loans and advances realization trust vs patrick k mungaya others 2005 tzhc 133 25 april 2005

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL REVISION NO. 7 OF 2005

LOANS AND ADVANCES REALIZATION TRUST...................................APPLICANT

VERSUS PATRICK K. MUNGAYA & 46 OTHERS ... RESPONDENTS 4

RULING MANENTO. JK: This is a ruling emanating from a chamber summons filed under a certificate of urgency by Law Associates (Advocates) for the applicant, Loans and Advances Realization Trust. The application is filed under section 95 of the Civil Procedure Code, 1966, Section 43 (3) and 44(1) of the Magistrate’s Courts Act, 1984 as amended by Act No. 25/2002 and any other enabling provisions of the law. This application is supported by an affidavit of one Mr. Burton K. Mwakisu, a principal officer of the applicant. The application is for the calling and inspecting the records and the proceedings, ruling and order of the Resident Magistrate’s Court at Kisutu, issued on 26th January, 2005 in Employment Cause No. 20/2002 with a view of examining the same and satisfy itself as to their correctness, propriety, legality or otherwise. 2(a) That the said ruling be revised and set aside; (b) That the execution proceedings and garnishee order for the amount o f shs. 208,723,360/= served upon the applicant’s banker, Standard Chartered Bank, NIC Life House, Dare s Salaam be ordered that is illegal null and void; (c) Any other relief that the court shall deem appropriate and costs o f the application. In the accompanying affidavit, the applicant deponed that the respondent had instituted Employment Cause No. 20/2002 by way of a labour officers report in which the respondents were claiming

a sum of money amounting to shs. 55,455,216/=. At the end of the proceedings and judgment, the court decided on their favour and awarded the amount of money as prayed, concluded with the words “no more no less”. A decree to that effect was issued, dated 4th June, 2005. A garnishee order n|si was issued. However the applicant filed an application to stay execution and lifting of the Garnishee Order pending application for review on the ground of illegality and the court’s lack of jurisdiction. Before the hearing o f the application, the court issued Garnishee order absolute. 3 That the court served the branch manager of the applicant’s banker with a notice to show cause why he should not be committed to civil prison for contempt of the court by failing to release the garnisheed sum of shs.55,455,217/=. That was followed by the issuing of a cheque No. 072779 of the decretal sum in the name of Super Action Limited was drawn and forwarded to the trial court. After the execution of the decree, the application for stay was heard and dismissed, for reasons, inter alia, that the application had been overtaken by events since the cheque had been cashed. As if that was not enough, the applicant deponed that, though execution had already been completed, yet on 4/5/2004 was again served with a garnishee order msi attaching shs.208,723,360 which was predicated on same matter, Employment

Cause No. 20/2002. The applicant filed an objection proceedings on the grounds inter alia that the purported execution proceedings and garnishee order were illegal as the decree on the same matter had already been satisfied. However, the application was dismissed with a further order that the garnishee order for shs. 208,723,360/= be executed forth with. Being aggrieved by that ruling the applicant deponed that having been advised by his advocates that this is a suit case for this courts exercise of its revisional and or supervisory powers over the proceedings and orders of the lower court, that the execution proceedings and decision complained of are tainted with illegality. There are also errors on the face of it in that: (a) The respondents got and executed all that they claimed in the Employment Cause No. 20/2002. (b) The amount sought to be executed by way of a garnishee is fictitious as there is no decree to that effect; (c) The agreement of 14/9/2001 referred in the impugned decision is the very one which formed the basis of the judgment and decree. The respondents acted by filing a counter affidavit to the effect that he disputed mainly paragraphs No. 7, 8, 11, 12 and 15 o f the affidavit. Patrick Mungaya, (whose signature have been disputed as shown below) is purported to have deponed in his 5th paragraph of the counter affidavit that issue of garnishee absolute was

clear for absence of stay of execution order. In his 6 paragraph, he deponed that the applicant had abandoned his application and that the application for stay of execution cannot in itself amount to order of stay of execution. In his 9th paragraph, he deponed that the document for T.shs. 208,723,360/= was served but no reply was made. He further deponed that the decree for shs. 208,723,350/= was a different one from the former decree and lastly that the ruling of the lower court was properly delivered. In substance, the respondent admitted the contents of the affidavit of the applicant save for paragraphs 7, 8, 11, 12 and 15 were true and correct. After the exchange of those documents inform of affidavits and counter affidavits, the learned counsel for the parties addressed this court on 25/2/2005, which address led to the end of the proceedings, hence this ruling. In his submissions before this court, Mr. Mapande, learned counsel for the applicant prayed to adopt the affidavit of Mr. Mwakisu in support of the Chamber summons as part o f his submissions, though in substance, he repeated the same in his submissions which I need not repeat. The applicant s learned counsel submitted that the branch manager o f the applicant’s bank issued the cheque for the garnisheed money amounting to shs. 55,455,216/= on fear o f being condemned to civil prison. That was because he had been

served with a notice to show cause as to why he should not be committed to prison for refusing to issue the garnisheed money. The court had also ordered that the cheque be drawn in the name o f court broker in the name of Super Auction Mart Ltd. The said auctioneer and court broker was not a party to the proceedings nor was he an executing person. Yet, the order of the court directed it to be paid to him. That action had been repeated again in the execution order for the money in dispute. I really don’t understand that procedure which the subordinate court adopted. Even though the decree for shs. 55,455,216 in Employment Cause No.20/2002 had been executed, yet another garnishee nisi was issued for the same decree, a fact contradicting section 28 of the Civil Procedure Code, 1966 which requires that a decree once executed, it ends the matter. The applicant filed a proceeding objection to the court but that application was dismissed with the following words: “I therefore find that the submitted claim of shs.208,723,360/= has substantive basis and is still unpaid and indeed predicates from the same Employment Cause No. 20/2001. I order that it should accordingly be executed in favour of the respondents. It is ordered accordingly....” As we shall see below, I don’t see the basis of those strong words by trial Resident Magistrate. I say so because Employment Cause No. 20/2002 which

emanated from the Labour Officers report for 47 employees had been executed as per Judgment and decree of Mafuru, Rm to that effect. I say so because a decree is defined by section 3 of the Civil Procedure Code, 1966 as a final result of a suit. In identifying another abnormality in the garnishee order, Mr. Mapande, learned counsel submitted that it was ordered to be paid to a stranger to Employment Cause No. 20/2002. He was one Andrew Nkwasi. I also share the same surprise. I really don’t know why the respondents were hiding identity of the payee, and the trial magistrate agreed to be misled and make orders which are not backed by the proceedings. Perhaps that is why the applicants were submitting that there were grounds or reasons to believe of the existence of fraud. Before he made his concluding prayers, Mr. Mapande, learned counsel wanted this court’s direction as to the authentic of the signature of one Patrick A. Muganya in the counter affidavit purported to be sworn by him. He submitted that, that signature differed significantly with other signatures he had signed, and that discrepancy needed no handwriting expart to tell the difference. He called on this court to hold that the said signature was a forged one and it is held so, then it amounts to fraud and therefore, fraud vitiates everything. He sought authority of this court, Mihayo J. in Tanzania Breweries Ltd. v.

Allovce Muvai Civil Revision No. 9/2004 (unreported - Dar es Salaam Registry) where his lordship said in his ruling that “comparing of signatures is a duty of the court”. He held it as settled law. The learned counsel further called upon this court to compare 8 the signature appearing in the counter affidavit to those in the documents filed in Employment Cause No. 20/2002 by Patrick Mungaya. The instances to be compared are: (1) Legal arguments for violation Payments claims of the 47 workers filed on 11/8/2003; (2) Tarehe za Mahudhurio Mahakama Kisutu” i.e. date of attendance at Kisutu Court. (3) Counter affidavit dated 18/5/2003 (4) Application for execution of decree (5) Affidavit dated 24/7/2003. The learned counsel ended his submissions by saying that in view of the differences in the signatures, which lead to forgery, whose consequence is to vitiate everything, then all the proceedings in the lower court be declared a nullity so that the decree and the garnishee order for the tune of shs.208,723,360/= be declared illegal, nullity and void. In his reply to the submissions by the learned counsel for the applicant, Mr. Muyovela, learned counsel for the respondents submitted that even if there are slight differences in the signatures of Patrick Mungaya in the counter affidavit and those other cited 9 documents, yet he is the very one person who signed them. He had nothing to

fear of cheat when filing the counter affidavit. That counter affidavit is just a requirement that should be filed. He further submitted that, that was a document filed which is a different thing from a document tendered during the proceedings in support of something. Therefore, the cases cited are differentiated, from Mr. Patrick Mungaya was just fulfilling the requirement of the law or procedure and not proving anything. On the main application, that is the garnishee order dated 5/4/2004 for shs. 208,723,360, he submitted that it was the difference of the money paid in respect of the Resident Magistrates Employment Cause No. 20/2002. He said further that, the said amount of money had been agreed between the members of TAFCO and the Liquidator who is the applicant. That the applicants having been served with the documents annexutre DI, they failed to respond at the subordinate court, a fact which led to the issuing of the garnishee nisi to the applicant’s banker, the Standard Chartered Bank. The learned counsel further submitted that having failed to respond further, a garnishee absolute was issued, basing on the judgment of Mafuru, Rm in Employment Cause NO. 20/2002. The learned counsel did not agree 10 with the submissions of the applicant’s advocate, that the judgment of Mafuru, Rm, was conclusive. Before I proceed, I would like to say that the judgment of Mafuru Rm resulted from the labour officer’s report made under section 132 to a magistrate, Employment Ordinance, Cap.

366. In that report, the labour officer included only 47 employees who were to be paid a total of shs. 55,455,216/=. The judgment of Mafuru, Rm was for that sum couched with the words “not more, no less”. That was not enough, but a decree for execution of the sum of shs.55,455,216/= was prepared in conformity with the judgment as required under xxr 6 of the Civil Procedure Code, 966. The decree specified the amount of money due, which was shs. 55,455,216/= and the names of the parties were those appearing in the Labour officers report, whose leader was Patrick K. Mungaya. I don’t see, how Patrick Mungaya went again to the court to seek for more payment while he had already been paid in full together with the 46 others. The judgment o f Mafuru, Rm did not extend to beyond the amount of money stated in the decree which was fully paid to the decree holders. Mr. Muyovela, learned counsel submitted that there was a balance of money to be paid in accordance to agreement between 11 TAFCO members and the applicant. There is no where in the Employment Ordinance Cap 366 where it is stated that if there are such agreements, they could just be executed in a court of law. The courts do execute its decrees and nothing else. I am sorry to say that the learned Resident Magistrate, Mr. Mutungi, either deliberately or otherwise, was persuaded to execute a non existing decree. In his many, but

self centred words, appearing in his 7th page o f the typed ruling, he said: “What I can now only construe to be the factual status, is that, the amount now in dispute is the projected and or extracted less payments or variations to the payment otherwise eligible to have been paid to the respondents as ordered by this court in the cited judgment, which I dully find forms basis to this matter as well.” The learned Resident Magistrate chose to cheat himself and the respondents when he based his ruling on the judgment o f Mafuru, Rm. That judgment was conclusive by itself and it did not need to be supplemented by another ruling. Therefore then, the judgment of Mafuru, Rm was final and conclusive as far as the Employment Cause No. 20/2002 in regard to Patrick K. Mungaya and 46 others was concerned. The learned Resident Magistrate, in saying that “the amount now in dispute is the projected and or extracted less payment or variations to the payments otherwise eligible to have been paid to the respondents as ordered by this court “was nothing but alteration of the courts decision, which he had no legal powers to add or decrease as to what the said court had said. To do as to what he did, was a contravention of section 96 of the Civil Procedure Code, 1966 which deals with amendments of judgments, decrees or orders. The court has only powers to correct clerical or arithmetical mistakes

in judgments, decrees or orders of errors arising therein from any accidental slip or omission. Those could be corrected at any time by the court either of its own motion or on the application of any of the parties. The trial Resident Magistrate was not doing that, he was actually executing a non existing judgment and a decree, but pegging his illegal ruling on an already executed decree of the said court. That is no wonder, because he was persuaded to allow a stranger to proceedings to be paid the garnisheed money, a fact which would have created another problem, if the money could not have reached the decree holders if any. Mr. Muyovela, learned counsel for the respondents submitted further that both applications before the subordinate court and before this court be struck out because the money which were to be garnisheed at the Standard Chartered Bank was the property of the applicants and the lower court was entitled to disallow the claim. The basis of that submission is rule 60 of Ord. XI. He prayed that the execution of the garnishee nisi be allowed. The applicants learned counsel replied to the effect that the objection is to the execution of the decree which had already been executed, so their claim should not be disallowed. Their objection to attachment was in conformity with r.58 of ord.xi. What I had been saying at length is that, the application was and is competent

before the lower court and before this court. It is aimed at preventing an illegality which was about to be committed. The illegality being the attachment of the applicants bank account, which was soon to be released by the Standard Chartered Bank. Thus the objection before the lower court and before this court was properly made before the courts in objection to the said attachment of money in execution of a non existing decree. In the chamber summons, the applicant requested for the calling of the records of the proceedings, ruling and order of the Resident Magistrate’s Court at Kisutu, issued on 26/1/2005 in Employment Cause NO. 20/2002 with a view of examining the same and satisfy itself as to their correctness, propriety, legality or otherwise. From what I have already endeavored to show in this ruling, it is clear that those proceedings and ruling were not correct in the sense that there was no judgment and a decree to be executed and or executed on 26/1/2005 in the employment cause No. 20/2002. they were neither propriety or legal proceedings before the court, hence, they are quashed and set aside. The execution proceedings as well as the garnishee order for the amount o f shs. 208,723,360, served upon the applicant's banker, Standard Chattered Bank, NIC Life House, Dar es Salaam is illegal, null and void. The application is therefore granted as prayed. Usually, costs for

orders are no. made in Employment cause, but having found that those execution proceedings were just illegal and non existing on the lace o f it, coupled with a lot o f doubtful dealings, the applicants are entitled to the ’ costs o f thj suit, in this court and at the Subordinate court. It is so ordered v c .° ' -e . r- , * \ - ■- A.R. a Manento 254.2m .5- • / im m m m u. Corarrr; __sShayo, RHC. For the Applicant - Absent For the Respondent - Patrick Mungaya present in person. Order: Ruling delivered today in chambers 25/4/05 in the presence o f the Respondent in person. The applicant is absent with notice. A.A. Shayo

REGISTRAR

HIGH COURT 25/4/05