JUN YU INVESTMENT

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA MISCELLANEOUS CIVIL APPLICATION NO. 000020617 OF 2024 JUN YU INVESTMENT INTERNATIONAL COMPANY LTD T/A MOSHI CEMENT .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF FENG HU A.K.A FANG GUO .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF ZHI FANG GUO A.K.A WANG ZHIFANG .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS DAVID GODWIN MMBAGA T/A MMBAGA GEMS .............................. RESPONDENT / DEFENDANT RULING BADE, J, RULING 12/09/2024 & 20/09/2024 BADE, J. Image not found or type unknown This is a Ruling on the Application for a stay of execution which was filed under a certificate of urgency based on the fact that the execution proceedings are underway. The said Application is brought under the Page. 1 Image not found or type unknown provision of Order XXI Rule 24 (1) and Rule 27 of the Civil Procedure Code Cap 33 (R.E. 2022) and any Image not found or type unknown Image not found or type unknown other enabling provisions of law. The parties in this matter were both represented by legal counsel with Ms. Fredy Kimaro, learned counsel Image not found or type unknown representing the Applicant and Mr. Saidi Said, learned counsel representing the Respondent. Image not found or type unknown Image not found or type unknown The Applicant lodged a chamber summons supported by an affidavit of the director of the first Applicant sworn by Liu Zheng for an order staying execution of Execution Cause No. 8430 of 2024 on the decree issued vide Civil Image not found or type unknown Case No. 07 of 2023 by this Court passed on 7/11/2023, pending hearing and determination of an Application to set aside an Ex-parte Judgment in Civil Case No. 07 of 2023 through Miscellaneous Civil Application No. 20440 of 2024 which is pending determination before this Court. Page. 2 When the matter was called for hearing, counsel for the Applicant raised a concern that the affidavit filed by the Respondent was defective as the same has been drawn, filed, and attested by the same advocate contrary to what section 7 of the Notaries Public and Commissioners for Oaths Act requires, as it prohibits the advocate who is representing a party from acting for that same party. Image not found or type unknown Upon the court scrutinizing the filed affidavit, it was indeed found to have such defect, against which the Respondent’s counsel resists on the basis of the fact that while the counter affidavit is admittedly defective, he was present in court to defend and argue the application and that he is not precluded from doing so since he was not the one who drafted and filed the said counter affidavit. On this account, the court proceeded to strike out the counter affidavit of David Godwin Mmbaga; the Respondent in the matter as the same had been drawn, filed and attested by the same advocate Upendo Mulazi, in a clear contravention of the law as stated, with the effect of making the Application uncontested by a counter affidavit. Image not found or type unknown Image not found or type unknown At this point it will be prudent to put the context in the present Application. The Respondent sued the Applicant in Civil Case No. 7/2024 which was heard ex parte due to non-appearance of the Applicant since they were unaware of its existence. They came to know it in August 2024 when the Applicant was made to show cause on the pending Execution Application. On knowing the existence of the case, they were aggrieved but found themselves out of time to set aside the exparte judgment that was issued against them, which made them file an application to extend the time to set aside the ex parte judgment. This is the application that is also pending before this court and it is scheduled to be heard later in October 2024. The Counsel for the Applicant made a plea in his submission that the execution proceedings are still underway as the decree is partly executed, and if the proceedings will not be stayed, then the application to extend time and set aside the exparte decree before this court will be rendered nugatory and of no use. Page. 3 The counsel for the Applicant endeavored to show the presence of sufficient cause as required under Order 21 Rule 24(1) and Rule 27 of the Civil Procedure Code. He enumerated the four conditions that need to be met for stay to issue, that is 1. Ther has to be proceedings that are pending in court, 2. It has to be demonstrated that if order of stay is not in granted, substantial loss will be suffered by the Applicant, 3. The application for the said order has been made without undue delay; and lastly that 4. Security for costs has been undertaken to be furnished by the Applicant. Mr. Kimaro argues that the first condition is met as there is a pending suit before the court. as explained before, there has been filed in court Application No 20440 of 2024 applying to extend time to file application for setting aside the ex parte judgment. This is in tandem with the case of Tanzania Portland Cement Ltd vs Hadija Kuziwa, Civil Application no 854 of 2023 (Tanzlii) Contextualizing the second condition, the counsel contends that the first applicant shall suffer substantial loss as deponed in paragraph 11 and 12 of the affidavit, that the applicant will lose money which they depend to run their day to day business activities. Arguing further, the counsel for the Applicant explained that this loss was unexpected because the applicants were not involved in the transaction that gave rise to the suit that resulted in the ex parte decree, and in a cause in which they were never heard. In his view, the applicant will likely triumph on the application to extend time to set aside the exparte judgment as the said judgment was arrived at based on irregularities, as deponed in paragraph 14 of the applicant’s affidavit. Arguing for the third condition, the counsel contends that there has not been undue delay as the first applicant was unaware of the pending suit until 14/08/2024, after which they filed an Application for extension of time on 21/08/2024 for setting it aside. Also the instant application was filed a day later on 22/08/2024. Lastly, the Applicant’s counsel maintained that as per paragraph 15 of the affidavit, they have shown their willingness to furnish security for costs in the form of a bank guarantee or any other mode as it shall be ordered by the court. Opposing the grant of stay order, counsel for the Respondent Mr. Said argued that the gist of the present application for stay is captured in paragraph 14, on the issue of freezing their bank account. He explained that the court had issued a garnishee order absolute on 27/08/2024 over execution no 8440 of 2024. In his view, the stay application is overtaken by event and of no use at this point. In further argument, he maintains that legally speaking, once the garnishee order is made, there is nothing left in court, as far as the proceedings are concerned, and thus the court is effectively functus officio. He referred to the Page. 4 case of St John’s University vs Jaffery Industries Saini and Another, Miscellaneous Commercial Application No 64 of 2021, where on page 11 the court is quoted as saying “….. the court is no longer able to halt its decision other than challenging the said decision by way of an Appeal.” Responding against the submission specifically on the conditions stipulated by the applicant’s counsel on substantial loss, he attacked the counsel for failing to explain how the applicant will loose the money, or there being irregularities, demanding for better particulars on the loss to be suffered by the applicant. Also on the third condition, he denied that the application was made without undue delay, as there was a time lapse of 8 days without accounting for it by the Applicants, praying it be dismissed. Rejoining, the counsel for the Applicant while conceding that a garnishee order absolute had issued, he argued the same had happened while the Application for stay was pending in court. he explained further that the Applicant still wanted to pursue the matter as the decreed amount is not wholly fulfilled since there was insufficient amount of money in the Applicants bank account. He clarifies the fact that the amount frozen so far is about TZS 871,240,000 making short TZS 400,000,000 for the whole decretal amount to be fulfilled, insisting that it is just for the court to issue stay order. On the issue of losing money and that the transaction has been overtaken by event, he insisted that the same is not the case as the decree is yet to be fully fulfilled. Distinguishing the cited case the counsel argued that in the cited case, the whole of the decretal amount was actually satisfied under the garnishee order absolute, while in the instant case, the claimed decretal amount is yet to be fulfilled with the execution application is still pending. Having heard the counsel for the parties, I had issued an interim order in favor of the Applicant, and now this is the written Ruling. As I considered the Application, I think the issue needing determination is whether the order for stay is grantable in consideration of the fact that a garnishee order absolute has issued and been partly acted upon. This takes me straight to the argument by the counsel for the Respondent that the court is functus official. In my view, this is not true, and for one simple reason, that while ideally in a garnishee proceeding the Judgment Debtor is not a party to it but is entitled to be served with the requisite processes. However, the judgment debtor may exercise their right to step in and protect the res or the judgment sum where it can be shown that the Court may have erred in issuing the Garnishee Order Absolute, or where the judgment of the Court was in respect of an unliquidated sum of money yet to be agreed and ascertained by the parties, or the ascertainment of a calculated sum to which a Garnishee Order may apply had not been done. In all of these cases, the Judgment Debtor can protest the attachment of his funds in possession of the Garnishee and take a step further to apply for a stay of execution pending the conclusion of all legal processes in respect of the subject matter. In my mind, I think the issue brought up by the Applicant that they were not a party to the transactions that gave rise to the civil suit that resulted in the exparte judgment is enough to justify the stay of the garnishee proceedings. Page. 5 The judgment debtor has the locus standi and sufficient legal interest to apply for a stay of execution of the garnishee proceedings since in my considered view, the law is that the person whose money with the garnishee is being attached has a right to stay the attachment of his funds by Garnishee Order Absolute pending the conclusion of any legal process to challenge the decision of the garnishee proceedings or the substantive case that formed the basis of the garnishee proceedings. Also, as it has happened in the instant case, the garnishee was unable to satisfy the whole of the judgment debtor’s debt due to lack of funds, which means the judgment creditor may have to find other options to pursue or other legal avenues to collect the remaining amount owed, including seeking out additional garnishees who may hold funds that can be used to satisfy the judgment debt. In essence, one can not place a state of fait accompli on the court even when there are irregularities or injustice. The objective of granting a stay has always been to strike a just and reasonable balance between the warring parties in order not to render the other proceedings in court nugatory. In other words, it is preserving the rights of the opposing parties before determining such rights as it is the right of the decree-holder to reap the fruits of his decree, as well as that of the judgment-debtor not to get a barren success in case he wins. See Mekafason Mandali & 8 Others vs Regd Trustees of the Archdiocese of Dar es Salaam, Civil Application No 491/17 of 2019, Dr. Luis B Shija vs Kellu Kamo Lucas, Civil Application No 209/14 of 2024 as well as the discussion in Director Tanga Cement Company Ltd vs Ephraim Joram in Civil Application No 307/18 of 2024. (TANZLII) On the basis of the foregoing, I allow this Application and grant the order of stay of execution. The decree absolute ordered is hereby stayed, and the whole execution proceedings are stayed until after the court has heard and determined the Application to extend time to apply to set aside the ex parte decree. Costs shall follow the cause in the event. Dated at ARUSHA this 13th of December 2024 . A. Z BADE JUDGE OF THE HIGH COURT Page. 6