FINCA MICRO BANK T LTD Vs

IN THE HIGH COURT OF TANZANIA DODOMA SUB – REGISTRY AT DODOMA MISC. LABOUR APPLICATION NO. 24579 OF 2024 (Arising from the Ruling/Order in Labour Execution No. 11768 of 2024 dated 05 th September 2024, before Hon. Lushasi, Deputy Registrar, Originating from the award in Labour Dispute No. CMC/DOM/81/2021.) FINCA MICROFINANCE BANK TANZANIA LIMITED.…………..………APPELLANT VERSUS JALALA HUSSEIN….…………………………………………………………RESPONDENT RULING Date of last Order: 14/11/2024 Date of Judgment: 13/12/2024 E.E. KAKOLAKI, J. In this application the applicant is seeking to lift up the Garnishee order nisi issued by this Court on 05/09/2024 against her bank account No. 2230660143 maintained at NMB Bank PLC, NMB House Branch, Dar es salaam for realization of the decretal sum of Tshs. 42,265,384/- being the respondent’s award by this Court in its decision of 26/03/2024 (High Court Labour Division at Dodoma), Revision No. 28234 of 2023, on the ground that, the order was wrongly entered as the garnishee is not found within the 1 jurisdiction of the Court. The application is preferred under section 2(3) of the Judicature and Application of Laws Act, [Cap. 358 R.E 2019], sections 38(1) and (2) and 95 of the Civil Procedure Code, [Cao, 33 R.E 2019] (the CPC), supported by the affidavit duly sworn by one Beatus Malawa, applicant’s principal officer stating other grounds upon which the application is premised on as well as the statements of legal issues arising from the contentious matters. The other deposed grounds are that, there is no garnishee absolute against the applicant nor is there any stay of execution proceedings for determination by the Court, thus, the applicant stands to suffer irreparable loss if the application is withheld as the garnished account is used to pay salaries for more than 3,000 employees of the applicant. In view of those grounds the applicant calls this Court for determination of the following issues: 1. Whether the applicant has demonstrated good cause to warrant this Court grant her the sought orders. 2. Whether the executing Court had jurisdiction to grant garnishee order nisi outside its territorial jurisdiction. 2 In view of the above the applicant is inviting this Court to grant the application upon consideration of the said grounds and determination of the proposed issues. In his reply the respondent vehemently resisted the application as he filed the counter affidavit to that effect duly sworn by him, deposing that, the executing court had all the necessary jurisdiction to issue the said garnishee order nisi against the applicant as her account is operated by NMB Bank PLC which has various branches in the country Dodoma Branch inclusive. And further that, this Court has unlimited territorial jurisdiction to entertain execution matters. At the hearing Mr. Mohamed Nyenye, appeared representing the applicant while Mr. Erick Christpher, advocating for the respondent, both learned advocates and the matter proceeded in writing in which filing schedules were complied with and without failure, hence this ruling made possible. I appreciate the efforts employed by both legal minds in such endeavour. I took considerable time to peruse and consider the contending submissions by the parties as well as reviewed the relevant laws and case laws related to execution of decree or award. Principally parties are at one that, in this 3 matter no garnishee absolute was issued against the applicant nor is there any pending application for stay of execution against the challenged garnishee order nisi. Further they are not at dispute that, under section 38(1) of the CPC this being as subsequent court to executing Court is crowned with the necessary jurisdiction to entertain all matters or disputes arising out of execution including lifting up of garnishee order nisi subject of this application. What remains in dispute are the two above stated issues as proposed by the applicant and duly conceded by the respondent before were adopted by the Court so as to enable it determine this application. In my considered view determination of the first issue will also cover the second issue. It is settled law as correctly pronounced by this Court in the case of Step in Limited Vs. Dar es salaam Institute of Technology (DIT), Misc. Commercial Cause No. 328 of 2015 (HC-unreported) that, for the garnishee nisi to be uplifted the applicant must prove before the Court that, there were irregularities or the decree has irregularities. In the present matter it is submitted by Mr. Nyenye that, sections 33 of the CPC provides that, a decree may be executed either by the court that passed it or by the court which it is sent for execution. And further under section 34(1)(b) of the CPC that, the decree holder may transfer the decree for 4 execution into another court if such the judgment debtor has no property liable for attachment within the local limits of the jurisdiction of the court which passed the decree sufficient to satisfy such decree but has a property within the local limits of the jurisdiction of such other court. Relying on SAKKAR, Civil Procedure Code, 11 th edition, at page 329, that gave interpretation of the provisions of section 39 of Indian Civil Procedure Code which is in parametria with section 34(1), Mr. Nyenye said the provision is interpreted to mean that, nothing in the section shall be construed as an authority in the court to execute a decree against the person or property outside the local limit of its jurisdiction. According to him in the present matter the Deputy Registrar acted without jurisdiction when issued the garnishee order nisi directed to the applicant’s account operated with NMB Bank PLC which its branch is located at Dar es salaam, outside this Court’s jurisdiction despite of the fact that the applicant has no property for attachment with this Court’s jurisdiction hence an infraction of the law as provided under section 33 of the CPC since the Court if the order is defaulted will have no jurisdiction to deal with the garnishee for being outside its territorial jurisdiction. He contended, the respondent ought to have transferred his decree to Dar es salaam for execution there as it is where the 5 garnishee (NMB branch) is residing and where the garnished account is operated. He backed his legal stance with the case of Martyn Vs. Kelly (1871) IR 5 C.L 404 where Chief Justice Drake observed when considering treaties on the Law of Attachment (7th edition) section 474 that, it is pointed out that under the customs London one cannot be charged as garnishee unless he resides in the jurisdiction of the court. On the other beats Mr. Nyenye argued, if the application is withheld the applicant stands to suffer irreparable loss since the attached account is used to pay salaries to her employees and that, there is certainty of the respondent being paid even without attachment of the account as the same is operated in the Government agency (bank). He concluded that, on the balance of convenience the weighing scale is tilting on the appellant’s side hence prayed for the grant application. In response Mr. Christoper resisted applicant’s submission arguing that, the Deputy Registrar was possessed with the necessary jurisdiction to entertain the matter and grant the impugned order as she was acting under section 89 of the Employment and Labour Relations Act, [Cap. 366 R.E 2019] that mandates the Labour Court which as per the interpretation is the High Court, with powers to executed CMA awards. According to him, there was no any 6 violation of section 33 of the CPC as asserted since the same provides that, the decree may be executed by the court that passed it or where it is sent, which in the present matter it is the Court which gave the last order. Regarding the submission that also section 34(1) of the CPC was violated, he recanted the submission while submitting that, the same refers to requirement of sending the decree to another court if there is nothing to attach in the place where the judgment debtor lives and not the jurisdiction of the court to entertain the execution application which is the heart of contention in this matter. He also attacked applicant’s submission that, it was wrong for the Court to attach the account at NMB Bank PLC, Bank House branch – Dar es salaam which is outside its jurisdiction advancing four grounds. One that, the point was never raised and determined before by the executing court, hence an afterthought. Second that, NMB Bank PLC is banking institution operating under the same name countrywide through its branches in which an account for attachment can be access from any branch, hence the garnishee order nisi correctly issued by this Court and in accordance with the law and that is why the same was accepted by the Dodoma branch and worked on. Thirdly that, this Court has unlimited jurisdiction including entertainment of execution applications and fourthly 7 that, the relied-on authorities by the applicant are distinguishable from the facts of this case as most of them are based on execution of debt in another jurisdiction and not attachment of bank account in the bank operating countrywide through its branch. In view of the above submission the learned counsel prayed the court to dismiss the application for want of merit. In rejoinder submission counsel for the applicant almost reiterated his submission in which while adding in response to the submission by the respondent that, in respect of the issue of jurisdiction of the Court to issue garnishee order nisi against account operated in the bank branch outside its jurisdiction, jurisdiction is a creature of statute hence can be raised at any time. As to who specifically was responsible to execute the order he said is the NMB headquarters which is located at Dar es salaam and outside executing court’s jurisdiction as the applicant had no money in any account at NMB Dodoma branch rather at Dar es salaam hence the requirement to send the decree/award there and in compliance with section 33 of the CPC. With all the above submission he maintained his prayer that this application be allowed by lifting the assailed garnishee order nisi. Upon consideration of the fighting submissions by the parties, it is true and I agree with both of them that the settled law under section 33 of the CPC 8 is that, a decree may be executed either by the Court that passed it or the court to which it is sent for execution. Sending the decree or award outside the court which passed it, is done upon the application by the decree holder to the Court and the circumstances under which the same can be sent there is provided under section 34(1) of the CPC, one of them being where the judgment debtor possesses no property within the local jurisdiction of the Court issuing the decree. See section 34(1)(b) of the CPC. I find solace in a persuasive case of Bank of Bengal Vs. Sarat Ch. Mitra (1919) 4 Pat L.J, which appears to me to carry correct position of the law as obtained in section 34(1) of the CPC, where the Court observed thus: ’’Speaking generally, it is accepted principle of international jurisprudence that the jurisdiction of the court in enforcing execution of the decree is restricted by territorial limitation, that is to say jurisdiction of the court is circumscribed and co extensive with territorial limit. Thus the court that desires seizure or attach of property of judgment debtor outside its jurisdiction and where such property is in the hands of, or of the custody of another outside the jurisdiction, such property sought to be attached in aid of the execution can only be reached by regular method of procedure which has been provided by the rules of Civil 9 Procedure Code and other similar code prevailing all over the countries thus the decree of executing court must be transferred to the local limit of jurisdiction of external court which the property sough to be attached is located.’’ (Emphasis supplied). In this matter it is learnt from the impugned ruling/order that, the respondent pointed out to the execution Court for attachment, applicant’s bank account operated at NMB Bank PLC, Bank House branch- Dar es salaam as her only property liable for attachment in realization of his award of Tshs. 42,265,384/-. This was after his failure to allocate any of the appellant’s property within precincts of the execution court. Now the issue for determination as raised earlier on is whether the executing court had jurisdiction to issue the garnishee order nisi against applicant account opened outside its jurisdiction. In his rejoinder submission, Mr. Nyenye who is challenging that jurisdiction on the ground that the garnishee is located outside execution court’s jurisdiction conceded that, the said NMB Bank PLC operates countrywide through different branches. It is common knowledge and I need not cite any authority to that effect that, once client’s money is deposited in the bank account by the client through any branch or agent, it becomes bank’s property or money and not of the branch in which the 10 account was opened as it holds the said money on behalf of the client since the same can be demanded by the account holder and be paid at any time through any branch or agent of that bank. In view of that undisputed fact, I am far from embracing Mr. Nyenye,s submission that in terms of the provisions of section 34(1) of the CPC it is was mandatory for the execution court to transfer the decree to the place of garnishee where the judgment debtor opened her bank account. I so differ as money is a chattel which is movable, since the same can be deposited by the bank customer/client at any time and through any bank branch or agent and withdrawn at any time through any bank branch or agent. As the bank branch can accept deposit from the client regardless of whether the account in which money is deposited and withdrawn was opened in the same branch, I do not see any point as to why garnishee order nisi cannot be issued against the bank account operated by the same bank even if not found with the local limit of the executing Court, since the object of the said garnishee order nisi is to operate as an injunction to restrain the garnishee from paying out the money out of the attachment fund. See the case of Mogas International Limited, Mogas Tanzania Limited Vs. Usangu Logistic Limited, Misc. Commercial Application No. 27 of 2021 (HC-reported). To hold otherwise in 11 my humble view is not only to set a bad precedent and invite chaos in the whole process of execution of court decrees or awards but also to create conducive environment for unscrupulous judgment debtors to circumvent execution of court’s decree and orders since court orders and I would add, decrees or awards are issued to be respected and complied with, thus a Court should at no point of time condone any attempt to circumvent them without valid reasons. See the cases of Olam Tanzania Ltd Vs Halawa Kwilabya, DC Civil Appeal No. 17 of 1999 and Tanzania Breweries Ltd Vs. Edson Dhobe and 19 Others, Misc. Civil Application No. 96 of 2000 (both HC-unreported). I thus do not find any justifiable reasons to interfere with execution court’s jurisdiction to issue the said garnishee order nisi as it correctly exercised its powers in accordance with the law. Regarding to other applicant’s grounds in support of the application that she will suffer irreparable loss if grant of the application is withheld and that, the weighing scale on who is likely to suffer more tilts on appellant’s side, as correctly submitted by Mr. Christopher, the submission which I shoulder up with, the same do not constitute sufficient reasons warranting this Court uplift the garnishee order nisi against her. The said grounds were adumbrated in the case of Step in Limited Vs. Dar es salaam Institute 12 of Technology (DIT) (supra), the grounds which grounds I find she has failed to prove. All said and done, I make the findings that this application is meritless and the same is hereby dismissed in its entirety. Each party to bear own costs. It is so ordered. Dated at Dodoma this 13th day of December, 2024. E. E. KAKOLAKI JUGDE 13/12/2024. Court: The Judgment has been delivered at Dodoma today on 13 th day of December, 2024, in the absence of the appellant and in the presence of Mr. Ramadhani Akulichombe, Respondent's representative and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 13/12/2024. 13