Civil Application No

IN TKE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. ?1 OF 2001 In the M atter o f an Intended Appeal BETWEEN MATSUSHITA ELECTRIC C0„ (S3.A .) LTD, . . . . . . . . . . . . . APPLICANT AND CHARLES GEORGE t/a C.C-. TRACERS. . . RESPONDENT (A p p lic a tio n fo r Stay o f Execution from the Judgment o f the High Court o f Tanzania a t Tabora) (Mwita, J « ) dated the 12th day o f March, 2001 in C i v i l Case No. 10 o f 1999 R U L I NG RAl'iADHANI, J . A . ; The a p p lica n t to--stay the -execution o f the decree o f MWITA, J . awarding TShs. 22,1^7,118/= with in te r e s t a t the ra te o f 7% p .a . from the date o f judgment, 12th March, 2001, to the date o f f u l l payment. Mr. E.D, K is u s i, learned ad voca te, represented the ap p lica n t and H r. M.K. M taki, learn ed counsel, advocated fo r the respondent, who r a is e d a p relim in a ry o b je c tio n . His contention was th at: The a p p lic a tio n is m isconceived because sin ce by the time ( s i c ) the applicctnt f i l e d the a p p lic a tio n execution o f the decree had commenced, the proper course o f a c tio n fo r the ap p lican t was to apply to r a is e the warrant o f attachment b e fo re the High Court which had in it ia t e d the execu tion p rocess. To a p p recia te the o b je c tio n i t is proper to put th is m atter in i t s h is t o r ic a l p e r s p e c tiv e . The judgment, as a lread y pointed ou t, was given on 12th March, 2001, and the n o tic e o f appeal was lodged three days la t e r , that i s , on 15 th March 2001. The respondent obtained a garnishee ord er on 2^-th May, 2001, and as a r e s u lt a t o t a l o f TShs. 22,5^1,0^6/'-, that i s , the d e c r e ta l amount plus some in t e r e s t , has b e e n .deposited in the High Court by the a p p lic a n t's bank. Mr. M taki in his submission in Court advanced two prongs o f a tta c k , which, in my opin ion , should have been in the a lt e r n a t iv e . The f i r s t prong was that sin ce the execu tion proceedings have been commenced in the High Court, then the a p p lica n t should go back to that court to r a is e the garnishee order and not to seek a stay o f •execution in t h is C ou rt, The learned advocate argued that Rule St which p rovid es fo r sta y o f execution, presupposes a s itu a tio n where execu tion has not commenced and n ot, lik e in the present case, where i t has. He c it e d s e c tio n 38 o f the C i v i l Procedure Code, 1966 , as p ro vid in g that questions o f execution have to be determined by the court execu tin g a d ecree. So, Mr. M taki contended th at the a p p lica n t ought go to the High Court and not come to th is Court. As fo r his second prong, Mr. M taki submitted that sin ce the d e c re ta l sum has been w holly deposited in to cou rt, then per 0 XXI E ^5 (3 ) execu tion is complete and there is nothing to s ta y . So, the learned advocate contended that th is a p p lic a tio n has been overtaken by events and th at i t should be stru ck ou t. Mr. K is u s i, on the other hand, was s p l i t t i n g hairs by subm itting that the garnishee order commanded the a p p lic a n t's bank, and not the a p p lic a n t, to pay the d e c re ta l amount in to c o u rt. So, he argued, the amount was not p aid by the applican t but by i t s bank. Mr. K is u s i then a . ./ 0 argued that as the amount was not paid to the respondent but was p aid in to the c o u rt, execu tion is not com plete. Then the learn ed advocate, r e ly in g on A ero ^ H elicopt e r (T ) L td . v . F «VJ, Jansen, C i v i l A p p lic a tio n No* 12 o f 1990 (CAT) ( u n rep orted ), submitted th at th is Court was the proper forum fo r th is a p p lic a tio n . I reserved making a ru lin g on the o b je c tio n and decided to hear tba main a p p lic a tio n and d ea l with the two m atters to g e th e r. The qu estion in the f i r s t prong o f a tta ck is : sin ce the High Court has issued a garnishee order and s in c e the d e c re ta l amount and some in te r e s t has been deposited in the High Court, which is the proper forum fo r th is a p p lic a tio n : the High Court or th is Court? The s t a r t in g p oin t is Rule 9 o f the Court o f Appeal Rules which provides th at the in s t it u t io n o f an appeal does n o t operate to sta y c-ut:Lan» That ru le p rovides as fo llo w s ; 9* - (1 ) No sentence o f death or corp ora l punishment s h a ll be c a r r ie d out u n t il the time fo r g iv in g n o tic e o f appeal has ex p ired o r , where n o tice o f appeal has been given u n til the appeal has been determ ined. (2 ) Subject to the p ro v is io n s o f su b-ru le ( 1 ) , the in s titu tio n o f an appeal s h a ll not operate to suspend any sentence or to sta y execu tion , but the Court may - (a ) ... (b ) in any c i v i l proceedin gs, where a n o tic e o f appeal has been lodged in accordance with Rule 76 , order a sta y o f execu tion , on such terms as the Court may think ju s t. ...A _ it - Thus a notice of appeal file d in this Couz't does net automatically stop the lower court from proceeding with execution. Therefore, the respondent properly applied for a garnishee order and the High Court correctly granted i t . As there is s t i l l no stay of execution order, there is nothing to stop the High Court at Tabora from ordering the whole amount deposited in court or any portion o f it to be released to the respondent. The rationale behind Rule 9 was stated by this Court in Ignazio Messina & National Shipping Agencies v« Willow Investment & Costa ^hingaAya, C iv il Reference Mo, 8 of 1999 (u n reported) page 3* to be that the successful part;/ should be able to enjoy the fruits o f the judgment. However, the import of paragraph (b ) of sub-rule (2) of Rule 9i as properly spelt out by my learned brother, KISANGA, J.A ., in Aero-Heli copter v, ^ Jansen, and reiterated in a number of decisions o f this Court, like Ignazio Messina^, cited above, is to empower this Court, and this Court only, to order a lovier court to -stay e x e c u t i o n . This is so in this case regarding the garnishee order. I am o f the o p in io n t lia t a. n o i i c . c c f ci.ppea.1 i-s file d u n der S ille 76, then this Court is seized of the matter in exclusion o f the High Court except for applications sp ecifically provided for, such as leave to appeal, provision of a certificate of point of lav; or execution where there is no order of stay of execution from this Court, Mr, Mtaki cited section 38 of the C iv il Procedure Code as providing that questions of execution are to be determined by the executing court and so the applicant ought to go to the High Court, With respect I do not think that this section is relevant here. That section provides as follows: 38 . - (1 ) A l l questions a r is in g between the p a r tie s to the s u it in which the decree was passed, or th e ir re p re s e n ta tiv e s , and r e l a t ing t o the execu tion , discharge or s a t i s f a c tio n o f the d ecree, s h a ll be determined by the court execu tin g the decree and not by a separate s u i t . (Emphasis su p p lied ) An a p p lic a tio n fo r stay o f execu tion under Rule 9 cannot be to be a separate s u it . So, the m atter is p rop erly b e fo re th is Court and th is is enough to dispose the p relim in ary o b je c tio n . I propose to deal with the respondent's second prong in the p relim in a ry o b je c tio n in the m erits o f the main a p p lic a tio n i t s e l f . Has execu tion been completed? I f ' i t has, then th is a p p lic a tio n fo r stay o f execu tion is superfluous. This Court s a id so in Bin Kleb Bus S e rv ic e v . AGIP (T ) L td . And Another, C i v i l Reference 10 o f 2000 (u n re p o rte d ). A d m itted ly, the d e c re ta l amount is ly in g in c o u rt. Does that make execu tion complete? I agree with the observation in Re Overseas A v ia tio n Engin eerin g (G .B .) Lt d . , 1 Ch. Zh a t 39* c it e d by Mr. K is u s i, that ■-execution is the process o f en fo rcin g -or g iv in g e f f e c t to the judgments i t is ’ com plete 1 when the judgment c r e d ito r gets the money or other th in g awarded to him by the judgment1''. Where the d e c r e ta l sum is ly in g in cou rt, as in th is case, then i t is obvious that the judgment c r e d ito r has not got what was awarded to him. D eposition o f the d e c re ta l amount in court only takes i t out o f reach o f both p a r t ie s . T h erefo re, execution is not com plete. .../6 Mr. Mtaki cited. 0 XXI I;. ^5 (3) as providing that once decretal amount is deposited into a court then execution is complete# With due respect, again, that is not so. That rule, according to the marginal note, deals with ‘'attachment of debt, share and other property not in possession of judgment debtor". The section provides that such payment sh a ll discharge a debtor (‘as effectually as payment to the party entitled to receive the same"'. This does not mean that execution is complete because an order has s t i l l to be made for the monies to be released to the decree holder. Mr. K is u s i prayed that the monies remain in c o u r t-u n til the i in a liz a t io n o f the ap p eal. Ha gave a. number o f reasons. It is obvious that the d e c r e ta l amount is a c o lo s s a l sum. I am s a t i s f i e d that should the appeal succeed, i t may be d i f f i c u l t to recover that amount from the respondent i f he is p a id . I a lso agree with Mr. K isu si that by r e ta in in g that amount in co u rt, the balance o f ■convejaien.ee is accom plished. For the reasons given above I grant a s ta y o f execution and a i'fia v that th * dp-orofajl amount r^i4aip-ci in cou rt u n t il the fin a liz a t io n o f the appeal or as w i l l be subsequently ordered by th is Court. Costs to fo llo w the e v e n t. DATED a t DAE ES BALAAM th is 17th day o f August, 2001. A .S „L „RAMADKANI JUSTICE OF APPEAL I c e r t i f y that th is is a true copy o f the o r ig in a l. \ ( . REGISTRAR