20100611 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA

AT DODOMA CIVIL CASE NO. 5 OF 1998 ABUTWALIB MUSSA MSUYA &. OTHERS ...................... APPELLANTS/PLAINTIFFS (APPLICANTS/DECREE HOLDERS) versus 1. CAPITAL BREWERIES LIMITED 2.GIRISH T. CHANDE ...... RESPONDENTS/ 3.CHARLES R.B. RWECHUNGURA DEFENDANTS (JUDGEMENT DEBTORS) ./~ 27/04/2010 & 11/06/2010 f,

RULING HON. MADAM, SHANGALI, J. This is an application for the execution of the exparte decision . , .. J (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 ~pplication 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 1 ... -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/d~fendants 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 extensio~ 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 applicatio"n 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; ..... 3 ''I 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. :ro 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 tides 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 • court - - - -"{1Zh Ed. P.

145. Precedents of Pleadings)." Consequent to that decis~0n Ule 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 applica~ion was granted by this Court ·cu1a, J ) and the matter was referred to the Court of Appeal. On· 3/02/2009 the matter" w~s finalized before· the Court of Appeal when the respondent/defendants decided to withdraw the ~ 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. Ttie applicants, decree hold_ers were · -t n·ot_ represented, they appeared ii) person. w_~ile Mr. Passi,· learr:1ed 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 anq imprisonment of th_e person of the second

respond~t/judgement debtor as a civil prisoner. The reason behlnd 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 prop~rties 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 submitt~d 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 COf'Dmitted to prison as a civil prisoner; In his long written submission, Mr. Passi ·1earned 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. Passi claimed that executing the decree against the second judgement debtor would amount to viqlation of the cardinal principal that Directors .are not liable for acts of 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 ,_judgement debtor- and that the decree sought ·.to be executed is defective. Nonetheless, Mr. Passi admitted the existence ·of ·an ex-parte - decree against hi$ client and he further conced~ -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· . 1 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 •• ,.7 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 . ,1 7 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 compani~s (Winding-up) rules 1929 provide that unless proof by affidavit of_ the debt against the receive manager is done, there cannot be a c;ause of actio_n 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 rn 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

Jhe Registrar to sign such decrees. To be precise· order XLIII, rule I (d) provide; "1. Subject to any ge'fleral 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•l I/ - - - - - -., .I£: ( 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 and, when the judge or magistrate has satisfied himself that the decree has been drawn up in accordance with the judgement f:. he shall sign the decree. .,., In conclusion therefore, this ·application is hereby granted as . . , prayed. May be I should add that Order ~IX ~ules 35 and 36 of -; the Civil Procedure Code Cap. 33 deals _with decree in Appeal and . . . not decree in execution process where ryo 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. -· J M.S. 11/06/2010 ... 9 11/06/2010