abutwalib mussa msuya others vs capital breweries limited others 2010 tzhc 168 11 june 2010

IN THE HIGH COURT OF TANZANIA

AT POPOMA CIVIL CASE NO. 5 OF 1998 ABUTWALIB MUSSA MSUYA & OTHERS .......................... APPELLANTS/PLAINTIFFS (APPLICANTS/DECREE HOLDERS) versus 1. CAPITAL BREWERIES LIMITEP 2.GIRISH T. CHANPE RESPONPENTS/ 3.CHARLES R.B. RWECHUNGURA PEFENPANTS (JUDGEMENT DEBTORS) 27/04/2010 & 11/06/2010

RULING HON. MAPAM. SHANGALI.

3. This is an application for the execution of the exparte decision (Kyando, J). in Civil Case No. 5 of 1998. The relevant execution proceedings were filed and marked as Miscellaneous Civil Application No. 21 of 2001. The same was stayed by this court (Kaijage, J) on 2/12/2001 pending the hearing of an application to set aside the exparte judgement. For avoidance of confusion let me narrate, albeit briefly the history of the matter. Back in April, 1998 the plaintiffs/applicants 2 filed their Civil Case No. 5 of 1998 in this court suing the ♦ respondents/defendants claiming for their terminal benefits and other ancillary reliefs. The respondents/defendants failed to respond to file their written statement of Defence and in the result on 18/10/2000 the exparte judgement was pronounced in favour of plaintiffs/applicants. The plaintiffs/applicants filed an application for the execution of the exparte decree by arresting and detaining the second respondent as a civil prisoner. That is Miscellaneous Civil Application No. 21 of 2001. On the other hand the respondents/defendants filed an application praying for extension of time to file an application for setting aside an exparte judgement dated 18/10/2000 and stay of ^ execution proceedings pending the hearing of the application to set aside the ex-parte judgement. On 2/12/2003 the court granted the respondents/defendant application

and stayed execution proceedings in Miscellaneous Civil Application No. 21 of 2001. Unfortunate to the respondents/defendants all their efforts to set aside the ex-parte judgement ended in vain. Their application for extension of time to file an application to set aside exparte judgement was dismissed by this court (Masanche, J) in his decision dated 20/03/2007. In that decision the court soundly and correctly castigated the respondents/defendants and their advocates for their dilatory litigations aimed to defeat the purpose of the judicial process. At page 6 of that decision the court observed that; 7 am of the settled opinion that there is a deliberate dilly dallying by the applicant in order to frustrate the respondents who got judgement from Kyando, J procedurally. To me, these antics by the applicants are ; vexatious. Bullen Leak and Jacobs say this, of frivolous or vexatious proceedings: They say: — pleading or an action is frivolous when it is without substance or groundless or fanciful and it is vexatious when it lacks bona fides and is hopeless or oppressive and tends to cause the opposite party unnecessary anxiety, trouble and expense. Thus a proceeding may be said ♦ to be frivolous when a party is trifling with the co u rt --------- "(12th Ed. P.

145. Precedents of Pleadings)." Consequent to that decision tine plaintiffs/applicants attempted to proceed with their execution proceedings. The respondent/defendants managed to convince this court that they have already filed a notice of appeal to the Court of Appeal against the decision of this court (Masanche J.) together with a notice of motion in the Court of Appeal praying for stay of execution of the 4 same decision. Their application was granted by this Court (Lila, J ) and the matter was referred to the Court of Appeal. On 3/02/2009 the matter was finalized before the Court of Appeal when the respondent/defendants decided to withdraw the of matter before the Court of Appeal. The case file was accordingly returned to this court to proceed with the pending execution proceedings in the miscellaneous Civil Application No. 21 of 2001. That is the matter before me to determine. On 11/03/2010, I allowed the parties to argue the application by way of written submission. The applicants, decree holders were not represented, they appeared in person while Mr. Possi, learned Advocate appeared for the respondents, judgement debtors.- In their submission the applicants/Decree Holders narrated the long and sad story of their case and stated that they are simply praying for an order allowing the arrest and imprisonment of the person of the second respondept/judgement debtor as a

civil prisoner. The reason behind is that since the pronouncement of the exparte judgement on 18/10/2000 against him, the second judgement debtor has deliberately refused to honour it and instead he has disposed of all the properties that belonged to the first respondent/judgement debtor where he was the principal officer and then disappeared for good. 5 The applicants/decree holders avers that section 44 (1) of the Civil Procedure Code, Cap 33 read together with Order XXI, rule 28 of the same law is applicable in this application being one of the modes of execution for decree for payment of money. The applicants/Decree Holders further submitted that so far as GIRISH T. CHANDE is one of the defendants in Civil Case No. 5 of 1998, the decree of which is sought to be executed, the application against him is just and proper because he has failed or refused to pay decretal amount plus interest or part of it. They prayed for order for him to be committed to prison as a civil prisoner. In his long written submission, Mr. Possi learned advocate object the application and introduced some matters which goes beyond the essence of the application. In fact a good part of his submission is nothing but attempts to make this court to review what has already been determined or and to hear the defence which was thwarted for non-compliance with procedural laws. In short Mr. Possi claimed that

executing the decree against the second judgement debtor would amount to violation of the cardinal principal that Directors are not liable for acts o f their companies. He stated that the applicants are attempting to benefit from their failure to prove their debt against the receiver/manager, the third 6 Judgem ent debtor- and that the decree sought to be executed is defective. Nonetheless, Mr. Possi admitted the existence of an ex-parte decree against his client and he further conceded that the decree- holder may execute his decree against anyone named in the decree. Having gone through the parties submissions and rejoinder, I am of the opinion that no wrong was committed by the decree holders seeking to execute the exparte decree against the second judgement debtor because he is one of the defendants condemned in the exparte judgement of which he failed to appear and defend himself. It must be noted that status of the parties in the suit and issues of maintainability of a claim are supposed to be raised in the pleadings as per Order VIII Rule 2 of the Civil Procedure Code. What is before this court at this stage is the execution process against the judgement debtors and not who was supposed or who was not supposed to be sued. I entirely agree with the applicants/Decree holder's submission in their rejoinder that arguing on the legality of jr the decree holders suing the

second judgement debtor in person amounts to swaying this court and pushing it to go back to determine matters ought to be discussed in the preliminary objections. On the second ground, I am convinced that since the case was proved exparte and now we are at the stage of execution there is no : / ~ i basis to claim that the Decree Holders failed to prove their debt against the third judgement debtor. The debt has already been proved in the exparte decision against all three judgement debtors. The companies (Winding-up) rules 1929 provide that unless proof by affidavit of the debt against the receive manager is done, there cannot be a cause of action against him by claimants in a suit. That means lack of cause of action is one of the issues to be discussed before a case goes for trial, and indeed such are issued raised in preliminary objections. Therefore, the proper forum for such legal issues would have been during trial of the suit and not in execution proceedings. The second ground is therefore misconceived and the cited cases to support it are irrelevant to this matter. . On the last ground, I am of the view that in law the decree is not defective. Order XLIII, rule 1 (d) read together with order XX, rule 7 of the Civil Procedure Code, (Cap 33 R.E. 2002) empowers the Registrar to sign such decrees. To be precise order XLIII, rule I (d) provide; "1. Subject to any general or

special direction of the Chief Justice, the following powers may be exercised by the Registrar or any Deputy or District Registrar or the High Court in any proceeding before the high Court - (a) - - - - (b ) ---- 8 (c) ----- • (d) to sign decree under Order XX, rule 7: — " Order XX, rule 7 provide: "7. The decree shall bear the day on which the judgement was pronounced andf when the judge or magistrate has satisfied himself that the decree has been drawn up in accordance with the judgement he shall sign the decree." In conclusion therefore, this application is hereby granted as prayed. May be I should add that Order XXXIX rules 35 and 36 of the Civil Procedure Code Cap. 33 deals with decree in Appeal and not decree in execution process where no appeal was preferred. The second judgement debtor, GIRISH T. CHANDE is hereby ordered to pay the decretal amount plus interest thereof to the applicants/Decree holders immediately or arrested and committed to prison as a civil prisoner forthwith. 11/ 06/2010 9 Ruling delivered todate 11th June, 2010 in the presence of all applicants/decree holders and absence of the judgement debtors and their a d v o c ^ ^ w r f^ S w H P was aware of this ruling date. 11/ 06/2010