gapco tanzania limited vs ramzan d walji company limited 2016 tzhc 2092 10 may 2016

IN THE HIGH COURT OF TANZANIA AT MBEYA MISCELLANEOUS LAND APPLICATION NO. 35 OF 2016 ) (Original Land Case No. 1 of 2010 GAPCO TANZANIA LIMITED.................................... APPLICANT VERSUS RAMZAN D. WALJI COMPANY LIMITED RESPONDENT RULING Date of last Order:04/ 05/2016 Date of Ruling: 10/ 05/2016 A.F. NGWALA, J. The Application that has been made under the provisions of Sections 68 (e) and 95 of the Civil Procedure Code Act [CAP. 33 R.E. 2002] preceeded by a Certificate of Urgency, seeking for an Order to lift the Garnishee Order dated 22nd April, 2016 issued by the Deputy Registrar, High Court of Tanzania at Mbeya in Land Case No. 1 of 2010 has been objected to on point of law. It is against the Chamber Summons supported by the affidavit of one Anna Mwakatundu. l Mr. Mbise the learned Counsel for the Respondent submitted in support of the objection; that the application was incompetent and defective as it was brought under provisions of general application. The said provisions were irrelevant to the orders sought. It was submitted that the court was therefore not properly moved to entertain the application. Elaborating on the preliminary objection, Mr. Mbise argued that Section 68 (e) of the Civil Procedure Code provides that:- “In order to prevent the ends o f justice from being defective the court may subject to any rules in that behalf;- make such other interlocutory order as they may appear to be just and convenient. ” The Section according to him had nothing to do with any of the orders sought by the applicant in the Chamber Summons. Mr. Mbise further submitted that Section 95 of the Civil Procedure Code cannot be used to move the court to make an order to lift the Garnishee Order and to substitute thereto with an order to deposit security issued on 30th March, 2016. He contended that the said Order cannot be issued under the authority of Section 95 of the Civil Procedure Code. The garnishee order was issued to attach the applicant's moneys lying in the Bank. It was an attachment of property in the execution of a decree. Mr. Mbise was of the firm view that for the court to be properly moved, the applicant ought to have cited the law relating to removal of attachment under Order XXI Rule 54 of the Civil Procedure Code CAP.33 R. E. 2002. The whole process of attachment of property in execution of a decree and release fall under Order XXI of the Civil Procedure Code and not otherwise. In support of his submission, Mr. Mbise cited the case of TANESCO vrs. IPTL and 2 others (2000) T. L. R. 327. Mr. Mbise insisted that it is a legendary that the Court is not supposed to gamble as to which provision is applicable in a given situation. It is the duty of the applicant to specifically cite the relevant provisions of which he derives the power to move the court to hear and determine the application. This argument was supported by the case of Frank Paulo Manyany i vrs. Mbeya Cement Co. Ltd, Civil Application No. 1/2010 (unreported) together with the case of GAPCO Tanzania. Ltd vrs. Ramzan D. Waldji Co. Ltd, together with the case of Rutagatina, C. L. vrs. The Advocates Committee and Another. Lastly Mr. Mbise, submitted that the prayer for lifting a Garnishee Order and substituting it with an order to deposit security for payment of the amount ordered in the decree amounted to double pronged application as it is not known under what provision of the law this court derives power to make such an Order. In his turn the learned Counsel for the applicant Mr. Nyika strongly resisted the preliminary objection on the grounds that their application has been properly made under Sections 68 (e) and 95 of the Civil Procedure Code. He argued that the marginal notes on Rule 54 of Order XXI of the Civil Procedure Code is for the removal of attachment after satisfaction of the decree. Mr. Nyika submitted that their prayer is to lift the Garnishee Order and substitute it with an order that they deposit the security for payment of the decretal amount. He argued that they have cited Section 68 (e) of the Civil Procedure Code because the Section gives the general powers of the Court with regard to interlocutory proceedings intended to help appellants during the cause of prosecuting their case before or after Judgment to protect the subject matter of the case until when the case is finally determined. In respect of Section 95 of the Civil Procedure Code, Mr. Nyika submitted that since there is no provision in the Civil Procedure Code to lift the Garnishee Order that does not mean that the court does not have power to do so. More so it is the very Section 95 of the Civil Procedure Code which serves the inherit powers of the court to make such orders as may be necessary to prevent the abuse of the court process. The commentaries by Mulla on the Civil Procedure Code of India, on Section 151 which is in parimateria to Section 95 of our Civil Procedure Code, at page 1380 were cited to support this argument. Mr. Nyika contended that the applicant had never cited any wrong provision as submitted by Mr. Mbise as in the case of Lutagatina C. L. vrs. Advocates Committee. The counsel distinguished this case by pointing out that it was not relevant in the instant case as they had not cited wrong provisions of the law. He insisted that Order XXI Rule 54 (6) of the Civil Procedure Code is not a provision for lifting a Garnishee Order. In his rejoinder Mr. Mbise stood to his guns that Section 68 (e) of the Civil Procedure Code deals with interlocutory matters only. As the matter at hand is not an interlocutory matter, because there was no pending matter before the court for which interlocutory relief or order can be applied. He insisted that Section 68 (e) does not apply to the facts of the case at hand. In respect of Section 95 of the Civil Procedure Code, Mr. Mbise stated that this Section had never been a specific provision in the Legislature as submitted by learned counsel, Mr. Nyika. It is a provision of general application. As it is not specific to any issue, then the commentaries by Mulla which are in parimateria to Section 95, are not consonant to this matter and Mulla has never mentioned the lifting of a garnishee order and substituting it thereto for an order to deposit security for payment of decretal amount. He insisted that Section 68 (e) and 95 of the Civil Procedure Code do not confer jurisdiction to this honourable court to deal with the present case. The power to revise the decision of the District Registrar, that is in built in the application as the prayers was double pronged, since no provision has been cited to enable the court to do so, hence this court was not properly moved. Lastly, he prayed that the preliminary objection be sustained and the applicants should suffer the consequences as usual. In view of the submissions by both the learned Counsels for the parties this court is enjoined to determine and rule out whether or not the application before it is incompetent or not. In the first step of my reflection, I find it paramount to adopt the meaning of garnishee as stated in the case of Simon Matafu as liquidator of Tanzania Housing Bank vrs. M/S Concrete Structures Building Contractors, Civil Appeal No. 171 of 2004, the Court of Appeal Tanzania, at Mbeya (unreported). Garnishee “A debtor in whose hands a debt has been attached: i.e. he is warned not to pay his debt to any one other than the third party who has obtained Judgment against the debtors own creditor. A garnishee order is the order served on a garnishee attaching a debt in his hands." The phrase attachment of debts, in part is defined in the following manner: - “A proceeding employed in actions ... where a judgment for the payment o f money has been obtained against a Judgment debtor to whom money is swing by another person (called the garnishee); in such a case the Judgment creditor may obtain an order that all debts owing or accruing from the person (the garnishee) to the Judgment debtor shall be attached to the Judgment debtor. The effect o f this Order is to bind the debt in the hands o f the garnishee ....” (emphasis supplied). Those terms have been defined to clarify the arguments by the learned counsel for the applicant who has strongly submitted that their intention in their application was to seek an order of this court to lift the garnishee order issued to them by the Deputy Registrar and substitute the same with an order of deposit of security of the decretal amount. It is quite clear that once the garnishee order was applied for and signed, execution or enforcement process was put into motion. In this light, I am increasingly of the view that the subsequent application be it properly made by the applicant, seems to act as denying the decree holder to enjoy the fruits of the Judgment. Regarding the argument on the commentaries by Mulla on Section 151 of the Indian Code of Civil Procedure, that it is in parimateria with Section 95 of our Civil Procedure Code, I have no doubt it is so. This argument was put clear by the Court of Appeal of Tanzania in the case of Aero Helicopter (T) Ltd. vrs. F. N. Jansen (1990) T. L. R. 142 at page 146 that;- "... in this case the High Court is not shown to have any source o f authority fo r it to be seized o f the matter. The same is true also o f counseVs reference to the various passages in the commentaries by Mulla and Sakar on Section 151 o f the Indian Code o f Civil Procedure relating to the inherent jurisdiction o f the court to order a stay o f execution. Such reference would be relevant and o f assistance only upon showing that there is a provision o f law ... if that were shown, then it could be validly be said that once the matter is competently before the High Court, then that court can exercise its inherent jurisdiction or powers which it has under Section 95 o f the Civil Procedure Code to consider whether or not to order a stay o f execution...” As the Applicant has deponed under paragraph 6 of the affidavit in support of the Application that the Applicant is ready and prepared to deposit security for satisfaction of the decree in the event that the pending proceedings for stay of execution at the Court of Appeal of Tanzania are not successful; this court is of a considered opinion that it is ceased of jurisdiction to entertain this matter as held in this leading case that has been reiterated and cited with approval in the cases of Law Associates vrs. IPTL (2004) T. L.R. 276 at page 145 and William Mugurusi vrs. Stella Chamba (2004) T. L. R. 406 were it was held that:- “Once there is a notice of appeal the proceedings j-^se to be before the High Court and the Civil Procedure Code ceases to apply to the proceedings.” In Williams case (supra) it was held:- “(i) Once proceedings of Appeal to the Court of Appeal of Tanzania have been commenced, the High Court cannot properly apply the Civil Procedure Code and so the whole Civil Procedure Code is dis applied. (ii) It is not for the High Court to decide whether the intended appeal was competent or not. That was for the appellate court to say. The High Court had no jurisdiction in the matter.” In view of the above cited authorities, Mr. Nyika had submitted inter alia in respect of Section 151 by Mulla’s commentaries in the Indian Code of Civil Procedure and Section 95 of the our Civil Procedure Code that:- What they are asking the court to do is to lift the Garnishee Order that has already been issued and substitute with same by the order that had been made that they deposit security which was made by the same executing court. It is unknown at this stage whether or not the provisions cited by the learned counsel empowers this court to substitute orders with other orders of which such provisions cited do not confer jurisdiction to this court to do so as the learned counsel has submitted. It is obvious that the applicant was ordered to deposit the security for payment of the decretal amount of which they did not comply with. So when the Applicant was served with a garnishee order, it is when he through his advocate hurriedly made an application praying for this court to lift the garnishee and substitute with the order of 30th March, 2016 without indicating the enabling law. To this I agree with Mr. Mbise, the learned Counsel that it is a double pronged process. In the case of Joackim Kalembwe vrs. M. N. Mwamlima, Civil Application No. 76 of 1998, at Dar Bs Salaam, the Court of Appeal of Tanzania among other things, stated that:- "... it follows therefore that the stay order was being sought at a time when it would serve no useful purpose. The position is even more predicated now, it would equally be a futile exercise to have the order o f stay issued to day . . . I am firmly o f the view that what is sought in this application has been over taken by events * Again, in the Common Law case of Wincester Cigarette Machinery Ltd vrs. Payne and another (No. 2) the Times Law Reports, December, 15, 1993, the Court inter alia stated:- “In recent cases it has been said that the practice o f the court had moved on from the principle that the only ground for a stay was the reasonable probability that damages and costs paid would not be repaid if the appeal succeeded. Those cases held that the approach o f the court now was a matter o f common sense and a balance o f advantage ...but in holding any such balance o f advantage, fully and proper weight had to be given by the court to the starting principle that there had to be a good reason for depriving a plaintiff from obtaining the fruits o f a Judgm ent" (emphasis is mine). I have closely examined this principle in the light of the circumstances of this case; with respect. I am unable to go along with Mr. Nyika, learned Counsel that there are good reasons sufficiently for the grant of an order prayed for even on the basis of common sense and balance of convenience approach. Much as the learned Counsels for the parties have submitted herein well for and against the orders sought. However, in view of the submissions; it is quite clear and it has been admitted that the applicants have so far failed to honour the order issued on 30th March, 2016 which required them to deposit the decretal sum; Now this court wonders why should the applicant come now at this stage to make an application to comply with that order which they failed to honour within the specific time issued by the court, until when the court had issued the Garnishee Order? It all seems that the Judgment debtor intends to circumvent the orders of the court as rightly submitted by Mr. Mbise that it is a double pronged process. All in all for the foregoing reasons, I am of the considered view that having regard to the circumstances of the matter before me, good cause has not been shown warranting me to allow the application. In the event, the Preliminary Objection on point of law is sustained. The Application is struck out with costs. Order accordingly. A.F. NGWALA JUDGE 10/05/2016 Date: 09/05/2016 Coram: A. F. Ngwala, J. Applicant: Present For Applicant: Mr. Rwamzo Advocate assisted by Ms. Anna Mwakatundu (Legal Counsel) Respondent: Present For Respondent: Mr. Mbise (Advocate) Court: Ruling delivered in court on the presence of the parties and their respective Advocates. Court: Right of Appeal to the Court of Appeal of Tanzania explained. A.F. NGWALA JUDGE 10/05/2016