District court. 3 The High Court’s decision was eventually quashed by CAT vide Revision No. 17 of 2026 dated on 02/6/2017 reviving the decision of the Minister of Labour dated 25/11/2006. It is from this background then the District labour officer of Kahama District was requested for the report pursuant to the Minister’s termination order dated 25/11/2006 following the Court of Appeal’s decision. That by 10th July 2018, the District Labour Officer of Kahama District while interpreting the Minister’s decision made his calculations to the tune of TZS: 3,120,091,692 (Say three Billion, one hundred and twenty, ninety-one thousand and six hundred and ninety-two shillings) in favour of the respondent fortifying that is pursuant to section 43 of the Security of Employment Act Cap 387 R.E 2002 and section 59 of the Employment Act. As these claims arose before the commencement of the Employment and Labour Relations Act No. 6 of 2004, the relevant claims were then computed as if the foregoing provisions of the repealed laws had not been repealed pursuant to paragraph 11 (2) of the saving provisions in the 3rd schedule to that Act. Basing under the provisions of section 59(1) (2) & (3) of the Employment Act, Cap 366, the District Labour Officer made

his 4 calculations at the tune of TZS: 3,120,091,692/= at the following itemization: 1. Terminal benefits = 4,832,872/= 2. Arrears of wages from 30/8/2003 – 25/11/2006 = 35,782,320/= 3. Arrears of unpaid annual leave fare (2004 – 2006) = 1,260,000/= 4. Arrears of travel allowance during annual leave of 2004 – 2006 = 4,320,000/= 5. Arrears of unpaid leave allowance of an annual leave from 2004 – 2006 = 2, 354,100/= 6. Repatriation expenses including fare of employee & his family and house hold belonging after termination 2,042,000/= 7. On transit subsistence allowance during the Journey of employee and his family after termination of contract = 1,400,000/= 8. Subsistence allowance “per diem” for the period from 25/11/2006 i.e the date of termination to the deemed date of repatriation or (24/11/2018) = 4383 days @ 175,000 for six persons (employer spouse four children) = 3,068,100,000/= 5 Thus grannd total is 3,120,091,692/= As if this was not enough, the same respondent through the District Labour Office of Kahama District in a letter with Ref. No. KAH/CB/35/2003/16 & KAH/WC/36/2003 dated 3rd April 2018, filed to the court of Resident Magistrare of Shinyanga another application of claims totalling 4,488,258,800/= (Say Four Billion, four hundred and eighty-eight million and two hundred and fifty eight and eight hundred thousand shillings. The itemization of this figure is as

follows. (1) Subsistence allowance perdiem for applicant and his wife from 30/8/2003 – 30/4/2018 @ 175,000/= = 1,892,450,000/=. (2) Subsistence allowance perdiem for applicant’s 4 children from 30/8/2003 – 30/4/2018 @ 87,500/= = 1,892,450,000/=. (3) Medical expenses 18,525,000/= (4) Transportation expenses to and from Hospital (95 trips, 2 people = 84,360,000/= (5) Actual damage compensation of hearing loss on the right ear 108,000/= (6) General damages compensation in accident Ref. No. KHH/WC/36/2003 = 300,000,000/= 6 (7) NSSF premium inquiry contribution from 19/6/2003 up to 18/12/2024 as per pension scheme under NSSF Act = 298,865,800/= (8) Repatriation expenses i.e fare for applicant or fairly, luggage transport and transits allowed from Bulyanhulu to Kyaka Bukoba = 2,500,000/= Total 4,488,258,000/= Thus, the grand total the respondent claimed before the RM’s court of Shinyanga is 7,608,350,192 (Say Seven billion and six hundred and eight million and three hundred and fifty thousand and one ninety two shillings). According to the execution proceedings before the Shinyanga RM’s Court, the two applications seemed to have been consolidated and ruled that an amount of Tshs. 3,120,091,692 is the full entitlement of the respondent in which the Garnishee Order Nisi was issued against the Appellant’s Bank Account No. 100,542,048 at City Bank DSM and Account No. 01J1086898600 by

CRDB Bank at DSM. This execution ruling displeased the respondent, and was challenged before the High Court (Hon. Kulita, J) vide civil Appeal No. 25 of 2021 that it was improper for the Executing Court (Shinyanga 7 RM’S Court Moro) to make a consolidated ruling purporting to accommodate both applications in the absence of the prior consolidation order during its hearing stage. After both applications were dully heard, this court (Kulita, J) had finally while allowing the appeal made the following orders: a) The appeal is allowed to the discussed extent. b) The citing of the respondent’s name with the added extra piece of information, Barrick Gold Tanzania and Bulyanhulu Gold Mine Ltd is not fatal and this court suo motto grants leave of the change of respondent’s name. c) The purported consolidation of the appellant’s two applications for execution at RM’s court is nullified. d) The resultant ruling which is complained in this appeal is taken to be valid ruling and represents only Misc. Civil Application No. 19 of 2019 to the tune of 3,120,091,692/= e) The complained ruling and order of the RM’s court made therein refusing execution of the Decree of the Labour Conciliatory Board of Kahama District dated 13th October 2003 in Misc. Civil Application No. 18 of 2019 is hereby quashed and set aside. 8 f) The execution for Misc. Civil Application No. 18 of 2019 should expeditiously

proceed upon the composition of its separate judgment by another magistrate with competent jurisdiction using the parties’ submissions which were made therein. g) The labour officer to make a report and calculations of the appellant’s entitlement from the deemed date of repatriation to the actual date of repatriation thereby giving chance for the appellant to apply for execution on such portion of entitlement. This was the High Court’s order (Kulita, J) dated 24th Nov.

2022. Almost a month after this court’s directives vide civil appeal No. 25 of 2021, parties on 20th Dec. 2022 filed at the Resident Magistrate Court a memorandum of settlement. For easy of reference, the body contents of the said memorandum of settlement is hereby reproduced. The said Deed of settlement seems to have been drawn and filed by Ms Caroline Kivuyo, MKD Mhingo Advocate and Mathias M. Mashauri for the J/Debtor and Decree Holder respectively. Following the signing of this Deed of Settlement on 20th Dec. 2022, the same was dully filed in court on 29th Dec. 2022 from which the Resident Magistrate’s Court of Shinyanga after had recorded the parties prayers extracted drawn order in which it was remarked: 9 1. The matters between the Applicant and Respondent are hereby marked as Settled and closed.

2. Each party to bear its own costs. It is undisputed that soon after the said signing of the Deed of Settlement, the D/Holder received an amount of TZS: 1,502,042,400/= from the J/Debtor. Now, to the surprise of the appellant, on 4th April 2024, (a year after), the respondent under certificate of urgency filed an application for execution of a decree against the appellant claiming payment of the remaining balance amounting to TZS: 6,879,808,092, in which eventually a garnishee order absolute against the appellant’s account previously attached was issued by the Shinyanga Resident Magistrate Court which order/ruling is now the subject of this appeal. The appellant has been aggrieved by the said decision now has appealed to this court challenging that decision on a total of 14 grounds of appeal (armoury): 1) To the extent that all disputes between the parties including Misc. civil application No. 18 of 2019 and Misc. Civil application no 19 of 2019 were marked settled and closed by an order of the Resident Magistrate’s Court of Shinyanga dated 29/12/2022, the said court 10 order was functus officio and was not entitled to re-open the matter in Misc. Civil Application No. 7696 of 2024.

2) The Honourable Principal Resident Magistrate erred in law and in fact for relying on the proceedings in Misc. Civil Application no. 3 of 2022 to hold that the court was not functus officio instead of relying on the order issued by the same court in Misc. Civil Application No. 18 of 2019 and Misc. Civil Application No. 19 of 2019.

3) To the extent that judgment of the High Court in Civil Appeal No. 25 of 2021, the Memorandum of Settlement, Court order dated 29/12/2022, arose from and were respectively made and issued in Misc. Civil Application No. 18 of 2019 and Misc. Civil Application No. 19 of 2019, the Honourable Principal Resident Magistrate erred in law in entertaining the claims in a fresh application Misc. Civil Application No. 7696 of 2024.

4) The Honourable Principal Resident Magistrate’s Court of Shinyanga erred in law and fact for failing to hold that all the matters between the parties were settled and closed.

5) To the extent that the order dated 29/12/2022 of the Resident Magistrate Court of Shinyanga did not order payment of any amount of money to the Respondent and the said order was not subject to 11 any payment to the respondent, the Honourable Principal Resident Magistrate erred in law and in fact in ordering that the Respondent was entitled to Tshs, 6,879,808,092 being balance of Tshs. 8,381,850,492.

6) To the extent that the High Court judgment and decree dated 24/11/2022 in Civil Appeal No. 25 of 2021 did not award any amount to the respondent, the Honourable Principal Resident Magistrate erred in law and in fact in holding that the respondent is entitled to be paid the amount claimed in Misc. Civil Application No. 7696 of 2024 7) To the extent that in the Memorandum of Settlement filed in court on 23/12/2022 it was not agreed that the Respondent is entitled Tshs 8,381,550,492 the Honourable Principal Resident Magistrate erred in law and in fact in holding that the respondent is entitled to be paid Tshs 6,579,808,092 8) The Honourable Principal Resident Magistrate erred in law and in fact in holding that the appellant breached the memorandum of settlement that was filed in court.

9) Having noted that Misc. Civil Application No. 3 of 2022 was struck out, the Honourable Principal Resident Magistrate erred in law and 12 in fact in holding that the Respondent is entitled to payment of monies claimed in that application while the application was never refiled and determined.

10) To the extent that the claimed Tshs, 6,879,808,092 is not supported by any order of the court or any agreement sought to be executed in Misc. Civil Application No. 7696 of 2024, the Honourable Principal Resident Magistrate erred in law and in fact in holding that the respondent is entitled to payment of the said Tshs 6,879,808,092/= 11) The Honourable Principal Resident Magistrate erred in law and in fact for discrediting the settlement agreement between the parties on un pleaded and irrelevant grounds 12) To the extent that all matters between the parties herein above were closed, the Honourable Principal Resident Magistrate erred in law and fact for applying order XXI Rule 2(1) (2) and (3) of the Civil Procedure Code Cap 33 R.E 2019 to the settlement agreement between the parties.

13) The Honourable Principal Resident Magistrate erred in law and in fact in holding that the respondent was not barred in bringing the claims lodged in Misc. Civil Application No. 7696 of 2024 13 14) The Honourable Principal Resident Magistrate erred in law and in fact in holding that the respondent is entitled to Tshs 6,879,8080,092 On these 14 grounds of appeal the appellant is praying for the following orders. a) The decision of the Resident Magistrate’s Court of Shinyanga in Misc. Civil Application No. 7696 of 2024 be quashed and set aside. b) The respondent be ordered to pay the costs of this case, both at the RM’s court and this court. c) Any other orders this court deems just to grant Prior to the hearing of the appeal, the respondent’s counsel raised three grounds of preliminary objections; namely: 1) That the execution order by the court is none appealable.

2) That this court lacks requisite jurisdiction to entertain this matter.

3) That the appeal contravenes s. 70(3) of the CPC. The hearing of the P.O and the appeal itself were done simultaneously /jointly. Thus this decision will first determine whether the P. Os raised are of sufficient value to dispose of the matter. 14 I am first grateful to the submissions done by both sides’ advocates on both; P.Os and appeal itself. For sure it was an impressive submission and both: court’s decorum and legal maturity were clearly displayed and observed. On this I am really very grateful. In consideration of the fact that what was ruled by the Shinyanga RM’S court was the decree order, thus pursuant to s. 74 and order XL of the CPC, that order is not appealable, argued Mr. Mandela on the first P.O. To bolster his argument, Mr. Mandela cited the case of Chacha Ikongoro v. Ndege Kibeke Misc. land appeal No. 145 of 2020, Hc at Musoma where it was held that execution proceedings as a matter of law is not appealable. He also added the case of Ally sead v. Peter Leborn Mchan and Another civil Appeal No. 171 of 2022, Hc at DSM at page 7. In respect to the second Preliminary objection he almost argued it in line with first ground of appeal. With the third Preliminary objection, he submitted that the appeal is defective as it contravenes s. 70(3) of the CPC on the pretext that a party having consented to the decree passed by the court as per Deed of Settlement filed in

court on 29th Dec. 2022 then the appellant is precluded from appealing against it. 15 Resisting the P.Os, Mr. Malongo while citing section 3, 38 of the CPC and also the decisions of this court in the same matter by Kulita, J (Civil Appeal No. 25 of 2021 by these same parties) where it was ruled that a decree that comes from execution proceedings is appealable and is not per se subject of revision. Another guidance was sought from the CAT’S decision in the case of CRDB Bank PLC vs. the Registered Trustees of Kagera Farmers Trust Fund or 2 others, civil appeal no. 496 of 2021 at page 9 – para 2. He was of the view that the cited cases of Musoma & DSM HC, first are not binding but also irrelevant to the facts in the present case. Otherwise, Mr. Malongo was of the firm view that in consideration to what Hon. Kulita, J had already ruled in this matter on a previous similar P.Os and in respect of this same matter, then this court is now functus afficio to depart from its own previous decision. As regards to the legal concern that since there was a consent decree then it is un appealable decree pursuant to s. 70(3) of the CPC, as the decision thereof emanates from the consent decree, Mr. Malongo could not mince words. He strongly opposed that assertion submitting that what is being appealed against before this court is not from Deed of settlement but against the ruling of Shinyanga

RM’s Court dated 9th May 2024 vide new matter titled Misc. Civil Application no. 7696 of 2024. 16 Digesting on the context of the both P.Os as argued, though are mind challenging but in my considered view are not relevant in the context of the current matter titled Misc. Civil Application No. 7696 of 2024. Though I have read the position taken by my brother Kisanya, J in Chacha Ikongoro v. Ndege Kibeke (supra), however as the current matter concerns the decree emanating from execution proceedings, then it is appealable as rightly ruled by my brother Kulita J while determining the rights of the same parties in Civil Appeal No. 25 of 2021 in which he perfectly interpreted the provisions of section 3, 38(1) and (2) of the CPC that what is determined by the court in execution proceedings is a suit, thus its decree is appealable in terms of section 70(1) of the CPC. The same line of reasoning was once held in several decisions of the Court of Appeal and High Court in the cases of Nkwabi Shing’oma Lume V. Secretary General, Chama Cha Mapinduzi, Civil Appeal No. 234 of 2017 CAT, Paul Solomon Mwaipyana V. NBC Holding Corporation (2004) TLR 2004, Tanzania Breweries Ltd V. Dotto Chagula, Misc. Civil Appeal No. 25 of 1999, Mwanza HC and Agricultural Inputs Fund V. Stephano Simon Mwampashi, Civil Appeal No. 09 of 2018, HC Mbeya in which I fully subscribe and associate myself to that

position what is determined by a court in execution proceedings amounts to suit and 17 thus its decree is subject of appeal (appealable) to the higher court to it. As this position was rightly dealt with by my brother Kulita J (in the same parties over the same dispute previously determined). Thus, just by that position, I am also put into webs to differ from it on the principle of functus officio. With respect to the 3rd ground of P.O that a consent decree is pursuant to s. 70(3) of the CPC not appealable, I agree with that legal principle as it is the trite law. Conversely, in the context of the current matter, for sure is not the case. As rightly countered by Mr. Malongo the learned counsel for the appellant that the basis of the current appeal is not from what was agreed by the parties but surely on the ruling of the Principal Resident Magistrate in Misc Civil Application No. 7696 of 2024 in which she construed the said deed of settlement as not fully satisfied. Thus, her ruling granting the garnishee order absolute against the appellant’s account ordering transfer of 6 billion to the respondent’s account, is what is being challenged. It is my firm position that the respondent’s legal objection on this as misplaced in the context that, what is being appealed here does not arise from the consent decree but the ruling of the Principal Resident Magistrate in admitting the

latter claims by the respondent who 18 subsequently ordered the garnishee order absolute against the respondent’s bank account in favour of the respondent. In my understanding of this appeal, the appellant is dissatisfied that as per the signed deed of settlement, that was not expected by the respondent, him having been credited an amount worth 1,502,042,400/ in consideration of the said matters pending in court. That said, looking at the appeal, there is no any supporting material that the appellant is appealing against the decree on settlement but construction of the Principal Resident Magistrate on the existence of the remaining sum out of the settled decree. As it was not expected to be filed any suit after the signing of the deed of settlement, the filing of the Misc. Civil Application no. 7696 of 2024 at the Resident Magistrate Court by the respondent means contravening the deed of settlement itself. As it is alleged to have been wrongly filed, its ruling blessing the illegality is what is being appealed. All this said and done the P.Os raised are accordingly dismissed with costs for being meritless in the context of the current matter. In arguing the appeal vide the 14 grounds of appeal (above), Mr. Malongo first made an introduction of the case with the impugned ruling vide Misc. Civil application No. 7696 of 2024, that the respondent was 19 executing the High Court’s

order dated 24th Nov. 2022 vide Civil Appeal No. 25 of 2021 together with the RMS’s Court’s decision dated 29th Dec 2022. He clarified that the decision of the High Court confirmed the decision of the RM’S Court in Misc. Civil Application No. 19 of 2019 but set aside the decision in Misc. Civil Application No. 18 of 2019 and further ordered the magistrate to compose the decision thereof. That just after getting the copy of the said judgment of the High court; on 29th December, 2022 the appellant and the respondent went to RM’S court and agreed that all matters pending between the parties be marked settled and closed and that it was remarked so. Arguing the 1st 2nd, 4th and 13th grounds of appeal jointly while making reference to the various CAT’s decisions such as Ester Chakupewa vs. Amasha Mpenzi and Another, civil application No. 523/6 of 2019 at page … ) and CRDB Bank PLC vs. Registered of Kagera Farmers Trust Fund and 2 others (at page 9-11 ) he was of the firm view that the RM court was functus officio to reopen the matter which was marked settled and closed. That the justification by the PRM that since vide Civil Application No. 3 of 2022 the court just struck out the case, then the issue of functus officio of the court cannot stand; Mr. Malongo insisted that so long as there is an order closing the matter by 20 the RM’s court on the concluded /settled matter, the strike

out order was irrelevant and could not form a good basis of re-opening the matter. He was of the firm legal mind that so long that order of closing the matter on settlement reached was intact, the refiling as done could only be possible had there been in place a subsequent order either reviewing or nullifying the previous existing order. As that was not done first, the subsequent application was therefore functus officio On the third ground of appeal Mr. Malongo’s submission was based on the fact that as per settlement reached on 29th Dec. 2022 and the matter being marked closed, if there was any entitlement to the respondent arising from that settlement the same ought to have been filed within the same court file as the RM’s court was pre-cluded from filing fresh application. On this restriction of filing fresh case/application indulgence was sought in the case of East African Development Bank vs. Blue line Enterprises Limited Civil Appeal No. 101 of 2019 CAT at DSM at page 10. Also assistance was sought from the case of Graham Rioba Sagwe and 2 others vs. Final Bank and 2 others at page 5. On grounds no 5 , 6, 7 , 8 and 10, Mr. Malongo’s concern was this, since after the High Court’s judgment (Civil appeal No. 25 of 2021) parties had settled and since there was no any monetary decree worth 21 8,381,850,492/= decreed by either RM’S court or High court, the alleged balance of

6,242, 283,242.86 is unfounded for lack of any effective legal foundation. Thus the garnishee order nisi and its subsequent garnishee order absolute ordered are unjustifiable for want of any monetary decree awarded or pending settlement. He added that even by looking the purported High Court’s decree to be executed, there is no such monetary award stated there save the 3 bilion and the re composing order of ruling. In his considered view, the said decree to be executed as a matter of law must be self-content as it should speak for itself. On the legal requirement that the decree must speak for itself, the attention of the court was drawn vide a persuasive decision of the case of Daud Kulwa vs. Marco Petro and 2 others Land Appeal No. 57 of 2023 HC at Mwanza that the decree is the court’s document which by itself determines the parties’ rights in a case finally and conclusively. The current case lacks an executable decree and as such, there is no single document here warranting such a monetary decree. On the 9th ground of appeal, the grievance is how the said monetary figure 8,381,850,492 came out. In a consideration of RM Court’s consolidated ruling which was set aside by High court in appeal and the ruling in Misc. Civil Application which eventually was struck out, Mr. 22 Malongo is almost upset as to where and how the monetary decree of 8,381,850,492 came into being as per

Principal Resident Magistrate’s computation in Misc. Civil Application no. 7696 of 2024. He queried further that the 773,500,000 vide Misc. Application no 3 of 2022 also forms part in the 8 billion figure. How could it stand in while the case was struck out? He concluded that this was a gross error for a figure in application which was struck out to form part of the award to be executed. On the 11th ground appeal Mr. Malongo accused the Principal Resident Magistrate for being double standard and use of extraneous matters. He submitted that there was no good basis as to why the document in BGML5 was accepted as truthful but BMGL4 was not on allegation that the document being only signed on the last page it lacked authenticity. However, BMGL5 which was accorded weight was also signed on its last part. So long as there was no good counter affidavit on this fact, the Principal Resident Magistrate applied double standard. He also accused her for being speculative and not a court of law based on the facts adduced. He invited this court to have a glance at the case of NBC Limited and Another vs. Bruno Vitus Swalo, civil appeal no. 331 of 2019 CAT at Mbeya especially at page… on restriction of extraneous matters into the judgment. 23 As regards to the 12th ground of appeal, he faulted the Principal Resident Magistrate for applying /invoking the provisions of order XXI Rule 2 (1)(2)(3)

of CPC to the extent that as all the matters between the parties had been marked settled and closed, it was not the court’s concern how it was closed. So long as the parties had filed their memorandum of settlement and marked that the matter is closed and settled as per court’s order dated 29th Dec. 2022, the invoking of order XXI Rule 2(1) of the CPC was inapplicable. As in this matter there was no such adjustment, then the Principal Resident Magistrate was functus afficio to re-open it contrary to the order XXI Rules 2 of the CPC. If the Respondent had any grievance to the settlement, then the only legal avenue was first to challenge it either by way of review or appeal, argued Mr. Malongo. On this he drew support from the cases of Mohamed Enterprises (T) Limited vs. Masound Mohamed Nasser Civil Application No. 33 of 2012 at page 14. Having said all this, Mr. Malongo abandoned ground no. 14 of appeal, arguing that it is replica to the submissions made above. He concluded by praying that this court to fault the Principal Resident Magistrate’s ruling as being erroneous in ordering the respondent entitled to the decretal sum of 6,879,808,092. Thus this court is invited to quash 24 the decision of the Principal Resident Magistrate vide Misc. Civil Application No. 7696 of 2024, costs of this appeal and any other relief as this honourable court may deem just and proper to

grant. Resisting the appeal as argued, Mr. Mandela for the respondent first narrated the events as to how the two Miscellaneous Applications (18 and 19 of 2019) at the lower court came into being and the appeal before the High court. In essence he was elaborating the figures in Misc. Civil Application No. 19 of 2019 are different from the figures in Misc. Civil Application No. 18 of 2019. He added that what was affected by the High Court appeal’s decision is only what is contained in Misc. Civil Application No. 18 of 2019 in which was ordered that it should contain its own ruling and to have been made a report and calculation of the respondent’s entitlement from the deemed date of repatriation to the actual date of repatriation. It has not been disputed that just after the said directives of the High Court quashing the consolidated ruling of the lower court, the parties met and eventually drew a memorandum of settlement in which they had jointly agreed that the matter is settled and closed. The same was dully adopted by the lower court on 29th December 2022 as court’s decree and accordingly marked it as settled and closed. 25 Responding to the appellant’s submission in grounds 1,2,3,4 and 13 of the appeal, Mr. Mandela vehemently disputed that the subsequent lower court’s ruling dated 9th May 2024 vide Misc. Civil Application no. 7696 of 2024 on argument the court was functus

officio. He lauded that at the time of settlement, three applications were pending execution before the RM’s court which jointly make the grand total to be 8,381,850,492. Therefore, the memorandum of settlement dully filed by the parties and accordingly adopted by the court was for the full settlement of the whole 8,381,850,492 and not part. He bolstered then that as the memorandum of settlement is the binding contract between the contracting/signing, the same must be respected. As the appellant failed to honour it all but only 1,500,000,000 out of the 8,381,859,459, the fact of functus officio does not arise as argued. Mr. Mandela propped his argument making reference to clause 1 and 2 of the deed of settlement in which he construed as requiring the whole figure 8,381,850, 492 to be settled. Since the amount of Tsh. 6,879,808,092/= stands unpaid and the lower court through Misc. Civil Application no. 7696 of 2024 was justified to issue the garnishee order nisi and the absolute order subsequently. 26 On the sanctity of contract, he drew support from the case of Philipo Joseph Lukande vs. Faraji Ally Saidi, Civil Appeal no. 74 of 2019 that a contract is a promise legally binding. Therefore Misc. Application no. 7696 of 2024 is the basis of enforcing the said contract. Making reply to the submissions on grounds 5th, 6th, 7th, 8th, 9th, 10th, & 14th, Mr. Mandela in compounding

them, argued that the central issue there is the exact amount to be executed. That the deed of settlement has nothing of decretal sum to be executed, he highly disputed that assertion propping on clause 2 of the settlement (page 47 of the application for execution of decree) that to him, the total decretal sum stands at 8,381,850,492/= as per figure in Misc. Civil Application No. 19 of 2019, Misc. Civil Application no. 18 of 2019 and Misc. Civil Application no. 3 of 2022. With the referred case of Daud Kulwa (supra) by the appellant, he differed with it on the reasoning that the said case differs with the current case and is distinguishable to the content of the clause two of the deed of settlement. Thus the court’s decree must not be read in isolation of the court’s document supporting the decree. He added that by virtue of section 59 (1) of the TEA, the Principal Resident Magistrate rightly took judicial note of the Misc. Civil Application No. 3 of 2022. 27 Replying on submissions put on grounds no. 11 and 12 of the grounds of appeal, Mr. Mandela discredited the out of court settlement agreement (BGML4) on the basis that it was forged, fraudulent and false document and by the way it was not registered in court as decree. He argued, if BGML4 was signed on 20th Dec. 2022, why was it not made adopted by court on 23rd Dec. 2022 so as to comply with the order XXI Rule 2(2) of the

CPC. He concluded his submission by averring that the 1,500,000,000/= received by the respondent was just part payment of the 8,381,850,492 and that there was no any settlement deed signed by the respondent to adjust, abandon or relinquish the 6,879,808,092/= On this above submission, Mr. Mandela prayed that this appeal be dismissed with costs. As if what was submitted in chief was not sufficient, Mr. Malongo in his rejoinder submission further argued that reading the decision of the previous lower court’s decisions awarding the 3,120,091,692 (the order dated 8th July 2021), which in essence was set aside by the High court, the execution of the current application did not perse emanate from that order but by its order dated 29th Dec.

2022. Now reading that order there is nowhere the monetary decree is mentioned. 28 That even the High court in its appeal order dated Nov 2022 didn’t award any sum worth 8 billion as propagated. Thus the execution of 6 billion is unfounded. Mr. Malongo made insistence that what the court executes is not the parties’ claims but the court’s decree issued out of it. He reiterated his submission in chief on the issue of functus officio clarifying that as per Principal Resident Magistrate’s ruling on functus officio, she only relied on the strikeout order of Misc. Civil Application no. 3 of 2022 but the said application had nothing material but only on change of name and not monetary claim. Therefore, the issue the RM’s Court being functus officio has not been vehemently countered, submitted Mr. Malongo. All in all, Mr. Malongo was not in opposition with the principle of the sanctity of the contract as proclaimed in the case of Philipo Joseph lukonge (supra). However, on the same principle of sanctity of the contract in the current matter, there is nothing to bind the appellant but the respondent to refile this matter as per settled and closed matter and that the monetary figure of 8 billion purported to be computed by the respondent and backed up by the trial court was misplaced in the context of the current matter. 29 Re-joining on the respondent’s counter argument on grounds 5

– 10 and 14th of the appeal, Mr. Malongo submitted that the respondent’s submission is misplaced as there is no where either in the High Court decree or lower court’s previous ruling on consolidated ruling that the 8 billion figure is reflected. Therefore, the purported execution process lacks legal foundation for its stand. That the Principal Resident Magistrate took judicial notice pursuant to s. 59 (3) of the TEA which she invoked the Misc. Civil Application no 3 of 2022 is a misplaced argument in the context of this matter as it is merely the submission from the bar, reasoned Mr. Malongo. He added that for a court to take judicial notice, there first ought to be submission from the parties on the particular matter. Responding to the arguments that the purported out of court agreement dated 20th Dec 2022 was not registered in his settled legal mind, that was immaterial so long as the matter had been marked settled and closed, clarified Mr. Malongo. So long as that order is existing, the re- opening of the execution process in the absence of set aside or nullification of that order is legally inoperative as the court is functus officio, re-emphasised Mr. Malongo. 30 As regards to the extraneous matters, Mr. Malongo reiterated his submission in chief and adding that there was no any useful submission from the respondent. Replying to the submission of the legal requirement

under order XXI Rule 2(2) and (3) of the CPC, Mr. Malongo submitted that had there been adjustment of the decree, the provisions of Order XXI Rule 2(2) and (3) of the CPC would have been relevant. However, in the context of the current matter, so long as the parties had settled and closed the matter, it is not the court’s concern how they settled. Otherwise the court would have reduced the terms of the settlement to form part of its own decree. As it stands, there was nothing executable by the court. Whether BGML4 (the out of court settlement) was tainted with fraud, fraudulently taken and false document, if that assertion was true, the appropriate legal recourse was to file a suit as referred to the decision of the case of Mohamed Enterprises (supra), argued Mr. Malongo. After all this, he insisted that the appeal be allowed with costs both at this court and the lower court. I have keenly gone through the entire pleadings, submissions and authorities cited by both parties to the case. I have also taken into consideration the rival issues gathered from the parties. Scanning all 31 those, the vital question for consideration is one whether the appeal is brought with the sufficient cause. To arrive at that conclusion, as per narrated episodes of events preceding the current matter, the main issue for consideration is mainly one whether there is an executable decree by the court

as done? Looking at what was decided by this court on 24th November 2022 against the ruling of the lower court and the recorded settlement by the lower court from the memorandum of settlement by the parties which was dully executed and witnessed by their respective advocates, it is simple to get this answer and accordingly rule out whether the appeal is merited or not. I say so, basing on what was filed before the lower court which was an execution application of the decree of the High Court of Tanzania at Shinyanga vide Civil Appeal No. 25 of 2021 and the Memorandum of Settlement between the parties filed at the RM’s Court of Shinyanga on 23rd December 2022 and recorded by the same court on 29th December 2022. The High Court in its judgment dated 24th November 2022 in respect of these parties decreed as hereunder: (a) The appeal is allowed to the discussed extent. (b) The citing of the respondent’s name with the added extra piece of information, Barrick Gold Tanzania and Bulyanhulu Gold Mine Ltt is not 32 fatal and this court suo motto grants leave of the change of respondent’s name. (c) The purported consolidation of the appellant’s two applications for execution at RM’S court is nullified. (d) The resultant ruling which is complained in this appeal is taken to be valid ruling and represents only Misc. Civil Application No. 19 of 2019 to the tune of 3,120,091,692/= (e) The

complained ruling and order of the RM’S court made therein refusing execution of the Decree of the labour conciliatory Board of Kahama District dated 13th October 2003 in Misc. civil Application No. 18 of 2019 is hereby quashed and set aside. (f) The execution for Misc. Civil Application No. 18 of 2019 should expeditiously proceed upon the composition of its separate judgment by another magistrate with competent jurisdiction using the parties’ submissions which were made therein. (g) The labour officer to make a report and calculations of the appellant’s entitlement from the deemed date of repatriation to the actual date of repatriation there by giving chance for the appellant to apply for execution on such portion of entitlement. It is undisputed that just after this ruling, there was no deliberative move by the appellant to execute what was ruled by this court, either because there was an intended appeal to the Court of Appeal by the appellant (then respondent) as per notice of appeal filed or that there was waited a time available of appeal to pass. However, on the 20th December, 2022 the parties herein had filed at the lower court (Shinyanga RM’s Court) a memorandum of settlement on the following terms: 33 1. The Decree Holder agrees that upon withdraw of all the existing disputes, the judgment Debtor shall within 14 days of the said withdrawal pay the Decree Holder and his lawyers the agreed settlement amount in their respective bank accounts stated in the agreement.

2. The said settlement amount will be paid in full and final satisfaction of all present and /or future suits, claims, liabilities and /or demands whatsoever which he now has or may have at any time in the future arising out of or in connection with the order of the Labour Conciliation Board dated 30th August 2003, the Minister for Labour’s order dated 25th November 2006 and all the subsequent computations made thereof or to be made by either the labour officer and /or the Resident magistrate court of Shinyanga or the High Court of Tanzania.

3. The Decree Holder releases the Judgment Debtor and all the companies related or affiliated with it and indemnifies the Decree Holder in respect of all suits, claims, liabilities and demands including without limitation, all claims and liability out of the decision/ orders/mentioned at para 1 above 4. It is hereby agreed that the Decree Holder has no other past, present or future claims and or causes of action against Judgment Debtor howsoever arising from the said orders of the Labour Conciliation Board and that of the Minister for Labour or computation made by the labour officer or any ruling or judgment or decree made or issued by the Resident Magistrate Court of Shinyanga or the High Court of Tanzania. 34 5. The Decree Holder hereby waives with immediate effect any of his respective claims of whatever nature arising out and in connection with the above mentioned orders of the Labour Conciliation Board and that of the Minister for Labour.

6. By signing this deed, the parties hereby acknowledge that all the cases pending between the parties are hereby marked settled and by this agreement the parties pray that the said matters be marked as settled and closed. The said matters include but not limited to: (a) Misc. Civil Application No. 18/2019 between Patrobert Ishengoma and Kahama Mining Corporation (Barrick Gold Tanzania Bulyanhulu) (b) Misc. Civil Application No 19/2019 between Patrobert Ishengoma and Kahama Mining Corporation (Barrick Gold Tanzania – Bulyanhulu) (c) Misc. Civil Application No. 3/202 between Patrobert Ishengoma v.s Kahama Mining corporation. (d) Appeal by Kahama Minig corporation Limited v. patrobert Ishengoma which is pending at the court of Appeal. (e) Application for extension of time by Kahama Mining Corporation vs. Patrobert Ishengoma which is pending at the court of Appeal and (f) Misc. Civil cause No. 97 of 2007 between Kahama Mining Corporation Limited vs. Patrobert Ishengoma. 35 7.This Agreement may be pleaded as a bar or to strike out any action or proceeding commenced now or in the future for claims arising from the said order of the Labour Conciliation Board and the Minister for Labour the computation made by the labour officer and /or any court order made in the implementation of the said orders by or on behalf of any of the parties. 8.It is agreed that, once the Decree Holder and

or his advocate or advocates receive the payment from the Judgment Debtor, the decree or decrees issued in favour of the Decree Holder by the Labour Conciliation Board, the Minister for Labour, the Resident Magistrate Court of Shinyanga and the High Court of Tanzania Shinyanga will have been satisfied in full. From the submissions of both parties in this case, it is undisputed that the respondent within 14 days after the signing of this deed of settlement was credited with a colossal amount of money amounting 1,502,042,400/=. That was in early January 2023 I suppose. Now after a lapse of 16 months, the Respondent comes to the same RM’s Court executing the remaining balance of 6,879,808,092/= saying that he had a monetary decree of 8,381,850,492/=. Is it justifiable? In my thorough reading of the cases proceedings and judgment, there is nowhere that there was a court’s decree worth that amount 8,381,850,492/=. I am not questioning the legality of the monetary calculations arriving at that figure, but my interest is, is there any court’s 36 decree worth that amount so that it is executed? I have not seen one. What I can conclude on this monetary figure was just a mere figure from the respondent’s sources which was then supposed to be thoroughly scrutinized by the Court. The only amount that this Court assented its calculations was the claim vide Misc. Civil Application No. 19 of

2019 to the tune of 3,120,091,692/=. Regarding the calculations vide Misc. Civil Application No. 18 of 2019, this Court had ruled that the RM’s Court should expeditiously proceed upon the composition of its separate judgment by another magistrate with competent jurisdiction using the parties’ submissions which were made therein. Instead of executing this Court’s order on composition of its ruling, the parties met and settled. What they settled was not known to court but only recorded that they had settled and closed the matter. In consideration of that settlement, parties took their ways leaving no matter pending in court. The Respondent after a lapse of 16 months from when he had received that amount comes to the same court pressurising the execution of the remaining balance. In my considered firm view, there is nothing in the said High Court’s judgment (Kulita, J) decreeing that figure 8,381,850,492/= payable to the respondent nor the RM’s court order on settling and closing the 37 matter. The interpretation by Mr. Mandela that the memorandum of settlement is for full payment of 8,381,850,492/= is unsupported by any legal basis and thus a misplaced argument. Reading the terms and conditions of the dully signed memorandum of settlement keenly, there is nowhere there is a mention of payment of 8,381,850,492/=. By the way it even defeats the conscience of settlement. Reading the

said terms cumulatively and not disjointedly (clause 2 – 6), you get the impression that the settlement amount was not made available to the third parties but the parties themselves. However, the same was paid to the respondent (1,502,042,400). If that was okay, that is a web that the respondent dully knew it, and was well caught in. Returning to the Court purporting to execute the unknown remaining balance is to make this court trapped into a web that was not from the beginning invited to know its extent. Specifically reading clauses 5 -6 of the deed of settlement, the Respondent (Decree Holder) waives with immediate effect any of his respective claims of whatever nature arising out and in connection with the orders of the Labour Conciliation Board and that of the Minister for Labour. Furthermore, by signing that deed, the parties agreed that all pending matters between them were marked 38 settled and that by the said agreement the parties prayed that the said matters be marked as settled and closed. As the same was dully marked settled and closed, the Respondent is now precluded from bringing the same matter before the court purporting to execute the same cake he ate. The cardinal principle of the law of contract being the sanctity of the contract as expounded in numerous cases including Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R. 288 and Unilever Tanzania Ltd

v. Benedict Mkasa t/a Bema Enterprises, Civil Appeal No. 41 of 2009 (unreported) bars him from resurrecting what was buried. It is my position that if parties are not bound by the terms of their contract, then there will be chaos in the administration of justice, as today a party will say this and tomorrow will raise another issue. I agree with Mr. Malongo’s submission that if there was anything in the terms of their settlement not complied with (if any), what the respondent ought to have done was to file an application setting aside the deed of settlement reached either by review or revision as the case would have been. That means, by filing as an execution proceeding to the same court, firstly it is barred by the terms of the contract they agreed, secondly that the same is barred by section 38(1) of the CPC which stipulates that all questions relating to the execution, discharge or satisfaction of the 39 decree, shall be determined by the court executing the decree and not by a separate suit. Perhaps it is important to discuss a little how court’s decree is executed. According to law (Order XXI, Rule 1 provides that 1.-(1) All money payable under a decree shall be paid as follows, namely- (a) into the court whose duty it is to execute the decree; (b) out of court to the decree-holder; or (c) Otherwise as the court which made the decree directs. The relevant part in this

matter might be rule 2 of the Order XXI of the CPC which provides as follows: 2.-(1) Where any money payable under a decree of any kind is paid out of court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree- holder, the decree-holder shall certify such payment or adjustment to the court whose duty it is to execute the decree and the court shall record the same accordingly. (2) The judgment debtor also may inform the court of such payment or adjustment and apply to the court to issue a notice 40 to the decree-holder to show cause, on a day to be fixed by the court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the court shall record the same accordingly. (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any court executing the decree. As I said before, that in the current matter though the said settlement out of court has not been made known to court what are the terms of their settlement, but significantly it was certified so by the decree holder reading clause 2 of their memorandum of settlement and by clause 3, he relinquished all the claims against the appellant. Since that was the satisfaction by the parties

themselves, it was not necessary that the same should have satisfied the Court. Since the decree satisfies the decree holder and not the court, if the decree holder is then satisfied, what else should the court insist on its satisfaction? By the way as per this Court’s decree, what was actually readily to be executed was 3,120,091,692/=. The other sum was not yet known as it needed 41 further calculations (plus or minus) in which fortunately the parties had decided to settle instead of taking the legal course directed. As that matter was then marked settled and closed, legally is conclusive that the parties had settled and the court marked it finally as closed. All this said and done, in consideration of the parties’ submissions, authorities given and the Court’s deep digest the following is the summary of the Court’s verdict of the matter as per discussion above: 1. The RM’s court was functus officio to re-open the matter which was finally closed after the parties had settled and marked so.

2. In the current matter, there was no monetary decree by the court worth 8,381,850,492/= but the one readily known was 3,120,091,692/= 3. Though there was no settlement amount as per deed of settlement, but it is clear that an amount worth 1,502,042,400/= was subsequently paid to the respondent upon the signing of the deed of settlement and he dully relinquished any possible claims against the appellant.

4. If there was any dissatisfaction of the terms to the memorandum of settlement signed, the appropriate legal recourse by the 42 respondent was to apply for setting it aside the said deed of settlement.

5. What is executed is the court’s decree and not the parties’ wishes. A wish is not court’s decree thus not executed.

6. Where the superior court directs in appeal or revision what to be done by the lower court, that is a directive. If the party in benefit of the order opts otherwise, is himself to blame as the court cannot force him to execute what was ordered. The RM’s court was therefore not justified in re-entertaining the said application on the matter the parties themselves had considered it as settled and closed as it had no legal keys of re-opening the same. It was therefore wrong for the respondent to file another application purporting to execute the same decree in respect of the same matter. By the way, as correctly directed by the Court of Appeal in Saul Henry Amon & Another vs Hamis Bushiri Pazi & Others (Civil Application No. 264) [2024] TZCA 275 (22 April 2024), that a court of law cannot somersault and turn a blind eye at well-established principle of law that litigation must come to an end to avail litigants an opportunity to indulge in other productive endeavors. Parties should also know that there is no richness 43 vide court proceedings. What a court of law does is merely granting justice to litigants but not richness. Just by way of comment, studying the calculations done by the said Labour Officer, so long after the Minister had ruled on the fate of the said appeal, his decision was final and conclusive. Everything in respect of that employment came to an end and the

calculations ought to have ended there. Any other interpretation beyond the Minister’s order was legally ultravires (Subsistence allowance “per diem” for the period from 25/11/2006 i.e the date of termination to the deemed date of repatriation or (24/11/2018)). By the way, what the employee deserves payment pending his repatriation is, as a matter of best practice has been endorsed not exceeding the employees’ monthly basic salary saying that it was, and still is, a good law today (See Paul Yustus Nchia V. National Executive Secretary Chama Cha Mapinduzi, Civil Appeal No. 85 of 2005, Gasper Peter V. Mtwara Urban Water Supply Authority (Mtuwasa), Civil Appeal No. 35 of 2017. All that the Labour Officer calculated might not be the very correct legal calculations and might be the basis of all this chaos. I wonder if there has been any employee in Tanzania having enjoyed such an attractive terminal benefits’ calculations 44 as the Respondent in this case. After all, digesting the both calculations, the same are duplicate and overlapping. It is strange, for instance for the same employee to get perdiems on same dates: 30/8/2003 – 30/4/2018 and Subsistence allowance “per diem” for the period from 25/11/2006 i.e the date of termination to the deemed date of repatriation or (24/11/2018) for the two applications in respect of the same person. Most of the latter dates i.e from 25th

November 2006 are duplicate in payment to the former dates). In any way, it does not need a degree in Basic Mathematics to find out this duplicity calculation. My fair comment is; people should strive for justice but not unscrupulous richness such as this one. All that can be said in this matter, was the organized calculation not for fairness but just for unlawful gain. Having said all this, in the end result, the order by the RM’s Court ordering garnishee order nisi and its subsequent garnishee order absolute against the appellant’s bank account in respect of Bank Account Numbers: 100542044 and 100542048 By Citibank Tanzania holding the sum of TZS: 6,879,808,092 (Six Billion, eight hundred seventy-nine million, eight hundred and eight thousand and ninety-two shillings) issued on the 9th May 2024 by the Resident Magistrate Court of Shinyanga are hereby quashed and set aside for being unlawful and legally unjustifiable. 45 With all the said, the appeal is allowed. Right of further appeal is explained. DATED at SHINYANGA this 28th day of June, 2024. F.H. Mahimbali Judge. 46